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Cite as: [2018] 2 Cr App R (S) 17, [2018] 4 WLR 64, [2018] EWCA Crim 595, [2018] MHLR 105, [2018] WLR(D) 199

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Neutral Citation Number: [2018] EWCA Crim 595

Case No: 201603580 A3

201604495 A3

201603196 A4

201601718 A4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CENTRAL CRIMINAL COURT

HIS HONOUR JUDGE BEVAN QC

T20167084

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT STAFFORD

HIS HONOUR JUDGE CHAMBERS QC

T201607043

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT INNER LONDON

HIS HONOUR JUDGE CHAPPLE

T20157373

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT SHEFFIELD

HIS HONOUR JUDGE KEEN QC

T20070613

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27/03/2018

Before:

LADY JUSTICE HALLETT DBE

THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

LORD JUSTICE TREACY

and

SIR WYN WILLIAMS

- - - - - - - - - - - - - - - - - - - - -

Between:

Respondent

- and -

Edwards

and

Knapper

and

Payne

and

Langley

1^st Appellant

2^nd Appellant

3^rd Appellant

4^th Appellant

- - - - - - - - - - - - - - - - - - - - -

M Magarian QC (instructed by GT Stewart Solicitors & Advocates) for the 1^st Appellant

A Orchard QC (instructed by Appeals Unit, CPS) for the Respondent

A Watkins (instructed by Stevens solicitors (Stoke-on-Trent)) for the 2^nd Appellant

R Brand QC (instructed by Appeals Unit, CPS) for the Respondent

F McGrath (Appears Pro Bono) for the 3^rd Appellant

A Orchard QC (instructed by Appeals Unit, CPS) for the Respondent

M Stanbury (instructed by Howard & Byrne Solicitors) for the 4^th Appellant

B Douglas-Jones (instructed by Appeals Unit, CPS) for the Respondent

Hearing dates: Wednesday 14 & Thursday 15 February 2018.

- - - - - - - - - - - - - - - - - - - - -

Judgment Approved

The Vice President:

Introduction

1. This is a judgment to which all three members of the court have contributed.

2. These four cases are listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. In the cases of Edwards, Knapper, and Payne, terms of life imprisonment and a minimum term were imposed, as well as a Hospital and Limitation Direction Order under s.45A of the Mental Health Act 1983 (“the MHA”). In the case of Langley, a sentence of Imprisonment for Public Protection (IPP) was passed but no order under s.45A was imposed, no doubt in part because the amendments to that section, which came into effect in November 2008, were not in force at the time of sentence. In each case the offenders are said to have been mentally ill at the time of the offences and it is argued that orders should have been made pursuant to ss.37 and 41 of the MHA. Leave to appeal has been granted in the cases of Edwards, Knapper and Langley but refused in the case of Payne.

Statutory framework

3. Section 37 provides:-

“Powers of courts to order hospital admission or guardianship

(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law…and the conditions mentioned in sub-section (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order…

…

(2) The conditions referred to in sub-section (1) above are that –

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either –

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or

(ii) …

and

(b) the court is of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”

4. Section 41 provides:-

“Power of higher courts to restrict discharge from hospital

(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, […] and an order under this section shall be known as a ‘restriction order’.

(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.

(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows-

(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below

…

(i) power to grant leave of absence to the patient under section 17 above;

(ii) power to transfer the patient in pursuance of regulations under section 19 above…;

and

(iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and

(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.

…”

5. Section 45A provides:-

“Powers of higher courts to direct hospital admission

(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 sub-section (2) below are fulfilled; and

(b) […], the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence.

(2) The conditions referred to in sub-section (1) above are that the court is satisfied, on the written and oral evidence of two registered medical practitioners –

(a) that the offender is suffering from mental disorder;

(b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment;

and

(3) The court may give both of the following directions, namely –

(a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a “hospital direction”); and

(b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a “limitation direction”).

(4) a hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court.

(5) A hospital direction and a limitation directions shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for his case, or of some other person representing the managers of the hospital that arrangements have been made –

(a) for his admission to that hospital; and

(b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions;

and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety

…

(8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction.

(9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion.”

6. The First Tier Tribunal (Mental Health) decides when the offender should be released when an order is made under ss.37/41. However, for section 45A orders the release regime differs depending on whether an offender is serving a determinate or indeterminate sentence of imprisonment.

Determinate sentences

7. If a s.45A patient’s health improves so that his responsible clinician or the Tribunal notifies the Secretary of State (“SoS”) that he no longer requires treatment in hospital under the MHA, the SoS will generally remit the patient to prison under section 50(1) of the MHA to serve the rest of his sentence. On arrival in prison, the s.45A order would cease to have effect and the offender would be released from prison in the usual way.

8. If there has been no improvement at the automatic release date, the limitation direction aspect of s.45A falls away. At that point, the patient remains in hospital but is treated as though they are subject to an unrestricted hospital order so that the point at which he is discharged from hospital is a matter for the clinicians, with no input from the SoS.

Indeterminate sentences

9. If a s.45A patient’s health improves such that his responsible clinician or the Tribunal notifies the SoS that he no longer requires treatment in hospital under the MHA, the SoS will generally remit the patient to prison under section 50(1) MHA. On arrival in prison, the s.45A order would cease to have any effect whatsoever. Release would be considered by the Parole Board in the usual way.

10. If a s.45A patient has passed their tariff date and the Tribunal then notified the SoS that he is ready for conditional discharge, the SoS could notify the Tribunal that he should be so discharged (section 74(2)). In that case, the offender would be subject to mental health supervision and recall in the usual way. However, the SoS would, in practice, refer the offender to the Parole Board.

