England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2000] EWCA Crim 2, (2001) 57 BMLR 123, [2000] 2 Cr App R (S) 227, [2000] Crim LR 309, [2000] MHLR 1, [2000] 2 Cr App Rep (S) 227

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NEWMAN, R v. [2000] EWCA Crim 2 (18th January, 2000)

Case No: 1999/02715/Z2

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 18 January 2000

B e f o r e :
LORD CHIEF JUSTICE
Mr JUSTICE GARLAND
and
Mr JUSTICE NELSON

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	R.
	- v -
	DEAN DAVID NEWMAN

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Brian Barker QC (assigned by the Registrar of Criminal Appeals for the appellant)
Dr David Thomas (instructed by the Treasury Solicitor as amicus)
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Judgment
As Approved by the Court
Crown Copyright ©

Tuesday, 18 January 2000
JUDGMENT

LORD CHIEF JUSTICE:
Early in June 1998 Ivy Newman was savagely murdered and her body violated in her East London flat. It is unnecessary to set out the details, many of them horrifying and some of them bizarre, suggestive of acute mental disturbance in the murderer. The appellant, her grandson now aged 29, was charged with her murder. On re-arraignment he pleaded guilty to her manslaughter on the ground of diminished responsibility, and that plea was accepted by the Crown. On 29 March 1999 the sentencing judge held that he was bound by section 2 of the Crime (Sentences) Act 1997 to impose a sentence of life imprisonment and did so, specifying five years and three months as the term to be served for purposes of section 28 of that Act.
The issue in this appeal is whether the sentencing judge on all the facts could, and should, have made a hospital order subject to restrictions and without limit of time instead of passing a life sentence.
The appellant has a criminal record dating back to 1987. In 1991, for shoplifting, he was made the subject of a hospital order. In January 1992, for offences of causing grievous bodily harm with intent, possessing an offensive weapon in a public place, kidnapping and false imprisonment he was again made the subject of a hospital order. These convictions arose out of a very serious attack by the appellant with a knife on a stranger whom he met on a train and to whose behaviour, for no good reason, he took exception.
Before the sentencing judge on 29 March 1999 were a series of psychiatric reports. Dr Boast made reports dated 10 February, 17 February and 26 March 1999. He had seen the appellant professionally in 1991, and had in December 1998 considered him unfit to plead. He advised that at the time of his grandmother's killing the appellant had suffered from a paranoid psychotic illness which had substantially impaired his mental responsibility for his actions. He thought his condition treatable, and thought him a suitable subject for a hospital order. Dr Joseph, instructed by the Crown, made substantially the same diagnosis and recommended a hospital order under sections 37 and 41 of the Mental Health Act 1983. Before the judge were the certificates necessary to authorise the admission of the appellant to Rampton. Passing sentence, the judge thought it "as plain as can be that you are mentally ill". But there were in his judgment no exceptional circumstances which would have justified him in passing anything other than a life sentence.
The case was one to which section 2 of the 1997 Act plainly applied, since the wounding with intent conviction in 1992 was of a serious offence within section 2(5)(d) and the manslaughter conviction fell within section 2(5)(c). Could the judge properly have treated the appellant's acute mental illness as an exceptional circumstance justifying the making of a hospital order instead of a sentence of life imprisonment?
To this question statute compels a negative answer. As amended by the1997 Act, section 37(1) of the Mental Health Act 1983 permits the making of a hospital order on conviction of an offence punishable with imprisonment
"other than an offence the sentence for which is fixed by law or falls to be imposed under section 2(2) of the Crime (Sentences) Act 1997 ...".
Section 37(1A) permits the court to make a hospital order instead of imposing the mandatory penalties provided by sections 3 and 4 of the 1997 Act, but section 2 is omitted. Section 55(2)(a) of the 1997 Act recognises, as does section 2(2) itself, that the court need not impose a life sentence if there are exceptional circumstances which justify it in not doing so, but the possibility of doing so on grounds of mental illness alone is blocked by section 45A(1) of the Mental Health Act, which provides:
"(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law -
(a) the conditions mentioned in subsection (2) below are fulfilled; and
(b) except where the offence is one the sentence for which falls to be imposed under section 2 of the Crime (Sentences) Act 1997, the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment ... in respect of the offence."
We have been referred to nothing which in any way contradicts the clear effect of the statutory provisions we have mentioned. No alternative answer has been suggested by Dr David Thomas, whom the Attorney General has helpfully instructed to help us as an amicus.
It is not suggested that there is here any exceptional circumstance other than mental illness. That alone will not avail the appellant. We must dismiss the appeal. It is a matter for concern that a defendant so obviously and acutely suffering from mental illness should be ordered to prison and not to hospital: even though, in practical terms, the difference between the two orders may lie less in the mode of treatment after sentence than in the procedure governing release and recall, we regret our inability to make what seems on the medical evidence the more appropriate order.