IN THE MATTER OF A REFERENCE BY THE ATTORNEY GENERAL
UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
HER HONOUR JUDGE KARU
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE LAMBERT
and
MR JUSTICE CALVER
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THE QUEEN |
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- and – |
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GURJEET LALL |
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Siobhan Grey QC for the Respondent
Hearing date: 12 March 2021
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Crown Copyright ©
Lord Justice Bean :
The facts
Medical reports
"Mr Lall was psychotic at the time, and was hyper vigilant with an exaggerated sense of threat due to his paranoia. What is more, the violent undertones of the text messages that he sent earlier that day suggests an undercurrent of disordered, psychotic, angry, and violent thoughts. These, coupled with his exaggerated sense of threat, would have served to drive the violent reaction that he had to the victim when he confronted Mr Lall about spitting in the street."
The Mental Health Act 1983 sections 37, 41 and 45A
"(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 subsection (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 subsection (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;… 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) An order for the admission of an offender to a hospital (in this Act referred to as "a hospital order") shall not be made under this section 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 for his admission to that hospital , and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, given such directions as it thinks fit for his conveyance to and detention in a place of safety…"
"(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."
"(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law—
(a) the conditions mentioned in subsection (2) below are fulfilled; and
(b) 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 subsection (1) above are that the court is satisfied, on the written or 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
(c) that appropriate medical treatment is available for him.
(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 direction 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…"
The authorities
"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 section 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. … 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. … This consideration may be one matter leading to the imposition of a hospital order under section 37/41.
53 The fact that two psychiatrists are of the opinion that a hospital order with restrictions under section 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, [and] (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 section 45A(1) of the MHA require, before a hospital order is made under section 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 section 45A. (ii) If it can, then the judge should make such a direction under section 45A(1). ... (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 section 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 section 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 section 37(2)(b)."
"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, section 45A 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 [of] 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."
"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."
"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."
Manslaughter definitive guideline: diminished responsibility
- "A conviction for manslaughter by reason of diminished responsibility necessarily means that the offender's ability to understand the nature of the conduct, form a rational judgment and/or exercise self-control was substantially impaired."
- The court should determine what level of responsibility the offender retained:
- High;
- Medium; or
- Lower
- The court should consider the extent to which the offender's responsibility was diminished by the mental disorder at the time of the offence with reference to the medical evidence and all the relevant information available to the court.
- The degree to which the offender's actions or omissions contributed to the seriousness of the mental disorder at the time of the offence may be a relevant consideration. For example:
- where an offender exacerbates the mental disorder by voluntarily abusing drugs or alcohol or by voluntarily failing to seek or follow medical advice this may increase responsibility. In considering the extent to which the offender's behaviour was voluntary, the extent to which a mental disorder has an impact on the offender's ability to exercise self-control or to engage with medical services will be relevant.
- The degree to which the mental disorder was undiagnosed and/or untreated may be a relevant consideration. For example:
- where an offender has sought help but not received appropriate treatment this may reduce responsibility.
Harm
For all cases of manslaughter the harm caused will inevitably be of the utmost seriousness. The loss of life is taken into account in the sentencing levels at step two."
"Step 4 – Consideration of mental health disposals (Mental Health Act 1983)"
Where:
(i) the evidence of medical practitioners suggests that the offender is currently suffering from a mental disorder,
(ii) treatment is available, and
(iii) the court considers that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, the court should consider all sentencing options including a section 45A direction and consider the importance of a penal element in the sentence taking into account the level of responsibility assessed at step one.
Section 45A hospital and limitation direction
a. Before a hospital order is made under section 37 (with or without a restriction order under section 41), consider whether the mental disorder can appropriately be dealt with by custody with a hospital and limitation direction under section 45A. In deciding whether a section 45A direction is appropriate the court should bear in mind that the limitation direction will cease to have effect at the automatic release date of a determinate sentence.
b. If a penal element is appropriate and the mental disorder can appropriately be dealt with by a direction under section 45A, then the judge should make such a direction. (Not available for a person under the age of 21 at the time of conviction).
Section 37 hospital order and section 41 restriction order
c. If a section 45A direction is not appropriate the court must then consider (assuming the conditions in section 37(2)(a) are satisfied) whether the matters referred to in section 37(2)(b) would make a hospital order (with or without a restriction order under section 41) the most suitable disposal. The court should explain why a penal element is not appropriate."
