(1)The following provisions apply where, immediately after a decision of the Court of Appeal from which an appeal lies to the [F1Supreme Court], the prosecutor is granted or gives notice that he intends to apply for, leave to appeal.
(2)If, but for the decision of the Court of Appeal, the defendant would be liable to be detained, the Court of Appeal [F2shall make—
(a)an order providing for his detention, or directing that he shall not be released except on bail (which may be granted by the Court as under section 36 above), so long as the appeal is pending, or
(b)an order that he be released without bail.]
[F3(2A)The Court may make an order under subsection (2)(b) only if they think that it is in the interests of justice that the defendant should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.]
(3)An order under [F4subsection (2)(a)] shall (unless the appeal has previously been disposed of) cease to have effect at the expiration of the period for which the defendant would have been liable to be detained but for the decision of the Court of Appeal.
(4)Where an order is made under [F5subsection (2)(a)] in the case of a defendant who, but for the decision of the Court of Appeal, would be liable to be detained in pursuance of—
(a)an order or direction under [F6Part III of the Mental Health Act 1983 (otherwise than under section 35, 36 or 38 of that Act)] (admission to hospital of persons convicted by criminal courts); or
[F7(b)a hospital order made by virtue of section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964 (powers to deal with persons not guilty by reason of insanity or unfit to plead etc),]
the order under [F5subsection (2)(a)] shall be one authorising his continued detention in pursuance of the order or direction referred to in paragraph (a) or (b) of this subsection; and the provisions of [F6the Mental Health Act 1983] with respect to persons liable to be detained as mentioned in this subsection (including provisions as to the renewal of authority for detention and the removal or discharge of patients) shall apply accordingly.
[F8(4A)Where an order is made under [F9subsection (2)(a)] in the case of a defendant who, but for the decision of the Court of Appeal, would be liable to be detained in pursuance of a remand under [F10section 36 of the Mental Health Act 1983] or an interim hospital order under [F10section 38] of that Act, the order may, if the Court of Appeal thinks fit, be one authorising his continued detention in a hospital or mental nursing home and in that event—
(a)subsection (3) of this section shall not apply to the order;
(b)[F10Part III of the said Act of 1983] shall apply to him as if he had been ordered under this section to be detained in custody so long as an appeal to the House of Lords is pending and were detained in pursuance of a transfer direction together with a restriction direction; and
(c)if the defendant, having been subject to an interim hospital order, is detained by virtue of this subsection and the appeal by the prosecutor succeeds, subsection (2) of the said section 31 (power of court to make hospital order in the absence of an offender who is subject to an interim hospital order) shall apply as if the defendant were still subject to an interim hospital order.]
[F11(5)The defendant shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—
(a)the Court of Appeal have made an order under subsection (2)(b), or
(b)the Court have made an order under subsection (2)(a) but the order has ceased to have effect by virtue of subsection (3) or the defendant has been released or discharged by virtue of subsection (4) or (4A).]
Textual Amendments
F1Words in s. 37 substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 9 para. 16(6); S.I. 2009/1604, art. 2(d)
F2Words in s. 37(2) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 13(2); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26 (with Sch. 2 paras. 7 14)
F3S. 37(2A) inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 13(3); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26 (with Sch. 2 paras. 7 14)
F4Words in s. 37(3) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 13(4); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26 (with Sch. 2 paras. 7 14)
F5Words in s. 37(4) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 13(5); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26 (with Sch. 2 paras. 7 14)
F6Words substituted by Mental Health Act 1983 (c. 20, SIF 85), Sch. 4 para. 23(g)
F7S. 37(4)(b) substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 60, Sch. 10 para. 5 (with Sch. 12 para. 8); S.I. 2005/579, art. 3(g)
F8S. 37(4A) inserted by Mental Health (Amendment) Act 1982 (c. 51, SIF 85), Sch. 3 para. 39(a)
F9Words in s. 37(4A) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 13(6); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26 (with Sch. 2 paras. 7 14)
F10Words substituted by Mental Health Act 1983 (c. 20, SIF 85), Sch. 4 para. 23(h)
F11S. 37(5) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 13(7); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26 (with Sch. 2 paras. 7 14)
Modifications etc. (not altering text)
C1S. 37 modified (14.7.2008) by The Criminal Justice and Immigration Act 2008 (Transitory Provisions) Order 2008 (S.I. 2008/1587), arts. 1(1), 5