R v LV; R (LV) v SSJ  EWCA Crim 45,  EWCA Civ 56
Sentencing guidance; MHT/PB delay "There are before the court: (1) Sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008. Each specified a minimum term. In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under MHA 1983 s37 as amended with a restriction under s41 of the same Act. The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under s47. (2) Sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody." In relation to the criminal aspect: in cases where medical evidence suggests mental disorder, the offending is partly or wholly attributable to that disorder, treatment is available and a hospital order may be appropriate, the court should consider (and, if appropriate, make) a s45A order before considering making a hospital order.
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2016 are available here: MHLR 2016.
Whether indeterminate sentences of imprisonment should be replaced by orders under ss37/41 Mental Health Act 1983 in light of updated medical evidence; whether Art 5(4) ECHR required the release of a person serving an indeterminate sentence and transferred to hospital to be controlled by 1 body; whether delays in the hearing of a matter by the Parole Board breached Art 5(4) - R v Lucinda Vowles, Carl Barnes, Danielle Victoria Coleman, Justin Obuza Odiowei, David Stuart Irving, Gordon McDougall; R (Lucinda Vowles) v Secretary of State for Justice and Parole Board –  MHLR 66
Points Arising: (i) A hospital order was designed to meet the needs of the offender in the expectation of avoiding further criminal acts.
(ii) There was no presumption that a hospital order would be made when the medical preconditions were made out: it had also to be appropriate, which involved assessing (a) the extent of the need for treatment, (b) the extent of the role of the disorder in the offending (albeit that there was no pre-requisite that the offending be linked to the disorder), (c) the extent to which punishment was required, (d) the protection of the public, including through the regime available on release, bearing in mind such matters as risk not arising from mental disorder.
(iii) Although an interim hospital order would enable a much better assessment, such orders increased the pressure on the limited number of secure beds, involved the costs of bringing cases back to court, and prevented closure for the victim, and so should be discouraged.
(iv) Those with a personality disorder were less likely to be suitable for a hospital disposal unless they also had a mental illness or brain damage, since (a) a mental illness was more likely to have a direct bearing on culpability and more likely to benefit from treatment, (b) there was the risk of a patient being untreatable but un-releasable from hospital and (c) treatment for personality disorder was available in prison.
(v) Whilst prisoners with a psychotic illness can be transferred to hospital under, there are the risks of relapse on their return to prison and the supervision on release is likely to be less robust than that available for those conditionally discharged under the mental health legislation.
(vi) The statutory modification to the hybrid order, which made it more widely available, meant that it was to be preferred (though was limited to those 21 or over at the time of conviction); only if it was not appropriate should a hospital order be considered.
Facts and Outcome: (i) Vowles. A sentence of imprisonment for public protection was upheld in relation to an aggravated arson committed by a woman diagnosed with a personality disorder who had several previous admissions to hospital and had just discharged herself before the offence; she had been transferred to hospital from prison. The Court relied on the nature of her mental disorder, her culpability, the need for punishment and the risk to the public. (There was a separate challenge to delays in Parole Board hearings: but it was determined that there was no breach of Art 5(4) ECHR.)
(ii) Barnes. A sentence of imprisonment for public protection was upheld in relation to a robbery committed to fund heroin use by a man diagnosed with depression who had several previous convictions; he had been transferred to hospital from prison, found to have a learning disability and a dissocial personality disorder. The Court relied in particular on the role of heroin addiction in the offending, which made a hospital disposal inappropriate.
(iii) Coleman. A sentence of imprisonment for public protection was quashed, and orders made under ss37 and 41 of the 1983 Act, on the basis of fresh evidence that she had schizophrenia at the time of the index offence of attempted robbery (which had not been diagnosed at the time of sentence, the evidence then suggesting just a personality disorder); she had been transferred to hospital, and the evidence was that her condition could not be managed in prison and that any release into the community would be better managed under a conditional discharge than parole.
(iv) Odiowei. A sentence of custody for life was quashed and replaced by orders made under ss37/41 in relation to an offence of wounding with intent by a man who had been transferred from prison to hospital and subsequently diagnosed to have schizophrenia, which would have been present at the time of the offence. The Court noted that the offence was caused by the mental illness, that it was treatable, and that the public would be better protected by the use of the 1983 Act.