R v Vowles and Others [2015] 2 Cr App Rep (S) 6

11. In R v Vowles and Others [2015] 2 Cr App Rep (S) 6 this court gave guidance on the approach to be adopted when psychiatric evidence had been put before a sentencing court with a view to the judge making a hospital order with restrictions pursuant to ss.37 and 41. The guidance is set out at paragraphs 51-55:

“51. It is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions. A judge must therefore consider, where the conditions in s.37 (2) (a) are met, what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard to include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release. There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out.

52. As to the fourth of the considerations to which we have referred, Lord Bingham at paragraph 23 of his judgment in Drew, which was decided prior to the amendment of s.45A, accepted that there was force in the submission of the Secretary of State that where the medical criteria were met, judges had given less than adequate weight to the conditions governing release. He was, at that time, unpersuaded that a change in practice was desirable. In the light of the amendments to s.45A, the observations of Hughes LJ which we have referred at paragraph 48.ii) and the general evidence before us, we consider that a judge when sentencing must now pay very careful attention to the different effect in each case of the conditions applicable to and after release. As is shown by the case of Teasdale to which we have referred at paragraph 48.iv), this consideration may be one matter leading to the imposition of a hospital order under s.37/41.

53. The fact that two psychiatrists are of the opinion that a hospital order with restrictions under s.37/41 is the right disposal is therefore never a reason on its own to make such an order. The judge must first consider all the relevant circumstances, including the four issues we have set out in the preceding paragraphs and then consider the alternatives in the order in which we set them out in the next paragraph.

54. Therefore, in the light of the arguments addressed to us and the matters to which we have referred, a court should, in a case where (1) the evidence of medical practitioners suggests that the offender is suffering from a mental disorder, (2) that the offending is wholly or in significant part attributable to that disorder, (3) treatment is available, and it considers in the light of all the circumstances to which we have referred, that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, consider the matters in the following order:

i) As the terms of s.45A (1) of the MHA require, before a hospital order is made under s.37/41, whether or not with a restriction order, a judge should consider whether the mental disorder can appropriately be dealt with by a hospital and limitation direction under s.45A.

ii) If it can, then the judge should make such a direction under s.45A(1). This consideration will not apply to a person under the age of 21 at the time of conviction as there is no power to make such an order in the case of such a person as we have set out at paragraph 19 above.

iii) If such a direction is not appropriate the court must then consider, before going further, whether, if the medical evidence satisfies the condition in s.37(2)(a) (that the mental disorder is such that it would be appropriate for the offender to be detained in a hospital and treatment is available), the conditions set out in s.37(2)(b) would make that the most suitable method of disposal. It is essential that a judge gives detailed consideration to all the factors encompassed within s.37(2)(b). For example, in a case where the court is considering a life sentence under the Criminal Justice Act 2003 as amended in 2012 (following the guidance given in in Attorney General's Reference (No.27 of 2013), R v Burinskas [2014] 1 WLR 4209), if (1) the mental disorder is treatable, (2) once treated there is no evidence he would be in any way dangerous, and (3) the offending is entirely due to that mental disorder, a hospital order under s.37/41 is likely to be the correct disposal.

iv) We have set out the general circumstances to which a court should have regard but, as the language of s.37 (2)(b) makes clear, the court must also have regard to the question of whether other methods of dealing with him are available. This includes consideration of whether the powers under s.47 for transfer to prison for treatment would, taking into account all the other circumstances, be appropriate.

55. If the court, after considering the matters set out in s.37(2)(b), considers that a hospital order is the most suitable method, then it will generally be desirable to make such an order without consideration of an interim order under s.38 unless there is very clear evidence that such an order is necessary.”

12. A level of misunderstanding of the guidance offered in Vowles appears to have arisen as to the order in which a sentencing judge should approach the making of a s.37 or a s.45A order and the precedence allegedly given in Vowles to a s.45A order. In our view, s.45A itself could have been better drafted but the position is clear. Section 45A and the judgment in Vowles do not provide a ‘default’ setting of imprisonment, as some have assumed. The sentencing judge should first consider if a hospital order may be appropriate under section 37 (2) (a). If so, before making such an order, the court must consider all the powers at its disposal including a s.45A order. Consideration of a s.45A order must come before the making a hospital order. This is because a disposal under section 45A includes a penal element and the court must have ‘sound reasons’ for departing from the usual course of imposing a sentence with a penal element. Sound reasons may include the nature of the offence and the limited nature of any penal element (if imposed) and the fact that the offending was very substantially (albeit not wholly) attributable to the offender’s illness. However, the graver the offence and the greater the risk to the public on release of the offender, the greater the emphasis the judge must place upon the protection of the public and the release regime.

13. The reason for the court’s emphasis on the penal element of any sentence in Vowles is to be found in the purposes of sentencing set out in s.142 of the Criminal Justice Act 2003. They are:

(a) the punishment of offenders,

(b) the reduction of crime (including its reduction by deterrence),

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences.

14. It follows that, as important as the offender’s personal circumstances may be, rehabilitation of offenders is but one of the purposes of sentencing. The punishment of offenders and the protection of the public are also at the heart of the sentencing process. In assessing the seriousness of the offence, s. 143 (1) of the Criminal Justice Act provides that the court must consider the offender’s culpability in committing the offence and any harm caused, intended or foreseeable. Hence the structure adopted by the Sentencing Council in the production of its definitive guidelines and the two pillars of sentencing: culpability and harm. Assessing the culpability of an offender who has committed a serious offence but suffers from mental health problems may present a judge with a difficult task but to comply with s.142 and the judgment in Vowles, he or she must attempt it.

