England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Luton Crown Court - His Honour Judge Farnworth

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2013

Lord Justice Pitchford :

1. This is an appeal against sentence with the leave of the single judge who also granted the appellant an extension of time of some 1,600 days within which to seek leave to appeal. The issue raised by this appeal is whether the sentencing judge's order for the detention of the appellant in a young offender institution for public protection was wrong in principle. The single judge granted leave on the ground that it was properly arguable that the appellant was, at the time of sentence, suffering from a mental illness which should have attracted an order that the appellant be detained in a mental hospital under the provisions of section 37 Mental Health Act 1983, as amended, together with an order for restriction under section 41. The appellant has leave to adduce the evidence of two consultant psychiatrists, Dr Jason Taylor and Dr Elizabeth Barron; the court gave leave to the respondent to adduce the evidence of a further consultant forensic psychiatrist, Dr Philip Joseph. Before considering the disputed expert evidence it is necessary to describe the background to the appeal in some detail. We have been assisted by the production of several written reports and letters from consultant psychiatrists, psychiatrists, psychologists and others who have had the appellant's care before and after sentence was imposed.

Family background

2. Mohammed Mokshud Ahmed was born on 23 February 1988. He is now aged 25 years. He lived with his parents, who are natives of Bangladesh, two of his brothers, his sister-in-law and his niece at the family home in Luton. Two further brothers were intermittent residents at the family home. The appellant is an intelligent young man. He successfully completed several GCSE examinations and went to a Sixth Form college to study A levels. The information given to Kyela Puech, the author of the pre-sentence report, by members of the family is that at college the appellant became a heavy user of illicit drugs including cannabis, ecstasy and cocaine. Two of his brothers were heroin users. The appellant would consume their methadone prescriptions when he could get access to them. Later, the appellant was to say that he had been consuming cannabis since the age of 13 years. In addition the appellant was drinking heavily. His favoured drink was vodka. The consequence of this deteriorating behaviour was conflict within the family, aggression and sexual disinhibition. The appellant dropped out of college.

Psychiatric intervention 2005

3. The appellant was seen by the Luton and Dunstable Crisis Intervention Team at the request of his family in April 2005 when he was aged 17 years. He had been taken to the Accident & Emergency Unit at his local hospital following an incident of self-harm. He complained that he felt depressed and paranoid. He admitted his drug consumption, including his brothers' methadone. Records indicate that the crisis team thought the appellant had been suffering from untreated psychosis for a period of two years. He was prescribed the anti-psychotic drug Olanzapine and arrangements were made for follow-up. On 13 May 2005 the clinical picture had not materially changed. The appellant's family were concerned that he was not keeping to his prescription advice and was continuing to abuse drugs. On that day the appellant was admitted to Oakley Court Psychiatric Unit, later re-named the Robin Pinto Unit in honour of its former clinical director Dr Robin Pinto. The appellant remained at Oakley Court until 6 June 2005. On discharge he failed to keep outpatient appointments. He was re-admitted on 3 December 2005 and discharged on 19 December 2005.
4. On 28 September 2005 the appellant was charged was assault upon four police officers. In preparation for his forthcoming appearance in the Magistrates Court, the appellant's solicitors obtained a report from Dr Jitendra Kumar Nayar, the appellant's treating psychiatrist at Oakley Court. In his report, Dr Nayar wrote that during his first admission a diagnosis of mental and behavioural disorder due to alcohol and cannabis misuse was made. He had suffered an acute transient psychotic episode. During his second admission the appellant came under Dr Nayar's direct care. He found no evidence of psychotic symptoms. The appellant was still using cannabis to excess. He was again discharged with a diagnosis of mental and behavioural disorder due to substance misuse. Dr Nayar reported that there appeared to be continuous conflicts within the family about the appellant's behaviour and his refusal to conform to his parents' standards. Dr Nayar found no evidence of depression, obsessive behaviour, phobia or anxiety. He found no evidence of hallucinations or delusions and his cognition was intact. Dr Nayar had no proposal to make to the court for psychiatric treatment but was prepared to continue with follow-up observation by the community mental health team. For a reason which is unclear the proceedings in the Magistrates Court seem to have come to nothing.

