R v Caress [2013] EWCA Crim 218, [2013] MHLO 27
"In the circumstances, there is no reason to believe that the diagnosis at the time of sentence was wrong or that sentence [a restricted hospital order] was passed on a wrong factual basis. If, as appears to be the case, the diagnosis has now changed that is a matter that should be dealt with by the Mental Health Tribunal, rather than by late appeal against sentence."
MHLR
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 2014 are available here: MHLR 2014.
Whether a hospital and restriction order should be set aside in light of further medical evidence - R v Kelly Marie Caress – [2014] MHLR 129
Points Arising: Doubt as to whether a restricted patient in fact had a particular mental disorder that was part of the diagnosis at the time of sentence was for the Tribunal; evidence based on a contemporaneous examination was of more value.
Facts and Outcome: KMC was sentenced to hospital and restriction orders (ss37/41 Mental Health Act 1983), the diagnosis being schizophrenia and a personality disorder; the Tribunal had upheld detention on various occasions, but when one psychiatrist instructed in Tribunal proceedings formed the view that she did not have schizophrenia and had not at the time of the offence (and questioned whether her personality disorder would have justified making the orders), she sought to appeal. Leave was refused as there was agreement as to the existence of a personality disorder, the sentence was not shown to be wrong when it was imposed, and any change was for the Tribunal. Those who supported the view that KMC did not have schizophrenia had not examined her at the time of the sentencing hearing.
Transcript
Neutral Citation Number: [2013] EWCA Crim 218
No: 201203107/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 14 February 2013
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE EDER
THE RECORDER OF NOTTINGHAM
(His Honour Judge Stokes QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
R E G I N A
v
KELLY MARIE CARESS
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1. THE RECORDER OF NOTTINGHAM: This is a renewed application for leave to appeal against sentence, for an extension of time in which to do so of approximately four and a half years and for a representation order following refusal by the single judge.
2. The applicant, who is now 23 years of age, pleaded guilty at Sheffield
Crown Court on 29 October 2007 to an offence of unlawful wounding contrary to
section 20 of the Offences Against the Person Act 1861. She had originally been
charged with wounding with intent. On 12 December 2007 she was sentenced by His
Honour Judge Moore to a hospital order under section 37 of the Mental Health Act
1983 with a restriction order under section 41 of the same Act. The applicant
is subject to those restrictions indefinitely.
3. At the time of sentence the judge had before him reports from two
consultant psychiatrists both of whom were satisfied that the applicant was
suffering from paranoid schizophrenia and a dissocial personality disorders.
One of those doctors gave evidence before the sentencing judge and he made the
order that we have described.
4. The applicant is presently detained at Calverton Hill Mental Health Unit
in Nottingham, and over the years to which she has been subject to this order
she has had more than one responsible clinician. She has also made, as she was
perfectly entitled to do, a number of applications to a Mental Health Review
Tribunal who would have power to direct her release if satisfied that she no
longer presented with symptoms or a condition which required her detention in
hospital.
5. As part and parcel of those applications she had the benefit of an
independent psychiatric report. That independent psychiatrist is Dr
Connell‑Jones who has prepared three reports in relation to this applicant: the
first in September 2008, for the purpose of an appearance before a mental health
tribunal; the second on 28 January 2011 and the more recent one on 22 February
2012 when she appeared before the First Tier Tribunal.
6. In 2008 Dr Connell‑Jones from a single interview with the applicant
formed the view that he could find no evidence of positive or negative symptoms
of schizophrenia. Having interviewed her, he said the form of thought was
rational and coherent. He concluded that at that time the applicant was not
suffering from schizophrenia.
7. In 2011 when he saw her again he was of the view that there was still no
evidence of paranoid schizophrenia and he recommend that she should be
transferred to a different medium secure hospital.
8. In his report of 22 February of last year he said that even if she had
paranoid schizophrenia when she was imprisoned pending her transfer to a
hospital:
"... she does not have it... now and that she would not have met the criteria
for hospital detention for personality disorder at the time of the index
offence."
9. We should point out that all the doctors who have had any contact with
the applicant over recent years remain of the view that she suffers from a
serious personality disorder.
In refusing leave the single judge said this:
"Neither Dr Connell‑Jones nor Dr Abdelmawla [who is now responsible for her
care] had the opportunity of observing the applicant at the time she was
sentenced or for some time thereafter. Dr Connell‑Jones had one interview with
her in August 2008 and Dr Abdelmawla did not assume responsibility for her care
until September 2010. By contrast, Dr Zaman was responsible for her care
immediately before and after she was sentenced and Dr Jamil was involved in her
care for a period of at least two years during which time he would have had an
opportunity to observe her and to talk to the staff who were caring for her on a
day to day basis.
In the circumstances, there is no reason to believe that the diagnosis at the
time of sentence was wrong or that sentence was passed on a wrong factual basis.
If, as appears to be the case, the diagnosis has now changed that is a matter
that should be dealt with by the Mental Health Tribunal, rather than by late
appeal against sentence."
10. With those sentiments this court entirely agrees. In our judgment, this
application is misconceived. The applicant's condition remains serious whether
or not she suffers now from paranoid schizophrenia and the appropriate tribunal
to deal with her future is not this court, which we emphasise is a court of
appeal not a court of review, but the Mental Health Review Tribunal. This
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