R v Kitchener  EWCA Crim 937
Appeal against life sentence "On 22 November 2002 at the Crown Court at Cardiff before the Recorder of Cardiff His Honour Judge Griffith-Williams QC the applicant, then aged 20, pleaded guilty to attempted murder contrary to s.1(1) of the Criminal Attempts Act 1981. On 2 December 2002, he was sentenced by the same judge to custody for life with a minimum term of 4 years and 8 months less 4 months on remand in custody. His applications for an extension of time of about 14 years, for leave to appeal against sentence and to call fresh psychiatric evidence have been referred to the full Court by the single judge. The basis for the application for leave to appeal against sentence is that the applicant contends that he should have been sentenced to a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983 rather than to custody for life. The basis for the application for an extension of time is that the psychiatric report of Dr Sobia Khan dated 26 October 2015 was not available at the time of sentence. That report is said to satisfy the conditions for the admission of fresh evidence under section 23 of the Criminal Appeal Act 1968. The admission of the report is said to be both necessary and expedient in the interests of justice."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
The WLR Daily case summaries
 WLR (D) 460
Court of Appeal
Regina v Armel
2017 May 26; July 7
Flaux LJ, Blake , William Davis JJ
Crime— Sentencing— Hospital direction— Defendant convicted of attempted murder— Defendant sentenced to custody for life — Medical reports after sentence revealing defendant suffering from personality disorders at time of offence— Defendant’s personality disorders intimately associated with offence— Whether defendant requiring hospital treatment— Mental Health Act 1983 (c 20) (as substituted by Mental Health Act 2007 (c 12) Sch 1(1), paras 7(a), 9, Pt 1, cc 1, 2, s 4(5)(6), 10(8) and Youth Justice and Criminal Evidence Act 1999 (c 23) Sch 4, para 11), ss 37, 45A
In 2002 the defendant, aged 20, was charged with attempted murder. A report was sought from a consultant forensic psychiatrist who opined that the defendant suffered from no psychotic or serious medical illness. In reliance on that opinion, the judge at trial failed to consider a hospital order under section 37 of the Mental Health Act 1983 as the conditions in section 37(2)(a) had not been satisfied. The defendant was convicted and sentenced to custody for life to protect the public. Following a suicide attempt in 2007, he was transferred to a high security hospital, before being moved to a medium secure unit in 2014. He then sought fresh psychiatric evidence in the form of a psychiatric report from his responsible clinician, as to whether he was suffering from a mental disorder. In detailing the defendant’s medical history since sentence, she diagnosed depressive episode, emotionally unstable personality disorder and dependent personality disorder that were all mental disorders within the meaning of the 1983 Act. She said not only had he had been suffering from these personality disorders at the time of the offending, but they had been intimately associated with the offence he had earlier committed. The defendant contended that he should have been sentenced to a hospital order and restriction order under sections 37 and 41 of the 1983 Act and applied for an extension of time of 14 years for leave to appeal against sentence. The Registrar of Criminal Appeals directed a further psychiatric report be obtained. The second expert, a consultant forensic psychiatrist, concluded that the defendant had been suffering from a severe personality disorder at the time of the offence, which had features of psychopathic or antisocial personality disorder and was intimately associated with the offence he had committed. The defendant applied to call fresh psychiatric evidence in the form of both reports.
On the applications—
Held, appeal allowed. The psychiatric evidence which detailed the defendant’s medical history since sentence was credible and relevant in that it afforded a basis for allowing the appeal. It was fresh in that it could not have been obtained previously with due diligence. The diagnoses made by the first expert would have been extremely difficult to make in a young man of 20, at the time of the trial. There had been insufficient time to gather together the relevant family, social and medical history and such a disorder developed in adulthood and would have been difficult to detect in a young man. The fresh evidence satisfied the court that the defendant had been suffering from personality disorders at the time of the offending that constituted a psychopathic disorder. The commission of the very serious crime was substantially attributable to this disorder, as its impulsive nature and absence of any other rational explanation for it indicated. The defendant now needed hospital treatment and his disorder had not initially been identified in prison and could not be treated there. Prison was counter-productive to the treatment needed, which could only be provided in a hospital setting. The evidence suggested that the defendant’s condition could be treated and had already responded to treatment, although further treatment was required. Greater protection of the public would be provided if the cause of the offending was successfully addressed by treatment that gradually secured the defendant’s successful return to the community. The double lock provided by section 45A of the Mental Health Act 1983, whereby release had to be approved by the parole board and the First-tier Tribunal, was unavailable in the case of an offender who was under 21 at the time of conviction. Of the two judicial bodies, the tribunal would be the more appropriate body to assess the risk in the present case. The sentence of custody for life was quashed and substituted by a treatment order under section 37 of the 1983 Act (paras 36, 37, 42, 43, 44).
R v VowlesB, CA applied.
Per curiam. Very considerable caution should be exercised before a judge decides that a hospital order is the appropriate disposal, where a dangerous offender has committed a very violent crime, but is diagnosed as suffering from a personality disorder (para 41).
Philip Bown (assigned by the Registrar of Criminal Appeals) for the defendant.
Dominic Connolly (instructed by Crown Prosecution Service, Special Crime Division, Appeals Unit) for the Crown.