The offence and sentence

5. On 22 June 2006 the appellant was living at home with his parents. At about 6.30 pm he was carrying a knife in the street when he approached a 63 year old stranger, Mohammed Iqbal and, without an apparent cause, stabbed him in the abdomen. He attempted to follow up the attack but the complainant managed to stumble across the road. The appellant followed him and stabbed him twice to the arm before running away. Mr Iqbal was treated in hospital for his stab wounds. He made a satisfactory recovery. When arrested the appellant was placed upon an identification procedure and was identified by witnesses. Having first denied the offence the appellant said when re-interviewed, "I must have forgotten that". He was remanded in custody to HMP Woodhill but between 6 July and 1 August 2006 he was transferred to the Orchard Unit for further psychiatric assessment.
6. On 15 January 2007 the appellant pleaded guilty to an offence of wounding with intent to do grievous bodily harm contrary to section 18 Offences against the Person Act 1861. He appeared for sentence at Luton Crown Court on 9 February 2007 and was sentenced to detention for public protection. The minimum term was set at 5 years. Mr Long makes no complaint about the length of the minimum term of sentence for the pragmatic reason that the appellant has been in custody serving his sentence for a period significantly in excess of that term.
7. The sentencing judge was provided with psychiatric reports from Dr Robin Pinto and Dr William Canning, both of whom were instructed by the appellant's solicitors, Messrs Williams & Co. On Friday, 1 December 2006 Dr Pinto visited the appellant at HMP Woodhill. The appellant refused to see him. Subsequently, Dr Pinto was able to interview the appellant. Dr Pinto adopted the opinion of Dr Canning given in his report of 30 October 2006. Dr Soni, an associate specialist at the Orchard Unit had reported to the magistrates that the appellant was not suffering from a mental illness and he would not be further detained at the Orchard Unit once his current detention expired on 1 August. Dr Rajamani said in his transfer report that the appellant appeared "to make a calculated display of confusion" when he thought he was being noticed. Dr Canning interviewed the appellant on 23 August and 24 October 2006. Dr Canning was aware of records at HMP Woodhill which indicated that the appellant was threatening suicide, claimed to be experiencing auditory hallucinations, complained that he was vomiting blood, and had threatened to jump from a prison balcony. Dr Shapero of the Mental Health In Reach Team at HMP Woodhill intended to increase the appellant's prescription for Olanzapine from 10 to 20 mgs daily but did not expect any change in the clinical picture. The appellant told Dr Canning that voices were taking control of him. He was being told that he would be better off in a grave. Once in a grave the voices would stop. During his second interview the appellant was demanding to know whether Dr Canning was "going to section him". He was being told by a man's voice to urinate and defecate into his hands and to smear his face. The voice was threatening torture. The "man" was banging the appellant's head against his cell door. On a number of occasions the appellant placed his hand on his chest and grimaced as though in pain. He told Dr Canning that the voice threatened to insert a snooker cue through his anus until it emerged from his mouth. At the conclusion of the interview the appellant claimed then and there to be hearing a voice. In Dr Canning's view the appellant's behaviour during his interview was "histrionic". He concluded at paragraphs 1-3 of his Opinion as follows:

"1. I have been unable to arrive at a diagnostic formulation. I do not consider that Mr Ahmed is suffering from true auditory hallucination as part of a psychotic disorder. It is possible that the voice he claims to hear is a pseudo-hallucination, sometimes defined as a hallucination which the patient knows to be such; the patient has the vivid sensory experience, but realises that it has no external foundation. It is however possible that Mr Ahmed has at some stage suffered from a transient drug induced psychosis.

2. The attack on Mr Iqbal was unprovoked without reason. What is so worrying is that Mr Ahmed was carrying a knife at the material time.

3. I consider the likely diagnosis to be an Emotionally Unstable Personality Disorder. This order is defined in ICD-10 (Classification of Mental and Behaviour Disorders) as a "personality disorder in which there is a marked tendency to act impulsively without consideration of the consequences, together with affective instability. The ability to plan ahead may be minimal, and outbursts of intense anger may often lead to violence or behavioural explosions; these are easily precipitated when compulsive acts are criticised or thwarted by others". There are two variants of this disorder and both share the general theme of impulsiveness and lack of self-control. Mr Ahmed's behaviour more easily fits the impulsive type i.e. "the predominate characteristics are emotional instability and lack of impulse control. Outbursts of violence or threatening behaviour are common, particularly in response to criticism from others. …"

8. Dr Pinto said at paragraph 22 of his report to the sentencing court of 27 December 2006:

"22. Dr Canning describes components of Mr Ahmed's behaviour at Woodhill Prison. This was very similar to the syndrome he manifested during the first few days of his stay at the Orchard Unit. He complained of "voices" that he said were instructing him to kill himself, and repeatedly maintained that he had absolutely no recollection of the events that had led to his arrest. The nursing observations in our unit did not provide any supporting evidence to confirm that he might have been genuinely hallucinating as he was never noticed to have been responding to any outside experiences. He kept maintaining that he was unfit to plead because he felt suicidal, though our repeated assessments of his mental state did not conclude that he was clinically depressed. On 31 July 2006 he appeared to make a show of using a cutlery knife, which had to be retrieved, but the nurses who dealt with the matter did not feel that Mr Ahmed was actually intending to carry out an attack."

9. In his Opinion at paragraph 24 Dr Pinto continued:

"24. In my view, Mr Ahmed does not suffer from a treatable mental illness at the present time. His description of the "voices" is most unlikely to represent true hallucinatory experiences. His form of speech does not reveal any evidence of thought disorder, and his repeated assertions that he is compelled to carry out actions such as bathing in urine or covering his face in faeces are most unlikely to be true."