(v) Irving. A sentence of life imprisonment was upheld in relation to a man with a learning disability who had committed several arsons and made threats to kill. He had been transferred to hospital. The Court noted that although the evidence indicated that the extent of the learning disability had been underestimated at the time of sentence and the hospital placement was proper, there was no clear causal link between the disability and the offending.
(vi) McDougall. A sentence of imprisonment for public protection was quashed, and orders made under ss37 and 41 of the 1983 Act, in relation to an offence of wounding with intent. Evidence from the time of sentence suggested a possibly psychotic illness as well as a personality disorder, which was now confirmed after a transfer to hospital. The Court noted a strong causal connection between the illness and the offence, that it was treatable, and that there would be better public protection from the use of the 1983 Act.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CRIME — Sentencing — Indeterminate sentences — Psychiatric evidence before sentencing court for consideration of hospital order — Judge not making such order but defendant transferred to hospital from prison under direction of Secretary of State — Guidance for sentencing judges — Mental Health Act 1983, ss 37, 38, 41, 47
PAROLE BOARD — Decision — Delay — Claimant’s application to Board seeking release delayed, and subsequently refused — Convention right to timely hearing of application — Whether such right violated — Human Rights Act 1998, Sch 1, Pt 1, art 5(4)
Regina v Vowles (Lucinda)
Regina v Barnes (Carl)
Regina v Coleman (Danielle)
Regina v Odiowei (Justin)
Regina v Irving (David)
Regina v McDougall (Gordon)
Regina (Vowles) v Secretary of State for Justice and another
!; !;  WLR (D) 52
CA: Lord Thomas of Cwmgiedd CJ, Macur LJ, Globe J: 5 February 2015
The Court of Appeal, Criminal Division, gave guidance on the approach to be adopted by a sentencing judge who had to consider passing an indeterminate sentence (either imprisonment for public protection or a life sentence) where there was a psychiatric issue which gave rise to the consideration of a hospital order under the Mental Health Act 1983.
The Court of Appeal, Criminal Division, gave such guidance when dismissing an appeal by Lucinda Jayne Vowles against a sentence of imprisonment for public protection (IPP) with a minimum term of 18 months imposed on 14 May 2008 by Judge Rogers at Mold Crown Court following her plea of guilty to an offence of arson being reckless as to whether the life of another would be endangered; when dismissing an appeal by Carl Barnes against a sentence of IPP, with a minimum term of 28 months, imposed on 11 June 2007 by Judge Byrne at Preston Crown Court on his plea of guilty to robbery and obtaining property by deception; when allowing the appeal of Danielle Victoria Coleman against a sentence of IPP with a minimum term of two years imposed on 7 October 2005 by Judge Fox QC at Teesside Crown Court on her conviction of attempted robbery and assault with intent to resist arrest—a hospital order was substituted; when allowing the appeal of Justin Obuza Odiowei against a sentence of custody for life with a minimum term of four years imposed on 30 April 2001 by Henriques J at Manchester Crown Court on his conviction of wounding with intent—a hospital and restriction order was substituted; when dismissing an appeal by David Stuart Irving against a sentence of life imprisonment with a minimum term of eight years imposed on 23 May 1997 by Judge Burke QC at Minshull Street Crown Court, Manchester, on his conviction of seven offences of arson, one of criminal damage and one of threats to kill; and when allowing an appeal by Gordon McDougall against a sentence of IPP with a minimum term of two years and 50 days imposed on 20 December 2007 by Judge Forrester at Carlisle Crown Court, on his plea of guilty to wounding with intent—a hospital order with restrictions was substituted.
