Text:ICLR [2015] WLR(D) 52

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

[2015] EWCA Crim 45^M; [2015] EWCA Civ 56^M; [2015] 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 [2014] 1 WLR 4209^B), 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.