R v Ahmed [2016] EWCA Crim 670

15. In R v Ahmed [2016] EWCA Crim 670 the court considered the decision in Vowles and adopted this approach. On the particular facts of that case namely where the offender’s mental disorder was diagnosed after sentence and no hospital order or s.45A order was available to the sentencing judge, where the offender had served the penal element of the sentences under consideration and where he had recently made significant progress, the court allowed an appeal by quashing a sentence of IPP and substituting an order under ss.37 and 41 of the MHA. Particular consideration was given to the regime for deciding release and monitoring the behaviour of the offender after release, in other words, the regime best suited to protect the public. The court was informed and accepted that the supervision Ahmed would require on his release could be better provided on release from a s.37/41 order rather than a prison sentence, even if a s.45A order had been available. We note from the judgment that the assertion that a s.37/41 release regime offered the better protection for the public was not challenged.

Comparison of release regimes under s.37/41 and s.45A

16. The opinion proffered by the psychiatrist in Ahmed was one which the psychiatrists instructed by the parties mostly shared. However, the members of this court wished to know more. Accordingly, we invited submissions on why a regime under ss. 37 and 41 would necessarily provide a regime better suited to protect the public as opposed to a post s.45A licence regime with specific conditions and whether the observations in Ahmed might be of general application as claimed before us or confined to the individual facts as Gross LJ (who presided in Ahmed) stated was the case in Hoppe [2016] EWCA Crim 2258.

17. Mr Beckford a senior Probation manager was called on very little notice by Mr Orchard to describe the system of release on licence from prison. He did his best to assist and explained why in his opinion the release regime for an offender on prison licence can be as effective, if not more effective, to protect the public than a s.37/41 release regime. However, he admitted he had no experience of the kind of supervision and risk management that would apply to the most serious cases.

18. The Ministry of Justice is responsible for both regimes and for funding both regimes. Intending no disrespect to Mr Beckford, we invited Mr Orchard to seek further evidence from someone with greater knowledge and experience than Mr Beckford of the most serious cases. Mr Denman, Head of Practice Development and Public Protection sent a letter explaining the operation of the s 45A orders from the point of view of the National Probation Service. His letter and accompanying documentation was sent to the parties and no further representations were received from them. We shall now summarise the new information.

Provision of after-care services

19. Section 117 of the MHA requires the responsible after-care bodies in co-operation with relevant voluntary agencies, to provide after-care for patients detained, transferred, or admitted under sections 3, 37, 45A, 47 or 48 MHA, who then cease to be detained. The duty to provide such services continues until such time as the person is no longer in need of such care.

20. Although not the health care provider, HM Prison and Probation Service and the National Probation Service (NPS) work closely with healthcare providers and have clearly defined arrangements (Multi Agency Public Protection Arrangements – MAPPA) to ensure the risk is properly managed in the community.

Offenders with MAPPA eligibility

21. There are three levels or categories of MAPPA licence prisoners. Category 1 covers those subject to the notification requirements of the Sexual Offences Act. Category 2 covers those convicted of murder or an offence specified in Schedule 15 or s.325(4A) of the Criminal Justice Act 2003 and sentenced to twelve months or more imprisonment or detained in hospital subject to provisions of the MHA, including those found not guilty by reason of insanity or unfit to plead (having done the act). Category 3 is for those who do not qualify under categories 1 and 2, but the responsible authority considers, by reason of their offence, that they currently pose a risk of serious harm to the public that requires active multi-agency management.

22. The MAPPA framework means that for every released prisoner who is eligible, all the relevant agencies are involved in planning his risk management. This includes Mental Health specialists, the police, probation officers, social care experts and those who provide specialist Mental Health accommodation with 24 hour staffing.

23. Mental health practitioners have a duty to co-operate with MAPPA and share information about patients that is relevant to the statutory purposes of assessing and managing risk, even where the patient does not consent.

24. The MAPPA level is set for each case up to the most serious level of risk to the public and when the offender is released on licence measures are put in place to monitor his mental health. The lead agency would act to manage the risk presented if the offender’s mental health deteriorated and placed the public at risk, including recall to custody.

Consultant (Forensic) Psychiatry as opposed to Consultant (Clinical) Psychiatry

25. One of the witnesses before us (Dr Whitworth) questioned whether the MAPPA system involves the use of forensic psychiatrists. HMPPS are not aware of any NPS policy document that makes a distinction between Forensic and Clinical psychiatry in terms of a) consultation and b) service delivery. The Mental Health guidance documents provided for them are focussed on the needs of the offenders.

26. We were assured that the National Probation Service (the NPS) seeks to involve Mental Health specialists, including forensic psychiatrists, in risk management planning prior to an offender leaving prison and when on licence. Probation staff will ensure that all efforts are made to involve both past consultants and current prison healthcare, hospital consultants and social workers, as well as the community forensic mental health teams in risk planning. It would be for the clinicians responsible for an offender’s treatment/assessment plan to decide on the most appropriate specialism of psychiatry required to treat and manage an offender’s care.

Licences

27. Every offender on licence will be subject to a series of licence conditions. Seven are standard, including the conditions not to re-offend, not to travel abroad and to be of good behaviour. When drawing up a release plan, a Probation Offender Manager (OM) may request one or more additional conditions to be placed on the licence. These can only be used where they are necessary and proportionate to manage the risks or issues posed by an offender and will take into account risk assessments, police intelligence, victim’s services and all other relevant sources of information including medical recommendations. Thus, a condition may read: “Attend all appointments arranged for you with X a psychiatrist / psychologist / medical practitioner and co-operate fully with any care or treatment they recommend”. This will include any drug treatment.

