I want to outline a truly interesting case not long ago determined in the Criminal Court of Appeal, Jenkins v R (2025) EWCA Crim 1657 because I would argue it tells us a lot in an easy-enough-to-follow case study about how the British criminal justice system deals with things where crime and mental disorder collide and where information about someone’s mental disorder changes over time.
Jamie Jenkins, the appellant, was convicted of robbery in 2009 and sentenced to an indeterminant sentence for public protection (IPP), with a minimum tariff of two years (less the period of more than a year he spent on remand leading up to the sentencing). Subject to the “public protection” aspect of his sentence which we will come to directly, he could have been released a few months after his sentence was passed. Yet here we are, over sixteen years later, and he remains in prison, appealing against his sentence which has no end in sight.
Spoiler alert: the Court of Appeal has quashed his IPP sentence and replaced it with a restricted hospital order under s37/41 of the Mental Health Act 1983.
MENTAL ILL HEALTH
Mr Jenkins suffered from serious mental health problems and had significant contact with the criminal justice system before 2009. During his sixteen years in prison, there were a number of factors which influenced the ongoing public protection assessment of his sentence which could give rise to considerations of release –
- Limited and sporadic compliance with treatment for his mental health problems.
- Serious violence and disruption in prison, including fire-setting.
- Various periods of transfer to a mental health unit, under s47 MHA for treatment he lacked insight to see was necessary to keeping him and others safe.
- He was – and still is – viewed as a vulnerable but dangerous man who poses a risk to himself and others, more so the latter.
He attempted to appeal against his sentence in 2010 and this was rejected; he asked the Criminal Cases Review Commission (CCRC) in 2017 to re-examine his case and that didn’t fare much better but by 2020 he had been examined by psychiatrists not previously involved in his care or original sentencing. Their assessment, more in depth and benefitting from years of clinical observations from a range of doctors, caused them to disagree with Dr Levy, the original psychiatrist in 2009 who was involved in the original sentencing.
NATURE OR DEGREE
There is criticism here which seems quite fair. It is reported Dr Levy’s assessment of Mr Jenkins lasted “five minutes” and inevitably, other psychiatrists know Mr Jenkins far better from longer periods spent caring for him in mental health hospitals whilst under transfer from prison. Crucially for the legal argument in the Court of Appeal, Dr Levy had stated the defendant suffered from schizophrenia but that it was not of a “nature or degree” which required treatment in hospital and that necessary treatment was available to him in prison.
Of course such an assessment hangs on the willingness of any prisoner to receive treatment in prison, because they cannot be compelled to do so under the MHA whilst there. In the sixteen years whilst Mr Jenkins was serving his IPP sentence, he was transferred to hospital a number of times because he became non-concordant with medication and became very difficult to manage safely in a custodial setting, including assaults on prison officers and he was prosecuted in the Crown Court for various violent offences committed in prison. Sentences for these further offences were then added on to his IPP sentence.
The new psychiatric evidence from 2020 pointed towards a different viewpoint, influenced by what became known during years in custody – that Mr Jenkins psychiatric condition WAS considered to be of a nature, if not a degree, that justified treatment in hospital. This was argued to be obvious from the various transfers that had to take place over the years and what became known about his engagement or withdrawal from treatment in the two different legal scenarios of being a sentenced prisoner and then being a hospital patient under the MHA.
THIRTY-SEVEN / FORTY-ONE
There is reference within the ruling about whether a section 45A or so-called “hybrid order” would be preferrable but the clinical view was consisted that nothing about Mr Jenkins condition suggests he could be safely managed in custody towards the end of any sentence but this appeal also tells us something else about how the courts reached the conclusion in the end that a section 37/41 restricted hospital order was the correct sentence to impose, on appeal. If the debate about all that interests you, you can read more about how judges approach decisions between those two frameworks after the Nottingham attacks in 2023.
It is obvious from reading this judgment, there is genuine anxiety about how Mr Jenkins might react to community mental health support if he were ever released from prison having served his sentence. If released from an IPP or a s45A order, he would not be subject to the Mental Health Act 1983 at all. If he were made subject to a 37/41, he would inevitably be “conditionally discharged” to a community forensic mental health team and this means ongoing oversight by mental health services and an ability in law if relapse gives rise to fear of risk being realised, to return a community patient back to hospital where they again become a 37/41 patient and without need for an Approved Mental Health Professional (AMHP) led Mental Health Act assessment.
This post inevitably summarises – it was a case which unfolded over sixteen years which had a complicated background to begin with. I would encourage anyone interested in the issues at play to read the judgment for themselves – it’s by no means the longest or most complicated thing you could read coming out the Court of Appeal and it will illuminate the above with greater detail.
Interesting case – give it a read.
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All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2026
I am not a police officer.
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