At paragraph 26 Dr Pinto continued:

"26. On the other hand, the information that is available in his records does indicate that Mr Ahmed has behaved in an abnormal and disturbed fashion on many occasions before the event. His parents would appear to have been extremely concerned about his behaviour to the extent of seeking help for him on repeated occasions. The description they provided of his behaviour, including his spontaneous aggression, his sexual disinhibition, and his assault on other members of the family, are suggestive of confused and possibly transient psychotic states."

Dr Pinto expressed the view that the appellant's statements to psychiatric consultants were primarily driven by his desire to escape a custodial sentence. There was little convincing evidence to support Mr Ahmed's declaration that he would never take drugs again. He had been a heavy consumer of most forms of illicit drugs and alcohol since his early teens. At paragraph 31 Dr Pinto reported that there was clear evidence of dissembling by the appellant. His claim to have been constantly affected by auditory hallucinations was not borne out by independent observation. The instant offence was likely to have been the consequence of a transient psychosis, probably brought about by extensive drug misuse. Dr Pinto did not disagree with Dr Canning's tentative view that the appellant suffered from an emotionally unstable personality disorder which Dr Pinto did not regard as a treatable mental illness.

10. It is common ground between Ms Syed, on behalf of the respondent, and Mr Long, on behalf of the appellant, that there was no evidence before the sentencing judge that would have entitled him to order the appellant's detention in hospital. The judge concluded that the appellant presented a significant risk to the public. For that reason an indeterminate sentence was required. It is now necessary to trace the history of transfers between prison and hospital.

HM Aylesbury YOI 9 February 2007-19 December 2008

11. Once in custody the appellant did not have access to the cocktail of drugs and alcohol which he had consumed before his remand. Dr John Baruch was consultant psychiatrist at HM Aylesbury Young Offenders Institute. On 29 April 2008, Dr Baruch wrote to the appellant's then solicitors, Solomon Levy & Co, that in January 2007 the appellant began to complain of hearing voices. It was noted that the appellant had, at the time of committing the offence, been under the influence of a psychotic episode brought about by misuse of drugs. At Aylesbury the appellant was prescribed anti-depressant and anti-psychotic medicine. He withdrew from medication in October 2007 and appeared to become unwell with hypo-manic symptoms and, possibly, paranoid delusions. He was therefore re-started on Olanzapine. Dr Baruch expressed the view that a number of diagnoses were possible including, drug induced psychosis, manic depression, schizophrenia and emotionally unstable personality disorder. He did not rule out the possibility "that Mr Ahmed had simulated his psychotic symptoms".

Suttons Manor Hospital 19 December 2008-20 October 2009

12. On 19 December 2008 the appellant was transferred to Suttons Manor Hospital under section 47 Mental Health Act 1983. He remained until 20 October 2009 when he was transferred to the Robin Pinto Unit. Dr Owen Samuels was Consultant Psychiatrist at the Robin Pinto Unit. On 6 August 2009 Dr Samuels wrote to Dr Jason Taylor at Suttons Manor Hospital. Dr Samuels said that the appellant's mental state had started to deteriorate in June 2008. In October 2008 he was involved in a fight in detention for which there had been no provocation. In November he claimed to have heard a woman being tortured in the YOI. He was now complaining that at the time he committed the section 18 offence voices had told him that unless he went out to stab someone he would himself be tortured. He was expressing persecutory beliefs. He thought his family was being tortured. His own thoughts were, he said, being broadcast on the television. Similar accounts were given by the appellant on his admission to Sutton Manor. On 4 April 2009 the appellant attacked a fellow patient. He claimed the voices had told him to punch another person or a member of his family would be run over by a car. He said he had punched his fellow patient as gently as he could. He was reported to be making telephone calls to his family between three and five times a day. He told Dr Samuels that whenever he saw the colour purple on the television he believed the content of the programme related to him. He repeated his previous claims to be suffering olfactory delusions. He thought the Imam was talking about him. The language he used caused the appellant to believe that the female members of his family were being raped. The appellant revealed that his symptoms had improved since being transferred to hospital. That was because, he said, he was able to telephone his family more frequently. Dr Samuels interviewed the appellant on 4 August 2009. He described the appellant as follows:

"Mr Ahmed was dressed in a traditional tunic. He was friendly and engaging during the assessment and appeared generally eager to assist with the process. He was reasonably well groomed and maintained good eye contact throughout the assessment. He exhibited some restlessness and at times appeared stiffened but denied any specific complaints about his current medication. His speech was spontaneous and he spoke with normal volume and rate albeit somewhat monotonous. He described his mood as being "fine" and denied any significant mood symptoms. He denied any hopelessness or despair and said that although he experienced auditory hallucinations telling him to harm himself, he denied suicidal intent. There was no evidence of formal thought disorder. He described numerous ongoing psychotic symptoms including auditory hallucinations, ideas of reference, passivity phenomena and paranoid beliefs that his family and he will come to harm. Although he admitted that although he believed these symptoms were due to his mental illness, he is unable to dismiss these symptoms, particularly when the voices are most distressing. He said he experienced difficulties managing this distress."