"Step 5 – IN ALL CASES consider factors that may warrant an adjustment to the sentence"
Cases of manslaughter by reason of diminished responsibility vary considerably on the facts of the offence and on the circumstances of the offender.
The court should review whether the sentence as a whole meets the objectives of punishment, rehabilitation and protection of the public in a fair and proportionate way.
Relevant factors will include the psychiatric evidence and the regime on release.
An adjustment may require a departure from the sentence range identified at step two above."
Sentencing Guideline – offenders with mental disorders
"The sentencer, who will be in possession of all relevant information, is in the best position to make the assessment of culpability. Where relevant expert evidence is put forward, it must always be considered and will often be very valuable. However, it is the duty of the sentencer to make their own decision, and the court is not bound to follow expert opinion if there are compelling reasons to set it aside.
The sentencer must state clearly their assessment of whether the offender's culpability was reduced and, if it was, the reasons for and extent of that reduction. The sentencer must also state, where appropriate, their reasons for not following an expert opinion.
Courts may find the following questions a useful starting point. They are not exhaustive, and they are not a check list as the range of offenders, impairments and disorders is wide.
- At the time of the offence did the offender's impairment or disorder impair their ability:
- to exercise appropriate judgement,
- to make rational choices,
- to understand the nature and consequences of their actions?
- At the time of the offence, did the offender's impairment or disorder cause them to behave in a disinhibited way?
- Are there other factors related to the offender's impairment or disorder which reduce culpability?
- Medication. Where an offender was failing to take medication prescribed to them at the time of the offence, the court will need to consider the extent to which that failure was wilful or arose as a result of the offender's lack of insight into their impairment or disorder…..
- Insight. Courts need to be cautious before concluding that just because an offender has some insight into their impairment or disorder and/or insight into the importance of taking their medication, that insight automatically increases the culpability for the offence. Any insight, and its effect on culpability, is a matter of degree for the court to assess."
Sentencing remarks
"The reports contain full details of a mental history going back to 2008 when, at the age of 24, the defendant first came to the attention of the psychiatric services with incidents of violence and aggression, auditory hallucinations, cannabis and alcohol misuse, attempts at the provision of medication which, on occasion, he did take but more regularly did not, and the carrying weapons when his paranoia was at the fore. He has been admitted to a psychiatric hospital several times under section 2 or section 3 of the Mental Health Act, and has been on a community treatment order from 2010 to 2013. He remained under the community team until October 2018, after which he was discharged to his GP. It appears he last took medication in or about February 2018…
According to the Sentencing Guidelines for Manslaughter by Diminished Responsibility, the court must follow a four-step approach. First, the court should determine what level of responsibility the offender retained; high, medium, or low.
[The judge quoted from the reports of Dr Farnham, Dr Lock and Dr Jeanneret, and continued:]
The harm in a case of manslaughter is inevitably of the upmost seriousness. In my judgment, having regard to medical evidence and all the relevant information available to the court, the level of responsibility is in the lower category.
At step two, the court must assess the sentence within the category range taking into account the aggravating and mitigating factors. The starting point for the lower category is seven years' imprisonment, with a range of three years to twelve years. Had the defendant been convicted of murder, the starting point would have been 25 years' imprisonment as a knife had been taken to the scene and been used.
Taking into account all the evidence in the trial; the defendant's previous convictions, including two for possession of an offensive weapon, the last one in January 2019 for which he was sentenced to four months' imprisonment; the offence involving the use of a weapon; it was committed under the influence of alcohol; and the deceit practised by obtaining prescriptions of the antipsychotic medication so as not arouse the GP's suspicions and then deliberately not taking it, the level of responsibility retained by the defendant, in my judgment, is at the upper end of the lower category and, subject to additional considerations which follow, would attract a term of 12 years' imprisonment.
At step three, the court is required to consider dangerousness and whether a life sentence or an extended sentence would be appropriate. Manslaughter is a serious specified offence for the purposes of sections 224 and 225(2) of the Criminal Justice Act 2003, and it is an offence listed in part one of schedule 15B for the purposes of consideration of dangerousness under section 226A.
Dr Lock, at paragraph 17 of his report dated 20 October 2020, states, and I quote, "In my opinion, although Mr Lall's psychotic illness had a major part to play in his behaviour at the time of the index offence, other factors need to be considered including antisocial personality traits, his illicit substance and alcohol misuse, his anger and ability to control his emotions, his dissatisfaction with his life, and his racist views."