28. This condition should only be used if the offender consents to the treatment. Where consent is not forthcoming, the inference can be drawn that the risk of serious harm is not being addressed and the purpose of supervision/rehabilitation undermined. It will then be possible to recall under the relevant standard condition.

29. Following release on licence, should an offender be identified as having breached a licence condition then the OM will consider whether the breach warrants an application for recall to custody or if an alternative response such as a licence variation is required. Should the OM decide that a recall is needed, he/she will contact the Public Protection Casework Section in HMPPS to request this.

30. As it seems to us, therefore, the conclusion expressed in Ahmed that the regime under ss. 37 and 41 would necessarily provide a regime best suited to protect the public as opposed to a post s.45A licence regime was confined to the facts of that case. We respectfully agree with Gross LJ that the court’s observations are not of any general application. The court’s conclusion as to which regime will better protect the public will depend on a careful assessment of the facts of an individual case.

Rules governing applications to this court to advance new grounds or fresh evidence

31. Finally, on the issue of general principles, we should express our concern that some practitioners are either ignoring or are unaware of the rules governing applications to this court. First, in the Edwards appeal, Mr Magarian QC assumed that if Edwards’ appeal against the life sentence failed, he could simply advance, with no notice, an alternative ground that the minimum term was excessive. If an appellant or an applicant wishes to advance a fresh ground of appeal, he or she must make an application to vary. Their advocate must explain in terms why the ground was not advanced before the single judge and why it is arguable.

32. Second, save for counsel in the case of Langley, his colleagues did not seem to be aware of the judgment in Rogers and others [2016] EWCA Crim 801 in relation to the calling of fresh evidence in appeals against sentence. At paragraphs 8 and 9 the court observed:

8 The circumstances in which the court will receive updated information not before the trial judge were described by Lord Judge CJ in R Roberts, R v Caines [2006] EWCA Crim 2915, [2007] 1 WLR 1109 at paragraph 44:

“From time to time, the court will be provided with updated information about the offender. This sometimes takes the form of prison reports, sometimes confidential information from the police. The sources vary. The information may serve to show, for example, that the prisoner has provided considerable assistance to the police; sometimes aspects of the mitigation are significantly underlined in a way which may not have been as clear or emphatic in the Crown Court; sometimes the information may indicate that the offender has made significant progress since the sentence began, a feature particularly relevant in cases involving young offenders. The formal procedures for the admission of fresh evidence are not followed. This court simply considers the evidence before it. So, for example, if a young offender has responded positively to his custodial sentence, and his progress is such that it may be counter-productive for him to serve the sentence actually imposed, it may be reduced on appeal, or changed to a non-custodial disposal, without any implied criticism of the decision of the Crown Court. In short, post-sentence information may impact on and produce a reduction in sentence (for a recent example of post-sentence evidence bearing on and explaining aspects of mitigation, with a consequent reduction in the minimum term following conviction for murder, see R v Sampson [2006] EWCA Crim 2669 ).”

9 As was explained in R v Beesley and Coyle [2011] EWCA Crim 1021, [2012] 1 Cr App R (S) 15 at paragraphs 33-36, the exception is strictly limited. It will include updated pre-sentence and prison reports on conduct in prison after sentence, but not fresh psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made. In such a case, the court will apply the provisions of s.23 : see R v Hughes [2009] EWCA Crim 841 and [2010] EWCA Crim 1026 and R v Vowles [2015] EWCA Crim 45, [2015] 1 WLR 5131 at paragraphs 3 and 4. Compliance with s.23 is necessary for two reasons. First, because it is incumbent on those acting for the defendant to call all the evidence before the sentencing court, persuasive evidence is required to explain why it was not all called. Second, the court must consider whether it is in the interests of justice that it should be admitted notwithstanding that failure. If the advocate representing the applicant before this court did not represent the applicant at the trial or sentencing hearing, that advocate must obtain information from the advocate previously instructed as to why the evidence was not called: see R v Roberts [2016] EWCA Crim 71 at paragraph 40.

33. We emphasise that the exception is strictly limited and does not generally include fresh “psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made. In such a case, the court will apply the provisions of s.23.” In two of the present appeals, counsel should not have assumed that we would hear from the treating psychiatrists absent an application under s.23; nor should they have assumed they were entitled to call the psychiatrists to repeat before us what they had told the sentencing judge. In the event we decided we should hear from the experts de bene esse on the continuing treatment of the offenders since sentence (akin to an updated probation or prison report as described in Rogers and others) and the comparison between the two release regimes (s.37/41 and s.45A) for the offenders and the better protection of the public. As will become apparent, they could add little to what they had told the trial judges in written and oral reports but we are grateful to them for their assistance.

General principles

34. Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law.

i. The first step is to consider whether a hospital order may be appropriate.

ii. If so, the judge should then consider all his sentencing options including a s.45A order.

iii. In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence.

iv. To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions.

v. A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness.

vi. If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate.

vii. The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts.

viii. If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it.

ix. Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made.

35. We shall now turn to the individual appeals/application before us. In so doing we must remind the parties that we are an appellate not a review court and that the question for us is whether the sentence imposed was manifestly excessive or wrong in principle.

Edwards

36. The deceased, aged 78, lived on her own in Plumstead and suffered from dementia and was partly deaf. The appellant was her daughter. Although another daughter was her primary carer, on occasions the appellant would help look after her mother.