Robin Pinto Unit 20 October 2009-22 July 2010

13. Dr Samuels expressed the opinion that the appellant was suffering symptoms of paranoid schizophrenia. In other words, he accepted the truth of the appellant's own account of those symptoms. However, following his transfer to the Robin Pinto Unit on 20 October 2009 the appellant was assessed using the Miller Forensic Assessment of Symptoms. Dr Raman Deo, Clinical Director at Brockfield House Medium Secure Unit, the appellant's current treating psychiatrist, describes the assessment in his report of 25 January 2013 as a reliable and valid screen for Malingered Mental Illness. Dr Deo said at paragraph 40 of his report:

"Mr Ahmed's scores met the cut-off criteria for malingered symptoms across several scales. These include RC (rare combinations), which indicates the endorsement of unlikely combinations of symptoms associated with mood and psychotic disorders. Mr Ahmed also reached the cut-off points for RO (reported versus observed behaviour) and USC (unusual symptom course). The author also stated that these findings were consistent with his presentation on the ward, whereby he often states anxiety symptoms that are not observed by others. It is felt by the team that Mr Ahmed's presentation is not consistent with that of a person [suffering from] psychoses at present."

14. In his transfer/discharge form prepared upon his transfer to HMP Woodhill on 22 July 2010 the following entry appears:

"...in the week prior to transfer, Mr Ahmed expressed concerns about being isolated in prison and not being able to contact his family. He believed that this would result in an increase in his auditory hallucinations and he requested Lorazepam to manage this anxiety. When this was declined, he made veiled threats to cut his wrists and said that this was the only way people accede to his requests. He was therefore placed on enhanced observations but these were rescinded on 21 July when Mr Ahmed reported stable mood and denied any thoughts of self-harm. He spoke positively of completing his required programmes in prison and returning to live with his family when the loft is converted. He spoke of realistic plans to attend college and secure paid employment upon release."

15. In a further report from Dr Samuels dated 25 October 2010 he acknowledged what he described as a tendency in Mr Ahmed to exaggerate his symptoms. Speaking of the appellant's time at the Robin Pinto Unit Dr Samuel's said:

"Over time, we also noted a tendency by Mr Ahmed to fluctuate in mood and he exhibited a very polarised way of thinking. It was felt that Mr Ahmed preferred being on the Robin Pinto Unit, which was in close proximity to his family's home, and his family would visit most days bringing him meals. Mr Ahmed began asking for escorted leave and it was felt that although he continued to report delusional beliefs, he had made significant progress and it was appropriate to transfer him back to prison. Around this time, Mr Ahmed began engaging in self-harming behaviour, superficially cutting his wrists and threatening to kill himself if he was transferred back to prison. Over time, however, I was able to convince him that as he was on an indefinite sentence for public protection, the only way that he would eventually secure his release was through doing the necessary rehabilitative programme in the prison and we were able to, with the support of the prison In Reach Team at Woodhill, negotiate a safe transfer back to HMP Woodhill."

HMP Woodhill 22 July 2010-11 March 2011

16. Dr Samuels followed up Mr Ahmed after his transfer to HMP Woodhill. He assessed Mr Ahmed in the presence of Dr Shapero. In his report of 25 October 2010 Dr Samuels' said:

"It is clear that despite all the efforts from the In Reach Team, Mr Akmed has deteriorated in his mental state, reporting very vivid auditory hallucinations. He began suffering with intense anxiety and would isolate himself in his room refusing to engage in any programmes. In addition, Mr Ahmed described believing that his family were being assaulted and I understand on one occasion he actually asked his mother to uncover her veil because he believed that she would have marks from being assaulted. The prison In Reach Team had made numerous efforts to manage him in the prison setting but feel that they are no longer able to do this. He has seemingly remained compliant on his medication and it may be that he would benefit from an increase in Clozapine but Dr Shapero feels that he is unable to do this in prison because he feels he is unable to monitor the prescribing of Clozapine in this setting. Although I do not entirely agree with this opinion it was on this basis that he was re-referred to me".

Speaking of his interview with the appellant on Thursday 21 October 2010 Dr Samuels wrote:

"… Mr Ahmed was casually dressed in prison-issued clothing. He was animated and aroused throughout the assessment and presently objectively anxious. His speech was lucid and coherent but he spoke with a degree of desperation, seemingly eager to impress upon me the level of his stress and the need for transfer to hospital. He described his mood as being very depressed with ongoing suicidal ideation. He has self-harmed on several occasions recently. Mr Ahmed described poor sleep and poor appetite. He described low energy levels and said that he is unable to concentrate. He described complex persecutory delusional belief that his mother and sister are repeatedly being raped. He described how he had come to this knowledge by hearing the ongoing screaming of women and also how he has recently heard a single entitled "I like that" which he described in a circuitous way that it referred to his sister being raped. He also described himself as having been classified as "a rape class citizen" which he said meant that his family would be assaulted and raped by people that form an "organisation of the public bodies"."