Dr Farnham, in his report dated 30 November, disagrees with Dr Lock in respect of the antisocial personality traits. In his opinion, he says, the defendant had no insight into his mental illness and it is likely that symptoms of untreated or partially treated psychosis have been implicated in most of his antisocial and violent behaviour. He said, and I quote, "Psychosis represents the major risk factor for any future violent offending, rather than antisocial personality traits, or illicit drug use, or tendency towards racism."
Despite the disagreement over whether there are antisocial traits, both experts agree that the illness, if untreated, is severe enough to make him dangerous within the meaning of the Criminal Justice Act 2003, because the consequential increased paranoia and irritability will adversely affect his ability to act rationally and exercise self-control. Dr Lock says that, until he has undertaken therapy and made substantial progress, he will remain highly dangerous. Dr Jeanneret states the index offence demonstrates that, when psychotic, he is capable of very serious violence and that his offending has occurred in the context of non-compliance with medication.
I am satisfied, on all the evidence and the material I have been provided with, that there is a significant risk of serious harm to other persons occasioned by the commission of further offences by the defendant, and that he is dangerous as defined in the legislation.
What is not certain is how long he will be a risk to others. Plainly, a reduction in the obvious risk to the public posed by him is dependent upon his response to treatment for his mental condition. So far, he has expressed the view that he does not wish to take medication and that he would rather be returned to prison than remain in hospital if it means he would be forced to take medication. The defendant has not attended court for this sentence today. At present, antipsychotic treatment has not commenced. It is not known what the response to treatment will be -- although past history does suggest that he does take medication and, when he does, he remains stable -- or when or how complete his recovery will be.
Having regard to the psychiatric evidence, there remains a risk of a further psychotic episode particularly if the defendant fails to take his antipsychotic medication and/or uses illicit drugs again. It was, and still is, simply not possible to say if and when the risk of him causing serious harm to members of the public will be reduced to an appropriate level. In those circumstances, a sentence of life imprisonment or an extended sentence would be considered appropriate. The consultants, however, have unanimously recommended a section 37/41 order under the Mental Health Act 1983, as amended.
That brings me on to step four of the Sentencing Guidelines because the court is required to consider mental health disposals. I bear in mind the guidance given in the cases of R v Vowles, Fisher, and Edwards. I have also considered the Sentencing Offenders with Mental Disorders, Development Disorders, or Neurological Impairments Guideline which came into force on 1 October 2020.
Where the evidence of medical practitioners suggests that the offender is currently suffering from a mental disorder, treatment is available, and the court considers that a hospital order, with or without a restriction order, may be an appropriate way of dealing with the case, the court should consider all sentencing options, including a section 45A direction, and consider the importance of a penal element in the sentence taking into account the level of responsibility assessed at step one.
In considering sentence, the court is concerned, on the one hand, with appropriate punishment and, on the other, with the protection of the public. They run hand in hand, especially in a case in which a defendant suffers from a mental disorder which significantly influenced the commission of the offence. It is of note that Dr Lock states that, in his opinion, it is highly unlikely that Mr Lall would have committed the index offence if he had remained compliant with taking the prescribed medication to treat his psychiatric illness. Drs Lock, Farnham, and Jeanneret also agree that non-compliance was attributable to the illness itself. They are unanimous in their respective opinions that, given his schizophrenia which was a significant factor in the offending, the most appropriate sentence is a hospital order with a restriction order under section 37, 41 of the Mental Health Act 1983, as amended.
Dr Farnham states his mental illness has not been treated particularly assertively in the past and, if it is, that is likely to reduce the severity of his psychotic symptoms and reduce the future risk of dangerousness. Dr Jeanneret, in evidence, agreed with this today. They agree, therefore, having regard to the nature of the offence, the defendant's antecedents, and the risk of him committing further offences if set at large, that it is necessary for the protection of the public from serious harm to impose the restriction order. They have considered a section 45A hybrid order, but principally, because of the regime on release -- i.e. the First Tier Tribunal rather than the Parole Board -- it is best placed to consider a conditional discharge. In their opinion, public protection is best achieved by a section 37/ 41 order.
