England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		27 April 2010

THE LORD CHIEF JUSTICE: I shall ask Mr Justice David Clarke to give the judgment of the court.

MR JUSTICE DAVID CLARKE:

1. On 5 September 2002, in the Crown Court at Preston, the applicant, who is now aged 48, pleaded guilty to two offences of arson being reckless as to whether life was endangered. On 14 October 2002, before His Honour Anthony Proctor, sitting as a Deputy Circuit Judge, he was sentenced to five years' imprisonment on each count concurrently. He was also ordered to serve twelve months of the outstanding sentence pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, making a total of six years' imprisonment.
2. On 20 February 2003 this court reviewed the sentence of five years' imprisonment following a Reference by the Attorney General under section 36 of the Criminal Justice Act 1988. It quashed the sentence of five years' imprisonment and the section 116 order and imposed in their place a sentence of life imprisonment, with a period of three years and nine weeks specified as the minimum term. The judgment was delivered by Mantell LJ ([2003] EWCA Crim 683).
3. No question arose, either in the Crown Court or in this court on that occasion, of a hospital order under the Mental Health Act 1983 being an available or an appropriate sentence in this case. The psychiatric evidence at that time was to the contrary effect.
4. However, in August 2005, two and a half years after being sentenced, the applicant was transferred to Ashworth Hospital by order of the Home Secretary under section 47 of the Mental Health Act 1983, and he has been there ever since. His responsible medical officer throughout most of the period since then is Dr Caroline Mulligan, though she has recently relinquished that role. She is Associate Director of Ashworth Hospital. She has made a diagnosis of paranoid schizophrenia, coupled with some personality disorder. Further, she has concluded that the applicant was suffering from paranoid schizophrenia at the time of the offences in June 2002. She set out her reasons at the end of a very long report dated 1 July 2008.
5. The issue for this court now is, had this evidence been before the Crown Court at the time of sentence, or indeed before this court in February 2003, whether a hospital order would have been the proper disposal, and a sentence of imprisonment, whether determinate or indeterminate, would have been wrong.
6. The application therefore first raised an issue of jurisdiction: whether this court now has jurisdiction to hear an appeal against sentence when the sentence imposed has already been considered by this court. At the hearing of the Attorney General's Reference this court had, at least in theory, the power not only to uphold or increase the original sentence, but also to reduce it or to impose a different form of sentence. It was determined that the question of jurisdiction should be considered as a preliminary issue. Following argument, a lengthy judgment was handed down by Hughes LJ on 14 May 2009 ([2009] EWCA Crim 841). The court concluded that there is jurisdiction. The critical factor is that the Criminal Appeal Act 1968 provides a right to appeal against sentence -- a right which the applicant never exercised until he made his present application. Hughes LJ set out the questions which this court would have to consider at the substantive hearing of the renewed application: (1) the application for an extension of time; (2) the application for leave to appeal; (3) any application to adduce fresh evidence and, if those hurdles were surmounted, (4) the appeal. We have accordingly done so.
7. The facts of the offences can be briefly summarised. On Saturday 15 June 2002 the applicant started a fire in the kitchen cupboard of his flat in Preston. The cupboard door was severely burnt on the inside, the top third of which was destroyed by fire. Paint on the outside of the cupboard had bubbled with heat. An 81 year old lady who lived above vacated her flat because of the smoke. Police and fire services were called. Fire officers had to wear breathing apparatus to enter the flat to deal with the fire.
8. On the following day another fire was reported at the same flat. Again the police and fire officers attended. Again breathing apparatus was needed. The fire had been started in the bedroom of the applicant's flat. The seat of the fire was an armchair which was severely burnt; only the timber framework remained. The fire had been fuelled by firelighters and by fire-fighters throwing bedding onto it as they searched for casualties. The occupants in the flat above suffered from smoke inhalation and were taken to hospital.
9. The applicant attended at Preston Police Station whilst the fire services were at the scene. He said that he had just set fire to his house and that he had also done so the day before. He was interviewed. He admitted both fires. He agreed that they had put lives in danger. He said that if released he would do it again; he wanted to be back in prison. He had gone to the police station after the first fire, but they had told him to go away. Whilst out of prison he would become "wound up" and start to think about lighting fires.
10. The applicant was aged 40 at the time of the offences. He has a very long history of offending, mainly for offences of dishonesty, but with some incidents of violence. Significantly, in April 1999 he received four and a half years' imprisonment for arson being reckless as to endangering life. At the time of that sentence there was a report from a consultant psychiatrist diagnosing a mental illness, namely depressive disorder, which would require psychiatric treatment in prison, but no question of a hospital order arose at that time. The position was complicated by alcohol and drug abuse, to which the applicant returned when he was released from that sentence in December 2001, six months before committing these offences. He was supported within the community after his release by the Primary Care Mental Health Team.
11. On 30 April 2002 he was admitted to hospital with grandiose ideas of reaching for distant galaxies, noises in his head and the like. There were concerns about the risk of a further offence of arson, but in May 2002 the psychiatrist did not feel that there was evidence of depression or psychosis, or that further input was required from the mental health team. However, the applicant committed these offences in June.
12. The psychiatric evidence before the court at the date of sentence for these offences was in the form of a report from Dr Prince Ikwuagwu, the Consultant Psychiatrist at Blackpool (who practises in the name of Dr Prince). He did not consider that there was mental illness, except in the form of alcohol dependency syndrome. He described different contradictory accounts which the appellant had given about his state of mind and motivation. He considered the appellant had been deliberately misleading. He was fully aware of his actions and that they could endanger others. He showed no remorse. He committed the offences to achieve his aim of returning to his familiar prison environment.
13. In the light of this evidence it is no surprise that this court, on the Attorney General's Reference, was satisfied that a discretionary life sentence was called for. This was, of course, before the regime of indeterminate sentences for public protection were introduced by the Criminal Justice Act 2003.
14. It follows that this appeal can only proceed on the basis of fresh evidence. The court now has a full report from Dr Mulligan, dated 1 July 2008. It describes in detail the evidence of mental illness which preceded and followed the commission of these offences and which led to the transfer to Ashworth in 2005 and the applicant's progress over the years since then. Dr Mulligan concludes, on strong grounds, that the applicant suffers from paranoid schizophrenia and needs continuing hospital treatment to keep his condition under control. The condition has been resistant to treatment, and the doctor talks in terms of years.
15. The applicant's core delusional belief concerns his fear of torture and death at the hands of Muslims in retaliation for the plan that he has to create anarchy by burning mosques. The core delusional belief has shifted somewhat. It has now principally become the role of the Attorney General in that the Attorney General, knowing of his plot, personally and maliciously intervened to ensure the increase of the applicant's sentence to a life sentence. That belief has persisted, notwithstanding changes in the holders of the office of Attorney General. Although that by definition postdates the commission of these offences, Dr Mulligan has explained to us the variety of paranoid beliefs which there is clear evidence that the applicant had before the commission of these offences, concerning the role of the local populace and drug dealers. There clearly were symptoms of a paranoid illness. The theme of them has developed and changed with the passage of time.
16. In her report, Dr Mulligan dealt with the opinions which Dr Prince had expressed in his earlier reports. At paragraph 3 of her opinion she said:

"Whilst James Hughes described to the arresting police and to the examining psychiatrist, Dr Ikwuagwu, that it was his intention to set the fires in order to be returned to prison, further investigation by way of review of previous psychiatric records, GP records and interview with family and certainly evidence since his incarceration, demonstrate unequivocally that he was suffering with a mental illness and a personality disorder at the time of the index offence."

We have today heard oral evidence from Dr Mulligan. Her opinion is shared by Dr Nathan, the Lead Consultant Psychiatrist at the Mersey Forensic Psychiatry Service based at the Scott Clinic.

17. Considering all this material, the Crown have taken the stance that they do not seek to challenge these conclusions or to call Dr Prince to give oral evidence. The Crown accept the diagnosis of the treating doctors. Whilst Dr Prince says that he remains unconvinced that the applicant was suffering from paranoid schizophrenia at the time, he accepts that it is possible. The Crown say that they would have no basis for inviting this court to accept his evidence in preference to that of Dr Mulligan and Dr Nathan.
18. In those circumstances the requirements of section 23 of the Criminal Appeal Act are met. The evidence is capable of belief. It was not available at the time when the applicant was sentenced, nor at the time of the Attorney General's Reference. Accordingly, we extend time for applying for leave, we grant leave to appeal, and we admit the evidence of Dr Mulligan and Dr Nathan.
19. It does not follow, however, from admitting the evidence that the court must intervene to quash the sentence of life imprisonment, even if, as is clearly the case, the appellant will in any event remain for the time being in hospital under the transfer order. However, Dr Mulligan gives strong reasons, and has explained them further to us this morning, why a hospital order under section 37 of the Mental Health Act, coupled with the restriction order under section 41, is a more suitable disposal than a life sentence in this case. It will provide continuity of care by forensic psychiatrists in a secure hospital for as long as is necessary, until his discharge becomes possible through decreasing levels of security, or by satisfying the First Tier Tribunal (as it now is), which applies rigorous standards to the assessment of future risk.
20. In R v Beatty [2006] EWCA Crim 2359 this court heard a somewhat similar appeal out of time and replaced an indeterminate sentence with a hospital order with a restriction order under section 41. In that case the psychiatrists were not in agreement, but the court found that the conditions for a hospital order were met. The case for such an order was perhaps clearer than in the present case because that appellant had been granted technical lifer status which meant that in practice he would be treated as subject to a hospital order, not at risk of being returned to prison. That status has now been abolished. Irrespective of this, the principle set out in paragraph 47 of the judgment of the court remains a powerful one. At paragraph 47 Scott Baker LJ said this:

"There is clear authority that where the conditions for a hospital order are met at the time of sentence a hospital order rather than a discretionary life sentence should be imposed, see Mitchell [1997] 1 Cr App R(S) 90 and Hutchinson [1997] 2 Cr App R(S) 60. This is so even where the information establishing that the conditions for making a hospital order comes to light after the imposition of the life sentence, see De Silva (1994) 15 Cr App R(S) 296. This situation is to be distinguished from that in which mental illness supervenes after the sentence has been imposed. In such a case administrative transfer by the Secretary of State under section 47 is the correct course, see Castro (1985) 7 Cr App R(S) 68."

21. We take the view that this is a clear case, albeit a rare one, in which it has been found that the mental illness present now must have been present then. In those circumstances we allow this appeal, quash the life sentence and substitute for it a hospital order under section 37, namely Ashworth Hospital, with a restriction order under section 41, unlimited in time. The appeal is allowed accordingly.