37. The appellant has a long history of mental illness. Her family was aware that she suffered from paranoid schizophrenia and, in the days leading up to the killing, she was described as being “down”. On the evening of 21 February the appellant’s sister went to her mother’s home and found her mother dead inside. The appellant admitted she was responsible, saying that the deceased looked like a witch and was cursed and that the killing had to be done. The cause of death was compression to the neck.

38. At the sentencing hearing the court heard evidence from Dr Dodge, a consultant forensic psychiatrist, who was the appellant’s treating clinician. He agreed with Drs Latham and Joseph, both consultant forensic psychiatrists, that the appellant suffered from a schizoaffective disorder, mixed type, and that she suffered from diminished responsibility. In oral evidence Dr Dodge confirmed that the appellant’s history showed that she posed a serious risk of harm to others. That previous history included a conviction in 1995 for an offence of causing grievous bodily harm, which involved the stabbing and choking of her daughter, who had also been the subject of a choking attack by her in 1991. The court dealt with the matter in 1995 by way of an order under ss. 37 and 41 MHA, from which she was conditionally discharged in 2004 and absolutely discharged in 2006. The medical reports showed that there were other occasions upon which this appellant had acted violently towards members of her family.

39. Immediately prior to the offence the appellant had been under the care of a community mental health team and had been receiving additional support from The Bridge Project, a non-statutory organisation. Her taking of medication was described as chaotic. She was described as having a brittle mental state. On stopping medication there was the potential for her to relapse quickly, that is, over days. Her history showed a pattern of relapse with the emergence of increasing numbers of symptoms on a regular basis. Resumption of medication improved her mental state relatively quickly. Dr Dodge stated, at paragraph 47 of his original report:

“This appears to be a case where mental illness plays a significant role in the emergence of risk behaviours, however, Ms Edwards had episodes of relapse in the period between offences without any risk behaviours being demonstrated. The emergence of such behaviours proves difficult to predict, to arise quickly without warning, and against vulnerable individuals in close personal relationships with Ms Edwards.”

40. Dr Dodge said there was a clear and significant link between periods of illness and her offending; but for her mental illness her offending would not have occurred. The offender had known what she was doing but would not have done it had she not been in her particular mental state. He did not disagree with the proposition that her offence was entirely attributable to the psychotic florid condition the appellant was in on the day of the offence. Dr Latham had said that the appellant was highly likely to have been substantially impaired in an ability to form a rational judgement, or to exercise self-control. Her mental disorder was very clearly a significant contributory factor. Dr Joseph spoke of the appellant’s dangerousness being entirely attributable to her mental illness.

41. In passing sentence, the judge said that the case was far from straightforward. He noted that there was clear evidence of a history of dangerous conduct and that the appellant had previously been dealt with by an order under ss.37 and 41 and had turned out to be a continuing danger. He said that the long term was difficult to predict. He had regard to the evidence of her brittle mental state, which would relapse quickly when the appellant did not take her medication and her history of chaotic non-compliance. This meant that when medication made her well she did not pose a risk but her problems were not solved permanently, as this offence tragically demonstrated. The judge accepted that the appellant’s acts were entirely attributable to her psychotic condition. He concluded that there was a definite risk of serious harm in the future and that the appropriate course was to pass a sentence of life imprisonment coupled with a s.45A order with a limitation direction. The judge imposed a term of life imprisonment with a minimum term of 10 years and a hospital and limitation direction under s.45A of MHA.

Grounds of Appeal

42. The grounds of appeal submit, firstly, that a life sentence was inappropriate for which proposition reliance is placed on the decisions in R v Kehoe [2009] 1 Cr App Rep (S) 9 and Wilkinson [2010] 1 Cr App Rep (S) 100. We can deal with this point at once. Those two decisions are now of limited assistance since they relate to a period when a sentence of imprisonment for public protection was available under the Criminal Justice Act 2003. The decision in Attorney General’s Reference No. 27 of 2013 (Burinskas) [2014] 2 Cr App R (S) 45 shows that this is the case. In our judgment, where the facts of a case such as this indicate that the offender is likely for the foreseeable future to pose a risk of serious harm to others, a sentence of life imprisonment cannot be criticised as excessive if a hospital order is ruled out.

43. During his oral submissions to us, Mr Magarian QC complained about the length of the minimum term imposed. There had been no complaint about that in any of the documentation he had previously submitted to the court and it did not form part of any ground of appeal. When this was pointed out to Mr Magarian he applied to amend his grounds to incorporate a complaint about the length of the minimum term. His essential submission was that given the judge’s finding that Ms Edwards’ offending was entirely attributable to the mental disorder the minimum term failed to reflect a very low level of culpability or, indeed, the tendering of an early guilty plea. Whilst we strongly deprecate the failure to advance this matter as a ground of appeal at any point before the hearing, we now give leave for the grounds to be amended in the interests of justice.

44. The main issue in this appeal, raised on behalf of the appellant, is whether there should have been a hospital order rather than an indeterminate sentence with a s.45A order in circumstances where the expert reports all proposed a hospital order. It was submitted that Vowles wrongly gave s.45A precedence over an order under s.37 and that the post-release regime under a hospital order supervised by medical experts, rather than the probation service, was clearly the appropriate way of dealing with this case. On behalf of the respondent, it was submitted that the judge had been entitled to find that even with treatment there remained the element of dangerousness given the previous history and chaotic compliance in taking medication. Since that element of risk existed, the judge had been entitled to conclude that an order under ss.37 and 41 was not an appropriate disposal of the case. This was so even in a case of low culpability because the appellant had been aware of the consequences of not taking medication. The need for public protection was particularly strong given the history of violence before the fatal episode.