LORD THOMAS OF CWMGIEDD CJ said, in the reserved judgment of the court, that there were six cases before the Court of Appeal, Criminal Division, where indeterminate sentences had been passed between 1997 and 2008. Each specified a minimum term. In each case, although there was psychiatric evidence before the sentencing court with a view to the judge making a hospital order under section 37 of the Mental Health Act 1983, as amended, with a restriction under section 41 of the same Act, the sentencing judge did not make such an order, but each defendant was subsequently transferred to hospital under a transfer direction made by the Secretary of State under section 47 of the 1983 Act. Their Lordships gave guidance on the approach to be adopted in such cases. Where the conditions in section 37(2)(a) were met, a judge had to consider: (1) the extent to which the offender needed treatment for the mental disorder from which the offender suffered, (2) the extent to which the offending was attributable to the mental disorder, (3) the extent to which punishment was required and (4) the protection of the public, including the regime for deciding release and the regime after release. There had always to be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set those out. A judge must pay very careful attention to the different effect in each case of the conditions applicable to and after release. That consideration might be one matter leading to the imposition of a hospital order under sections 37 and 41. The fact that two psychiatrists were of the opinion that a hospital order with restrictions under sections 37 and 41 was the right disposal was therefore never a reason on its own to make such an order. The judge had first to consider all the relevant circumstances, including the four issues set out above, and then consider the alternatives in the following order. A court should, in a case where (1) the evidence of medical practitioners suggested that the offender was suffering from a mental disorder, (2) that the offending was wholly or in significant part attributable to that disorder, (3) treatment was available, and it considered, in the light of all the circumstances referred to, that a hospital order (with or without a restriction) might be an appropriate way of dealing with the case, consider the matters thus: (i) as the terms of section 45A (1) of the 1983 Act required, before a hospital order was made under sections 37 and 41, whether or not with a restriction order, a judge should consider whether the mental disorder could appropriately be dealt with by a hospital and limitation direction under section 45A; ( ii) if it could, then the judge should make such a direction under section 45A(1); ( iii) if such a direction was not appropriate the court had then to consider, before going further, whether, if the medical evidence satisfied the condition in section 37(2)(a) (that the mental disorder was such that it would be appropriate for the offender to be detained in a hospital and treatment was available), the conditions set out in section 37(2)(b) would make that the most suitable method of disposal. It was essential that a judge gave detailed consideration to all the factors encompassed within section 37(2)(b). For example, in a case where the court was considering a life sentence under the Criminal Justice Act 2003 as amended in 2012 (following the guidance given in Attorney General's Reference (No 27 of 2013), R v Burinskas!), if (a) the mental disorder was treatable, (b) once treated there was no evidence he would be in any way dangerous, and (c) the offending was entirely due to that mental disorder, a hospital order under sections 37 and 41 was likely to be the correct disposal; (iv) those were the general circumstances to which a court should have regard but, as the language of section 37(2)(b) made clear, the court had also to have regard to the question of whether other methods of dealing with him were available. That included consideration of whether the powers under section 47 for transfer to prison for treatment would, taking into account all the other circumstances, be appropriate. If the court, after considering the matters set out in section 37(2)(b), considered that a hospital order was the most suitable method, then it would generally be desirable to make such an order without consideration of an interim order under section 38 unless there was very clear evidence that such an order was necessary. Although the course of the appeals might suggest that making an interim hospital order might be an appropriate step to take, a judge should pause long and hard before making such an interim order. Although, as was the evidence before their Lordships, there were now a number of private providers to the NHS who had facilities at which offenders who were the subject of interim orders could be held, the making of such an order had the consequence that as regarded the victim of the crime there was no closure until the final order was made, there were significant costs to the general administration of justice in bringing a case back to court and there was acute pressure on the availability of secure beds.
In the Court of Appeal, Civil Division, the claimant, Lucinda Vowles, appealed against the decision of Irwin J in judicial review proceedings brought by the claimant against the Secretary of State for Justice and the Parole Board founded on delays in the hearing of her application to the Parole Board for release from custody rendering the continuing sentence unlawful for violating her rights vouchsafed by article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The delay was regrettable but had been necessary on the facts, in order for the Parole Board to make its decision. There was no breach of article 5(4) of the Convention. The appeal was dismissed.
Appearances: Florence Krause (assigned by the Registrar of Criminal Appeals) for Vowles and Barnes; Stephen Rich (assigned by the Registrar of Criminal Appeals) for Coleman; Jeannie Mackie (assigned by the Registrar of Criminal Appeals) for Odiowei; Jonathan Duffy (assigned by the Registrar of Criminal Appeals) for Irving; Brian Hegarty (assigned by the Registrar of Criminal Appeals) for McDougall; Duncan Atkinson (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.Hugh Southey QC (instructed by Campbell Law Solicitors) for Vowles on the judicial review; Martin Chamberlain QC and James Cornwell (instructed by Treasury Solicitor) for the Secretary of State and the Parole Board.
Reported by: Clare Barsby, Barrister and Matthew Brotherton, Barrister.
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