17. Dr Samuels concluded that he was uncertain whether the appellant was exaggerating his symptoms but he believed that the appellant was suffering from paranoid schizophrenia. It was for this reason that he supported the appellant's return to hospital.

Dune Ward, Brockfield House 11 March 2011-February 2012

18. On 11 March 2011 the appellant was admitted to Dune Ward, Brockfield House, a medium secure unit in Runwell, Essex for further assessment. Between 21 July and 4 August he completed a range of tests including the HCR-20 violent risk assessment, the Minnesota Multiphasic Personality Inventory (MMPI-2), the Millon Clinical Multiaxial Inventory – III (MCMI-III), the Structured Interview of Reports Symptoms (SIRS) and the Test of Memory and Malingering (TOMM). Ms Hanaan Haddad, the locum forensic psychologist, who conducted the series of tests with Mr Stockton, prepared a report dated 18 January 2012. In it she wrote a summary of assessment findings in which she said:

"1. Mr Ahmed has not been sincere in his responding on all psychometric tests administered. This brings into question the sincerity and genuine experience of both psychotic symptoms and complaints of low mood and severe anxiety. Findings on the above psychometric tests are consistent with previous opinions held by Dr R Pinto, Dr Ragamarni, Nikala Kumari and nurses at HMP Woodhill who have described a calculated attempt by Mr Ahmed to uphold a mentally ill and disturbed picture of his current mental state.

2. Further, in a specific test designed to assess malingered memory difficulties, Mr Ahmed's performance is so poor that we would expect neglect in his self care and hygiene, that he would be unable to maintain conversation with staff, recall staff members' names, the medication he requires and even the telephone numbers of his family, yet he has been able to recall these freely from memory. This test adds to the concerns of feigning memory difficulties and concentration difficulties and the lack of observed difficulties he has presented while being at Brockfield House. In 2007, Mr Ahmed completely courses targeting critical thinking skills, problem solving skills and reflective thinking skills. He completed these courses with positive feed-back and even demonstrated the ability to link material and apply his learnt skills.

3. Therefore, based on the evidence detailed in his comprehensive psychological report it seems reasonable to conclude that Mr Ahmed does not have a current psychiatric diagnosis and does not suffer from genuine memory or cognitive impairment. It is highly unlikely and suspicious that such a performance could have occurred either as a result of paranoid schizophrenia – spectrum illness or as a result of cognitive deterioration. The vast level of discrepancy between his reports and his observed functioning on the ward taken together with his exaggerated symptoms and malingered memory impairment adds weight to this conclusion. It appears as though Mr Ahmed presented with apparent mental health symptoms which resulted in his admission to Brockfield House, however during the more comprehensive psychological assessment, it seems reasonable to conclude that his mental health symptoms are likely malingered."

HMP Woodhill February 2012-25 July 2012

19. In about February 2012 the appellant was returned to HMP Woodhill. He was prescribed an anti-psychotic drug, Aripiprazole, and an anti-depressant, Mirtazapine. Dr Raman Deo, the clinical director of the SEPT Secure Mental Health Service at Brockfield House said in his report dated 25 January 2013 at paragraph 43 that the appellant had an inconsistent and unusual presentation. There was a working diagnosis of anxiety and probable personality disorder. At Brockfield his anti-psychotic drug Clozapine was stopped. His functioning remained at a high level and there was no objective evidence of cognitive impairment. When, however, the appellant returned to HMP Woodhill his claims to a belief that his family were being sexually abused resumed. He stopped taking his medication and carried out a planned attack on a fellow inmate. He befriended his victim and invited him to his cell for a cup of tea and then poured a kettle of boiling water in his face. He claimed that he believed his victim was one of several men who had raped his mother, sister and cousin.
20. Dr Deo was aware of conflicting opinions as to whether the appellant severed a true mental illness.
21. We interrupt the chronology of Dr Deo's report to refer to a letter typewritten by the appellant on 3 February 2012 to Dr Jason Taylor, who was a treating psychiatrist at Suttons Manor Hospital from April 2009. The letter was also sent to Dr Elizabeth Barron, a treating psychiatrist at Brockfield House. The letter was written from Dune Ward at Brockfield House by the appellant shortly before his transfer back to HMP Woodhill. In five closely typed pages of A4 the appellant seeks support for a diagnosis of paranoid schizophrenia. He seeks to explain and criticise the contrary view of other psychiatrists. His argument is closely reasoned. The effort of memory required was prodigious. Inconsistently, however, the appellant argued that his response to the memory tests conducted by Ms Haddad was genuine. The appellant purported to give other examples of poor memory, completely inconsistent with the effort of memory required to write the letter. In his concluding paragraph the appellant wrote:

"So Dr Taylor my analysis for Dr Phinn's [a reference to a Dr Thinn whose report we have not seen] opinion and the psychological aseessment can challenge them. Also it should be brought to light the truth which is I am a sick man with real problems and if these problems are in fact not real then I must admit I am a very sick man. The index offence I committed was due to my illness and I speak the truth, nothing but the truth, the whole truth and only the truth. So please Dr Taylor I beg, please do not withdraw your support or commitment to the Court of Appeal. Just because how you are going to look I say this because I know you believe I am ill but just now going to find it hard to prove. So I guess I will leave it at this, goodbye and I wish upon you a good life from God …"

Lagoon Ward, Brockfield House 23 July 2012 to date

22. Returning to Dr Deo's report of 25 January 2013, he recorded that the appellant was returned to Lagoon Ward at Brockfield House under section 47 Mental Health Act 2007 on 23 July 2012. The appellant again presented in an inconsistent manner. He appeared to be delusional, he was observed pacing the ward, talking to himself, praying and laughing inappropriately. At times he would not maintain eye contact with female members of staff. At others he did maintain eye contact and spoke in a relaxed manner. On 25 August 2012 he attacked a member of staff. In consequence his medication was recommenced. The appellant himself described periods of calm when he no longer entertained his bizarre delusional beliefs that his family were in danger of rape by Pakistani men. The appellant had become pre-occupied with his original conviction for wounding. He was constantly asking staff to provide a report in support of an appeal against conviction. Dr Deo's opinion was that the appellant suffered paranoid schizophrenia but the picture was complicated because it might be that he was exaggerating his various symptoms.