45. Dr Dodge provided a report for this court which showed that the introduction of different medications and treatments have led the appellant’s symptoms to come under better control. He attended the hearing and he gave evidence de bene esse. He referred to evidence of certain personality traits which do not, in his opinion, cross the threshold for a personality disorder. At paragraph 35 of his report he stated that when compliant with medication, the appellant can have prolonged periods of remission from her mental illness and function independently. However, he also commented:

“It would also appear that although the risk of relapse is significantly reduced with compliance with medication, it is not completely extinguished, and that increased stress levels and poor sleep can lead to deterioration in her mood and the possibility of relapse of her mental illness. This vulnerability is likely linked to her underlying personality structure, and the treatment plan moving forward in hospital aims to address this.”

He later stated:

“Whilst there are episodes of concerning behaviour which occur outside of relapse in the mental illness, these are not behaviours which I would consider pose a risk of serious physical harm to others, and I leave it to the court to decide, in the light of the other aspects of this case available to them to consider, whether or not this would amount to dangerousness.”

46. In addition to providing the update Dr Dodge was asked to comment on the difference between post-release supervision regimes under s.45A and s.37/41. He said there was little experience of the way in which the probation service would supervise licence conditions under s.45A. Whilst it might be possible to impose conditions relating to attending medical appointments and co-operating with medical care after a s.45A release, in his view there would be a difference in the level of supervision available under a s.37/41 release; there would be more frequent conduct and such supervision would be by medical professionals rather than by a probation officer. He accepted that the evidence showed that Ms Edwards had been in contact with mental health professionals in 2014/15. This was at a time when her condition was deteriorating and when she was not taking medication. He said she had been in contact with a very experienced psychiatrist who had not detected serious problems, which it was clear, from a reading of Ms Edwards’ diaries, had existed at that time. Dr Dodge envisaged a spell of four to five years in hospital before consideration for conditional release, if a s.37/41 order were to be made.

Conclusions

47. As the sentencing judge observed, this was not a straightforward sentencing exercise, balancing the gravity of the crime and the protection of the public with the interests of the appellant. The judge carefully considered each of the questions posed in Vowles and answered them all, save the last, in the way the appellant would have wished. He rejected the assertion that, having regard to all the circumstances and the other means of disposal available to him (including a section 45A order) an order under section 37 was appropriate.

48. In our judgment, there are a number of reasons why his approach cannot be criticised. The appellant had a record of violence and had been made subject to a s/37/41 regime before. At time of the offence she had been in contact with a very experienced psychiatrist and her serious problems had not been detected. She is at risk of a rapid relapse if she does not take her medication. The judge’s sentencing remarks indicate she had chosen not to take her medication at a time when she was involved with the mental health services. The protection of the public, always an extremely important factor, assumes an even greater significance in her case. She is highly dangerous and likely to remain so for the foreseeable future. If this should be thought in any way harsh, her substantially diminished responsibility was taken into account in the acceptance of the plea of guilty to manslaughter.

49. Furthermore, given her past violence towards members of her family, she must have had some (albeit limited) awareness of the consequences of taking her medication erratically. We assess her culpability as between low and moderate. She committed an extremely serious offence and one that has had the most devastating consequences for her family. A penal element to the sentence was therefore required and a life sentence with a s 45A order and a limitation direction cannot be criticised as wrong in principle or excessive.

50. However, we do see some merit in the ground advanced as to th e length of the minimum term. As we have indicated, her culpability was between low and moderate. She would not have killed but for her mental illness and her chaotic compliance with her medication was due in some measure to her illness. We reduce the minimum term to reflect those facts to one of 5 years. To that extent the appeal is allowed.

Knapper

51. The appellant Knapper, having pleaded guilty to manslaughter by reason of diminished responsibility, was sentenced at Stafford Crown Court on 2 September 2016 to life imprisonment with a minimum term of 4 years and 172 days, which took account of time spent on remand. It was further ordered that the appellant be subject to a hospital order under s.45A, including a limitation direction equivalent to that under s.41.

52. The offence took place on 21 February 2016. The appellant was the partner of the victim, by whom he had two children. The pair had been in a relationship for many years and it appears that the relationship was volatile at times. At the time of the killing, the appellant, who had a history of paranoid schizophrenia, was in a psychotic state. He had two previous convictions, both in 2002, for offences of battery and criminal damage.

53. Shortly before the killing the victim had reported to her mother that the appellant was behaving strangely. This was confirmed by the appellant’s son. On the day in question the appellant attacked the victim in the family home. She ran upstairs and took refuge in a bedroom. She was bleeding from a head wound and tried to barricade the door. The appellant forced open the door and repeatedly stabbed her. There were 17 injuries to back, face, chest and legs. The fatal wound passed through her neck into her chest and then through her aorta. The appellant’s children were in the house at the time and aware of the attack upon their mother.

54. After arrest it was clear that the appellant was unwell. He assaulted police officers and was assessed as unfit to be interviewed. He presented as paranoid, psychotic and delusional. He had been treated in the past with anti-psychotic medication but had not been taking this since March 2015. At the time of the killing he was under stress; his grandfather’s funeral had been due to take place shortly. Mental health professionals had seen him on 17 February and had noted concerns.

55. There were reports from three consultant forensic psychiatrists (Drs Whitworth and Srinivas for the defence and Dr Kennedy for the Crown). They agreed that at the time of the killing the appellant was suffering from paranoid schizophrenia which substantially impaired his ability to make rational judgments and exercise self-control. The illness was not self-inflicted in the sense that it was related to drug or alcohol abuse. Dr Whitworth described the illness as the sole driver for the offence. Dr Kennedy said it explained the offence in large part. The appellant had first been referred for psychiatric treatment in 2009 and had intermittent contact with mental health teams, without inpatient treatment, up to the date of the offence. His illness required long-term treatment. Since arrest he had co-operated fully and had responded well to treatment and medication provided after admission to hospital.