Dr Jeanneret this morning, when asked questions by Mr Orchard, QC on behalf of the prosecution, did agree that it is possible for the Parole Board to impose a condition that the defendant is compelled to take his depot injection but, in essence, it is the whole supervision regime post release under section 37/41, as opposed to section 45A, that he believes is the distinguishing factor. Quoting from Dr Jeanneret's report at paragraph 10.4.1:
"It is likely that, were Mr Lall to accept treatment for his paranoid schizophrenia and were it to be successful, his risk of violence would be very significantly reduced. There would be little difference in the day-to-day hospital management of Mr Lall under the section 37/41 or the section 45A regimes. The most palpable difference would be that he would be entitled to leave with MOJ approval under the former. This would only be applied for once the treating team had satisfied themselves that his risk to others had reduced significantly. This is likely to include him complying with medication and engaging with psychology work regarding his mental illness and the risk that he poses to others.
Under a section 45A regime, Mr Lall could be remitted back to prison once his mental state was deemed to have improved sufficiently. There is also the possibility that he would be remitted back were he found to be untreatable and his risk to himself or others on remittal was not deemed to be high. Just on this point, the yo-yoing that would be involved if the defendant was returned to prison and his mental state deteriorated and then returned to hospital cannot be said to be conducive to his mental health and treatment."
Dr Jeanneret says further:
"Under the section 37/41 regime, eventual discharge from hospital would be likely to be via the First Tier Tribunal. The defendant would have the right to apply to such tribunals and to ask them to consider his discharge, likely a conditional discharge, into the community. Were he to continue to refuse treatment, there is a very high possibility that the tribunal would not discharge him. In terms of the release regimes, managing Mr Lall's risk in the community would, in very large part, be based on managing his mental illness."
Dr Jeanneret confirmed that the regimes are different and that the section 37/41 regime would be the most sensible. The Mental Health Services would be the primary agency and would guarantee the allocation of a social supervisor and a clinical supervisor, likely a consultant psychiatrist. These professionals would have to provide reports to the Ministry of Justice every three months, with regular reviews of the patient. Supervision by the Mental Health Services would have the advantage, over supervision by the Probation Service under the section 45A release regime, in that subtle signs of relapse in Mr Lall's psychosis could be picked up by his social supervisor or his clinical supervisor.
The sentencing exercise in this case is not an easy one. I have given it very careful consideration. The most serious offence in the criminal calendar is to have taken someone's life by committing a criminal offence. Punishment is obviously merited. However, as in the present case, where the offender suffers from a mental disorder which contributed significantly to the offence, the court must look ahead to see if it possible that the risk of reoccurrence can be substantially reduced if not completely eradicated. If that can be achieved in the way suggested by those who are experts in the field, namely the consultant psychiatrists, then that is the appropriate sentence to pass commensurate with my public duty.
Having heard the medical evidence which has been given in court today by Dr Jeanneret and having regard to the reports prepared by Dr Lock and Dr Farnham, all of whom are approved by the Secretary of State under section 12(2) of the Mental Health Act 1983, I am satisfied that the defendant is suffering from a mental disorder, namely paranoid schizophrenia, that this order is of a nature which makes it appropriate for him to be detained in a hospital for medical treatment, and appropriate medical treatment is available for him at the John Howard Centre.
I am of the opinion that, because of all the circumstances of this case, including the nature of the offence of manslaughter by diminished responsibility, of which he has been convicted, his character and his past antecedents, which include a long-standing and complicated history of mental illness, and having consider all the other available ways in which I might deal with him, the most suitable method of dealing with his case is by making an order under section 37 of the Mental Health Act 1983.
I, therefore, make an order that he will be admitted to and detained at the John Howard Centre. I am satisfied that arrangements have been made for him to be detained within 28 days to this hospital where he has already been for many months.
I have also considered whether this order should be subject to special restrictions which are specified in section 41 of the Act. Having heard the evidence of Dr Jeanneret, I am satisfied that, because of the nature of the offence and, also, having regard to his past, including his history of mental illness, and to the risk that he will commit further offences if he is not detained, it is necessary to protect the public from serious harm and it is not possible to say for how long that will be.
Accordingly, I order that he will be subject to the special restrictions set out in section 41 of the Mental Health Act 1983 without limit of time…"
MR ORCHARD: I just want to make sure that your Ladyship is content that you have dealt with the paragraph in Edwards, that you have explained why a penal element is not appropriate.
JUDGE KARU: Yes, I am satisfied.
MR ORCHARD: Thank you.
JUDGE KARU: I have been through the medical reports in full and it is plain that, although he had limited responsibility, the significant driver for his offence was his mental illness.
Submissions
Discussion and conclusion