Evidence in the Appeal

23. The diagnosis of paranoid schizophrenia is supported by Dr Jason Taylor and Dr Elizabeth Barron. Dr Taylor is a consultant psychiatrist who first encountered the appellant at Suttons Manor Hospital in April 2009. The appellant had been on the ward since 19 December 2008. He remained in Dr Taylor's care until he was transferred to the Robin Pinto Unit on 20 October 2009. On 9 December 2010, Dr Taylor wrote to the appellant's solicitors, Noble & Co., expressing the firm opinion that the appellant had suffered a "serious, discrete mental disorder at the time of the index offence". When deprived of drugs and alcohol he continued to display classical symptoms which very strongly supported a diagnosis of treatment resistant schizophrenia. Dr Taylor described in evidence "classical" and "first rank" symptoms of schizophrenia. They were resistant to treatment. This was the reason why Clozapine had been prescribed; it is a last resort medication. Dr Taylor said that the appellant suffered command hallucinations "almost identical to those he experienced when he committed the offence". The appellant had made, in Dr Taylor's opinion, a partial response to medication, in particular Clozapine. His view was that the opinion of the psychiatric experts who advised the sentencing court had subsequently been demonstrated to have been wrong. The consumption of drugs and alcohol may have been the trigger for the development of an enduring psychosis. Dr Taylor had not observed any signs of a personality disorder: "He was anxious but adhered to the rules and conditions. He was compliant with treatment".
24. Dr Taylor agreed in cross examination that his diagnosis depended in substantial measure upon the appellant's own reports of his symptoms. He had also relied upon the family history and the appellant's observed behaviour. When asked to explain the results of psychological testing on two occasions Dr Taylor expressed the view that the testing methods were unreliable in schizophrenic patients and cast doubt upon the experience and, therefore, the competence of the psychologists who performed them. Asked to reconcile the appellant's severe condition with the letter written to him on 3 February 2012 Dr Taylor said only that he found its contents "bizarre" and "contradictory" It was not inconsistent, he thought, that a man who was severely mentally ill would try to persuade others of that fact. In re-examination Dr Taylor conceded that there may be an element of exaggeration in the appellant's self-report of symptoms. Exaggeration, he said, could be the result of anxiety caused by genuine symptoms.
25. Dr Elizabeth Barron was the appellant's treating psychiatrist at Dune Ward, Brockfield House between 11 March 2011 and the end of the year. In a letter of 25 May 2011 to Noble & Co. Dr Barron supported the diagnosis of paranoid schizophrenia. She also considered that the appellant was mentally unwell at the time of the offence. She did not agree with Dr Pinto's diagnosis of emotionally unstable personality disorder. During his stay at Dune Ward the appellant showed no evidence of such a disorder. She said in a letter dated 25 January 2012 to Noble & Co. that "he has never demonstrated impulsive behaviour, mood swings or outbursts of anger. On the contrary he has tried to comply with rules and regulations and has been able to get along with staff and patients alike. He has, however, continued to be distressed by his symptoms at times and to require constant reassurance around his delusional beliefs". Dr Barron concluded that the appellant did not have a personality disorder but suffered a persistent delusional disorder that required anti-psychotic medication and possibly cognitive behavioural therapy. In evidence Dr Barron conceded that it was possible that the appellant's schizophrenia developed after sentence. It was unusual to diagnose schizophrenia at such a young age.
26. Dr Barron said that she had interviewed members of the appellant's family, his parents and a brother, Hussain, with the assistance of an interpreter. In consequence she understood from Hussain that a maternal uncle had suffered symptoms not dissimilar to those of the appellant. An older brother with a history of drug taking was also paranoid and had been prescribed anti-psychotic medicine. The parents had denied that there was a history of mental illness in the family but Hussain explained that his parents may not have wished to reveal such an embarrassing fact in the presence of an influential member of their own community. Asked upon what objective evidence she had based her opinion, Dr Barron said that Hussain had told her that the appellant frequently expressed his anxiety about his family over the telephone. We have been provided with no notes of these conversations and no follow up enquiries appear to have been made. Dr Taylor relied upon Dr Barron's report to support his diagnosis of paranoid schizophrenia. He said his opinion was partly based upon the "appearance" of a family history of schizophrenia.
27. The appellant had not, in Dr Barron's experience, ever exaggerated his symptoms although she could not totally ignore the results of psychological testing. Dr Barron believed that the appellant had during his time in custody suffered a deterioration in his intellectual functioning.
28. Dr Philip Joseph is a consultant forensic psychiatrist who had recently retired from his treating practice at St Mary's and St Charles Hospital in London. He was the consultant responsible for a locked psychiatric care unit between 1996 and October 2012. He has provided reports and evidence in over 800 cases of homicide over a period of 28 years. Dr Joseph provided reports, at the request of the respondent, dated 6 December 2011 and 14 February 2012. In short, it was Dr Joseph's opinion that too little respect had been paid to the contemporaneous opinions of those who reported upon the appellant's mental health in years 2005-2007. He found upon interview and examination that he agreed with them. Contrary to the account given at the time of offence the appellant claimed that he had been hearing voices for "some months". Britney Spears had told him to be racist towards an African lady shopkeeper. He replied "No" to the voice. He repeated his previous accounts which had emerged while he was at Aylesbury YOI of being told that he would be tortured unless he attacked his victim. At first he claimed it was one voice, then he said it was a crowd of men and women speaking in English. Eventually he had given in to the voices but had chosen the smaller of two knives to minimise the damage to the victim. He claimed that he had been "stitched up" by Dr Pinto.
29. Dr Joseph found a man who was well groomed, alert, intelligent and keen to participate. He understood all Dr Joseph's questions and gave prompt and articulate answers. He observed no signs of the anxiety, depression or suicidal thoughts. He found no evidence of poverty of speech, blunted effect, lack of motivation or poor self-care, which he would have expected to be demonstrated by a man suffering from the burden of chronic schizophrenia. When Dr Joseph discussed with the appellant the first diagnosis of schizophrenia (when he was in HMP Aylesbury) the appellant told him that now five doctors agreed and "hopefully you will be the sixth". The appellant told Dr Joseph that he wanted a hospital order instead of a prison sentence because under his present sentence he could not be released without first returning to prison. In hospital he enjoyed escorted leave but in time he hoped to return to the Robin Pinto Unit so that he could be given unescorted leave in order that he could visit his family. He thought he was "a bit better in hospital".
30. Dr Joseph explained in his report that Clozapine was a powerful drug which was used in the treatment of resistant schizophrenia which had not responded to more conventional antipsychotic drugs. It has unpleasant side-effects. The appellant told him that although he had been taking Clozapine for a year it had not helped him. Yet, Aripiprazole, which he had been taking for two and a half weeks, had taken effect immediately. Dr Joseph noted the history of report writing to which we have referred earlier in this judgment.
31. Dr Joseph concluded that the appellant was not suffering from treatment-resistant paranoid schizophrenia. Dr Joseph found the appellant's presentation at interview to be entirely inconsistent with a man who was so ill that only the drug of last resort was deemed appropriate to treat his condition. Dr Joseph agreed with the tentative opinions of Dr Canning and Dr Pinto that the appellant had an emotionally unstable personality disorder which was the cause of his occasional outbursts of anger, and impulsive and violent behaviour. It was not uncommon to treat such a disorder to some effect with low doses of anti-psychotic drugs. Although Dr Joseph did not rule out the possibility that at the time of the offence the appellant was suffering from a transient psychotic episode brought about by his drug consumption, it was his view that drug consumption may equally have intensified his emotional instability with the same result.
32. In evidence Dr Joseph noted that the opinion of Ms Haddad had been unequivocal: the appellant had been malingering his symptoms. Dr Joseph explained the conclusions contained in his report. If the appellant was not malingering he was very ill. If he was very ill, Dr Joseph would expect to find enduring signs of the burden of the illness. There were none. Those with the condition this man claimed to have cannot care for themselves. Dr Joseph accepted that there was room for disagreement between experts in psychiatry. However, his concern lay in the "inconsistency" and "incongruence" between the appellant's claimed experience of schizophrenia and his demeanour and presentation in interview and to others. Dr Joseph's study of the reports had caused him to notice a curious feature of the cycle by which the appellant would be transferred from prison to hospital and back to prison. There would be an apparent improvement in hospital. When he was transferred to prison there would be a rapid deterioration and he would refuse to take his medication. That was inconsistent with a patient who was responding to a successful anti-psychotic drug regime in hospital and deemed, for that reason, to be fit to return to prison. Dr Joseph asked rhetorically: why, if the appellant's symptoms were relieved by the drugs regime did he refuse to take them when he was returned to prison? Any deterioration in the appellant's mental condition in prison Dr Joseph would expect to be gradual. Dr Joseph considered that the appellant's claims to be hearing voices were not genuine. He accepted that he could not be certain, but if he was wrong he did not consider that the later development of paranoid schizophrenia demonstrated that expert opinion at the time of sentence was misconceived. When, for example, the appellant had been admitted to the Oakley Unit in 2005 he had improved quickly and had been discharged. He failed to keep to the agreed regime and returned. The appellant's reported behaviour towards the victim of wounding was entirely consistent with drug induced and transient psychosis. As to the letter written by the appellant in February 2012, Dr Joseph expressed the view that a man who had endured treatment resistant schizophrenia since the age of 21 simply could not have composed it. Those suffering from schizophrenia do not describe the voices they experience commanding action as "delusions". Their voices are as real as any other human experience.