56. Dr Whitworth gave oral evidence to the court below. She stated that the trigger for this offence appeared to be the combination of acute stress, consequent on the grandfather’s death, and the fact that he was not taking prescribed anti-psychotic medication at the time. On previous occasions when he had stopped taking medication, his relapses had not involved significant violence or aggression. Although he had discontinued his medication about 10 months before the offence he had continued to engage with mental health teams until shortly before the killing. It was Dr Whitworth’s opinion that a hospital order with a s.41 restriction was the most appropriate disposal. In coming to this conclusion, she had considered the alternative of a s.45A direction. She said that if the appellant’s symptoms were controlled by medication there was nothing in his history to suggest he posed a danger to the public.

57. Dr Whitworth stated that in the absence of personality disorder or substance misuse, management under a s.41 restriction order would be the most appropriate way of managing the risk the appellant represented to the public in a case where risk arose purely out of a mental illness. She envisaged the need for a lifelong regime of anti-psychotic medication, supervised by forensic services. In passing sentence, the judge noted that the criteria for a hospital order, coupled with a s.41 restriction, were made out. He then continued:

“However, before a hospital order is made under s.37 with a s.41 restriction, I am required under s.45A to consider whether the mental disorder can appropriately be dealt with by a hospital limitation direction under that provision. If it can be, I am required to make such an order; in order to decide that I need to assess culpability.”

58. In addition, there were passages in exchanges between the judge and prosecuting counsel in which the judge gives the impression that he regarded Vowles as creating a default position that even if there was a psychiatric condition there should be a s.45A disposal of the case.

59. In considering culpability, the judge noted that there had been previous episodes of mental illness diagnosed as paranoid schizophrenia in which the appellant knew that his condition had affected his behaviour. The judge commented that nonetheless the appellant had chosen to discontinue the medication that controlled his condition in March 2015 because he considered it affected his weight. Shortly beforehand he had failed to attend a doctor’s appointment arranged by a care co-ordinator because of her concerns. The judge concluded that whilst his culpability was reduced by the mental illness to a large extent, the appellant remained criminally responsible to a ‘moderate’ degree. The judge was satisfied that the appellant was a dangerous offender, particularly taking account of a history of non-compliance with medication. This was not a case where, once treated, the offender would cease to be a danger to the public; nor was it a case where the offending was entirely due to the mental disorder without any culpability. For these reasons, an order under ss.37 and 41 was not appropriate. There was cause for a punitive element and measures which would effectively protect the public. Accordingly, a life sentence and a s.45A order with a limitation direction was made.

Grounds of Appeal

60. For the appellant, it was submitted that such a sentence was inappropriate. The effect of that sentence would be to produce a less suitable post-release supervision regime for this appellant, given the risk posed by his illness. This was a man who needed treatment and would do so for the foreseeable future. His offending was inextricably linked to his disorder and the need for punishment was much reduced by factors going to culpability. The risk posed derived solely from his illness and its medication; accordingly, decisions as to release and supervision post-release were best dealt with by the First Tier (Mental Health) Tribunal and medical professionals. Reliance was placed on the decision in R v Ahmed, concerning the management of future risk and its importance in the sentencing decision. It was submitted that proper application of the four considerations listed at paragraph 51 of R v Vowles illustrated the suitability of a hospital order.

61. Mr Watkins challenged the judge’s assessment of culpability as being “moderate”. He submitted that it should be regarded as being minimal or very low. He accepted that the failure to take medication imported a level of culpability but said that this was offset by three factors. Firstly, nothing in the appellant’s history showed that he ought to have known that desistance from medication would lead to serious violence. Secondly, even when not taking medication, the appellant had continued to engage with the community mental health team. Thirdly, and most importantly, Dr Whitworth had said that lack of insight was a very common symptom of schizophrenia resulting in an inability to understand the implications of not taking medication as advised. In this case, that lack of insight into the nature of the illness and the need for treatment was the reason the appellant failed to take medication. It was reflective of a recognised symptom of an untreated mental illness.

62. No issue was taken with the term of life imprisonment or the minimum term if such a disposal was appropriate.

63. On behalf of the Crown, Ms Brand QC acknowledged that the judge, in his sentencing remarks, had appeared to give priority to a sentence of imprisonment with a hospital direction under s.45A, perhaps as a result of the words at paragraph 54(i) of Vowles. However, she pointed out that the relevant words of s.45A are:

“This section applies where …

(b) the court considers making a hospital order in respect of him before (our italics) deciding to impose a sentence of imprisonment…”

Accordingly, the words of s.45A make it clear that the sentencing judge should first consider whether a hospital order (and restriction order) under ss.37 and 41 may be a suitable disposal of the case. The terms of s.37(2)(b) then require the court to consider all the circumstances of the offence, the offender and other available methods of dealing with him. As we have already said, these will obviously include considering the availability of a s.45A order before making a final decision as to the appropriate form of sentence.

64. Ms Brand submitted that the judge had properly considered the issue of culpability as a relevant consideration in deciding the most suitable method of dealing with the case and that it was open to him to make a finding of moderate culpability. Although he had not rehearsed the different regimes for release and post-release supervision arising from a prison or hospital order disposal, he clearly had had public protection at the forefront of his mind and considered that this could be best achieved through the s.45A route in a case where he had found that there was a moderate degree of culpability.