Discussion and conclusion

33. The burden is upon the appellant to demonstrate that at the time of sentence the appellant was suffering from a mental disorder of a nature or degree that made it appropriate for the appellant to be detained in a hospital for medical treatment (section 37(2)(a) Mental Health Act 1983). There is no issue raised by the respondent that if the appellant meets the burden upon him an order under sections 37 and 41 would have been appropriate (see section 37(2)(b) and section 41(1)). The stark issue raised by this appeal is whether the appellant has demonstrated that at the time of sentence he was suffering from paranoid schizophrenia or some other form of delusional disorder, susceptible to treatment, which should have resulted in an order for his detention in a hospital.
34. In our judgment, the appellant has manifestly failed to demonstrate that the opinions expressed in the reports of Dr Pinto and Dr Channing to the sentencing judge were flawed in any significant respect. We recognise the possibility, which we regard as unlikely, that the appellant has, since he commenced serving his sentence, developed the mental illness of paranoid schizophrenia. This Court cannot allow an appeal against sentence on the ground that it was wrong in principle or manifestly excessive merely because the offender has since developed a mental disorder or illness which, had it been present at the time of sentence, may have caused the sentencing judge to take a different view as to the appropriate sentence. Section 47 exists to enable the Secretary of State to respond to such an eventuality by directing the offender's transfer to hospital.
35. We have reached our conclusion essentially for the reasons given by Dr Joseph. We found Dr Joseph to have been both a careful witness and a careful reporter. We recognise that both Dr Taylor and Dr Barron have had the appellant in their care for significant periods while they were treating psychiatrists at institutions to which the appellant had been transferred. We do not doubt that their opinions were sincere. However, on two occasions separate teams of psychologists have tested the appellant for the purpose of ascertaining whether he has been "malingering" his symptoms. Those symptoms are in the main his description of the voices which he claimed were commanding and frightening him. We have received no satisfactory explanation from Dr Taylor and Dr Barron as to why the opinion of the psychologists is to be discounted.
36. Secondly, we see force in Dr Joseph's evidence that:

(1) if the appellant was telling the truth, he was very ill. His presentation was consistently at odds with a man who was very ill. His emotionally unstable personality was enough to account for his occasional outbursts of violence;

(2) the appellant's behaviour was manipulative. He clearly preferred the regime in hospital and his preference was the Robin Pinto Unit close to his family home. We share Dr Joseph's concern about the cycle of behaviour and symptoms claimed;

(3) the letter typed by the appellant on 3 February 2012 was an attempt by a man in full control of his faculties to rationalise the effect of the voices which he claimed to be hearing. It was clearly designed to persuade his audience to support his case. We accept Dr Joseph's opinion that there is precious little evidence of a man who was distressed by his seriously ill mental condition; there is plenty of evidence of thoughtful self-justification;

(4) the appellant was the subject of expert evaluation during three separate periods of observation in 2005/2006. None of the experts who saw the appellant accepted that the appellant was describing genuine hallucinations.

37. We are not persuaded that Dr Taylor and Dr Barron gave sufficient consideration to the need, for diagnostic purposes, to be clear about the objective evidence which might support a diagnosis of paranoid schizophrenia. While both experts relied upon conversations with the family, the evidence was imprecise and inconsistent and no attempt was made on the appellant's behalf to establish the factual assertions as to the family history on which their diagnosis was based. They have expressed their clinical impressions primarily, if not exclusively, upon their own dealings with the appellant who, we find, to have been quite capable of manipulating others to his own advantage.
38. In our judgment, the appellant has failed to establish that the expert psychiatric evidence presented to the sentencing judge was flawed or mistaken. It follows that a sentence of detention for public protection was the appropriate sentence and the appeal is dismissed.