65. Dr Whitworth attended the hearing before us and provided a further report recording that the appellant has remained in hospital, receiving treatment, and that he will continue to require vigorous treatment of his paranoid schizophrenia with careful and ongoing assessment of his mental state. She also gave evidence de bene esse. Her contention, echoed by the appellant’s counsel, was that mental health professionals are better prepared to detect and respond to early signs of mental deterioration than would be the case were the appellant to be managed under the life sentence regime. Probation staff are not highly trained in the assessment of mental illness and might thereby be less effective in managing risk. She reiterated a recommendation that a hospital order should be made.

66. In her oral evidence and her further report Dr Whitworth gave the evidence as to lack of insight referred to earlier and relied upon by Mr Watkins. In addition, she described her experiences of the two different post-supervision regimes. As part of her experience she had been a psychiatric member of the Parole Board between 2006 and 2014 and had contact with psychiatrists who supervised offenders on licence. The thrust of her evidence was that the forensic teams working under the s.37/41 regime were better placed to supervise offenders than their non-forensic colleagues who would be involved under s.45A licence. Such persons would be attached to local mental health care services and would not have the same experience as forensic professionals in managing risk. Moreover, the s.37/41 route would be likely to involve closer follow-up and reaction to any problems, normally within a 24-hour time frame. In the present case, prior to the offending the appellant had been known to the local mental health team which was aware of his non-medication but had not deemed his condition serious enough to warrant detention. Additionally, if the appellant were released from prison and became non-compliant with his licence he would be recalled to prison. If there were mental health issues a transfer under s.47 would be considered. Such transfer could take a great deal longer than desirable and might not be achieved for several months. The delay in treatment would be disadvantageous. By way of contrast, if there were concerns relating to a person released conditionally from a s.37/41 order they would be seen within 24 hours and, if need be, immediately recalled to hospital.

Conclusions

67. We are indebted to Dr Whitworth for the clarity and succinctness of her reports and evidence which we receive under s.23. We have our doubts as to whether she is entirely correct in her approach to release on a s.45A licence regime generally, in the light of Mr Denman’s information, but we have no doubts as to her expertise in managing her patients. She has considerable insight into the appellant’s condition, the risk he poses and the best way to manage his individual case. Had the judge not believed that the decision in Vowles provided a default position of a s.45A order, he may well have followed her recommendation that he impose a s.37/41 regime.

68. In assessing the seriousness of the offence, the judge noted that Knapper committed a grave crime and remains a highly dangerous man; protection of the public was correctly his highest priority. However, in our judgement, he placed Knapper’s culpability at too high a level. The evidence indicates his responsibility for his actions was not only substantially diminished, it was low. His failure to take his medication was very much linked to his illness. He had no reason to know that he would become violent if he failed to take the drugs as prescribed. He continued to engage with the mental health services available to him. Furthermore, we accept that the regime under ss.37/41, supervised by Dr Whitworth and her colleagues, would have significant advantages for the protection of the public on the particular facts of this case. Accordingly, we quash the s.45A order and substitute for it a hospital order under s.37 with a s. 41 restriction. We emphasise that we have done so on the assurance from the appellant’s treating doctor that the safety of the public will be uppermost in her mind should the time come when his condition improves to the extent his release can be contemplated.

69. We wish to stress that although the outcome of this appeal follows the recommendations in the medical evidence, our conclusion was not based upon the submissions made to us that the result in Ahmed should be regarded as being of general application. We bore in mind the guidance in Vowles at [51] that a court should not feel circumscribed by psychiatric opinion. Our conclusion in this case that a s37/41 order is the most suitable disposal is the consequence of careful examination of all the relevant circumstances including but not limited to the fresh medical evidence.

Matthew Langley

70. The appellant is now aged 36. On 27 July 2007, at the Crown Court at Sheffield, he pleaded guilty to two counts of making threats to kill, one count of damaging property and one count of theft. All the offences alleged against him arose out of an incident which occurred at the home of the appellant’s parents on 26 May 2007. Following the appellant’s guilty pleas sentence was adjourned for the preparation of pre-sentence and psychiatric reports.

71. On 21 September 2007, HHJ Keen QC sentenced the appellant to concurrent terms of imprisonment for public protection (IPP) in respect of the offences of making threats to kill. The judge specified that the minimum term to be served under the IPP was 1 year less 113 days spent on remand – a total of 252 days. HHJ Keen QC imposed concurrent terms of 6 months imprisonment and 3 months imprisonment for the offences of damaging property and theft.

72. The facts giving rise to the various offences were these. In May 2007 the appellant was living at the home of his mother and step father in Barnsley. On Saturday 26 May he was due to travel by bus with his brother and the brother’s family to an entertainment park where they were to spend a few days. The appellant’s mother and step father were also intending to join in the visit to the park but they intended to travel by car. During the course of the morning an argument began between the appellant and his mother about why he was not being taken to the park by car. The argument became heated and the appellant was heard by his mother to say “I’m gonna end up back in prison before too long. I’ll kill somebody and do life”. Although there was no physical violence at this point the appellant remained in a bad mood.

73. Some hours later, while the appellant was still at home, he became aggressive and then violent. He approached his mother, who was then sitting on her bed, and told her that he “could fucking kill her”. Her immediate reaction was to stand up and make to leave the bedroom. However, before she could do so the appellant threatened to kill her, gripped her around the throat with his left hand, squeezing hard and pinned her against a wall. At this point he began brandishing a large knife which he was holding in his right hand. He first brought the knife close to his mother’s head; next he held it close to her stomach. At the same time he was saying “I could fucking kill you; I could stab you”.