View source for Transcript of AG's ref (no 54 of 2011) (2011) EWCA Crim 2276

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No: 2011/3757/A6


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL




                                                        Thursday, 6 October 2011









                                  B e f o r e:




                               THE VICE PRESIDENT




                             (LORD JUSTICE HUGHES)




                              MR JUSTICE CRANSTON




                            MR JUSTICE HICKINBOTTOM




                    REFERENCE BY THE ATTORNEY GENERAL UNDER




                     S.36 OF THE CRIMINAL JUSTICE ACT 1988









                   ATTORNEY‑GENERAL'S REFERENCE NO 54 OF 2011














              Computer Aided Transcript of the Stenograph Notes of




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Mr E Brown QC appeared on behalf of the Attorney General


Mr J Ryder QC and Mr K Molloy appeared on behalf of the Offender








                                J U D G M E N T




                           (As Approved by the Court)









                                Crown copyright©



1.     THE VICE PRESIDENT:  Her Majesty's Solicitor General seeks leave to refer
under section 36 of the Criminal Justice Act 1988 a hospital order with
restriction order made at the Central Criminal Court upon a defendant who had
been convicted of manslaughter and possession of a firearm with intent to
endanger life.  The application raises not for the first time, but apparently
for the first time in this case, the complex relationship between custodial
sentences on the one hand and, on the other, orders under the Mental Health Act
1983 in relation to offenders who suffer from mental disorder.  We give leave.



2.     The defendant was born on 1st January 1992.  He was a little less than a
week past his 18th birthday on the night of 5th/6th January 2010 when this
killing occurred.  The defendant came to the United Kingdom originally from
Somalia where he was born.  He came first at the age of 11 to join his father
who was already here and at that stage lived with him.  However, both father and
son returned to Somalia when the defendant was 13 or thereabouts.  Approximately
two years after that, and thus when he was only about 15, he came back
unescorted to the United Kingdom and since then appears to have been on his own.
He may well formally have been in care after return but all the indications are
that since 2008 he has either been in custody or has been living on his own
resources and in particular following a life of crime as a supplier of class A
drugs, working, it would appear, for others, although also having at least one
subordinate ("runner") working for him.  He was removed from school almost
immediately after he returned to this country following an incident which led to
a sentence of 12 months detention and training order for violent disorder.
Since then he has had no education and has never been in any form of legitimate
employment.  He has a number of other convictions, chiefly for possession of
drugs, although also for escape from custody, for failing to comply with the
licence requirements of his detention and training order and for disorder.  He
appears to have been at all material times a reasonably heavy user of cannabis
himself, although his accounts of the extent of his use has not always been
consistent.


3.     On 5th and 6th January 2010 this defendant was sent by one of his drug
dealing superiors to seek out a rival dealer.  Arrangements were made for him to
be armed with what seems fairly clearly to have been a street gun, a shotgun.
He went in search of the opposition with an associate, one of whose roles was to
drive him there and away afterwards.  They successfully found their rivals, one
of whom was Mahamood Jama, the man who was killed.  He too had an associate with
him.  He was himself a violent man, it appears.  Certainly he was armed that
evening with a knife and there had been a dispute involving some violence
between him and some other parties.


4.     The defendant hid himself in a darkened building and emerged to confront
the opposition.  There was a verbal confrontation and in the course of it he
fired his gun vertically upwards into the air.  There then ensued a chase in
which the defendant was pursued by the deceased and his associates, eventually
into a block of flats where they grappled with each other.  During that fight
the gun was discharged again, killing Jama.  En route to the flats the defendant
had turned, certainly once and probably twice, pointed the gun at his pursuers
and threatened to shoot but had not fired.


5.     After the struggle in the block of flats culminating in the death of
Jama, the defendant ran to the car where his associate was waiting and made good
his escape.  The gun was never recovered, apparently having either been
destroyed or returned to whoever normally looked after it.  The result of that
is that it was impossible to say whether it was a single‑barrelled gun which the
defendant had reloaded or a double‑barrelled gun.  The defendant always claimed
that it was double‑barrelled and that may well, it seems to us, be the truth.
The relevance of that is that if it was always a double‑barrelled loaded gun it
is right to say that he could have discharged it earlier than in the course of
the struggle.


6.     Thereafter the defendant took what were plainly practised steps to avoid
capture, including the destruction of the SIM card in the mobile telephone that
he was using at the time, and remained at large until 27th May, nearly five
months later.  It is unnecessary to rehearse the investigation which was no
doubt extensive and which eventually proved that he had indeed been the gunman.



7.     He was tried on an indictment for murder.  He admitted in the face of the
evidence possession of the gun but his case was that he meant only to frighten
and that the killing was either lawful defence or accident in the course of the
struggle.  The jury was faced with evidence of what had happened in the flats
only for the defendant on the one hand and the criminal associate of the
deceased on the other.  The jury acquitted of murder but convicted of
manslaughter.  The basis of that could theoretically have been provocation but
it was much more likely to be unlawful act manslaughter and that sensibly was
the basis which the judge assumed when passing sentence.


8.     The defendant was not mentally ill at the time of this offence.  However,
whilst on remand he developed a paranoid psychosis and he was transferred to
Broadmoor Hospital by the Ministry of Justice in September 2010, that is about
four months after his arrest and nine months after the offence.  He was ill but
fit to be tried in the Crown Court and he was fit to give and did give evidence
in his own defence.  However, he remained ill and he needed to be in hospital
rather than in ordinary custody.


9.     There were some differences between the psychiatrists called on either
side in this case but upon the essentials of his condition they were in
agreement.  The likely diagnosis is paranoid schizophrenia.  It has involved at
different stages the hearing of voices, expressions of grandiosity, irrational
and delusional beliefs and thought disorder.  There are also clear signs in this
defendant, so the psychiatrists advise, of anti‑social trends properly labelled
in a person of his age "conduct disorder" rather than yet an established
personality disorder.  He is too young for that diagnosis yet to be made in the
terms of ordinary medical advice.


10.     The paranoid schizophrenia has, as is quite often the case, responded
reasonably well to medication, particularly in the secure and skilled
environment of Broadmoor.  The defendant needs to continue to take medication
for a prolonged period; the suggestion is at least 5 years.  He is conforming
with the medical regime, although there are some signs of him having wishes to
reduce the dose, which would not be advisable.  The psychiatrist from Broadmoor,
who was his treating superintendent, advised the judge that the defendant is
likely to need something like four further years of treatment in Broadmoor and
thereafter something like two years in the halfway house environment of a medium
secure unit.


11.     The judge determined that but for the medical condition he would have
imposed a sentence based upon the appropriate determinate term being 12 years.
However, the judge was perfectly satisfied, for extremely good reason, that the
defendant was dangerous within the meaning of Part 12 Chapter 5 of the Criminal
Justice Act 2003.  Accordingly, if he was to pass a conventional custodial
sentence the right form of it, given the defendant's age, would have been a
sentence of detention for public protection based upon a notional 12 year
determinate term, thus expressed as detention for public protection (that is to
say indefinitely) with a minimum term of six years, to which time in custody on
remand would count.


12.     However, Dr Church, the treating psychiatrist from Broadmoor,
recommended rather a hospital order under section 37 of the Mental Health Act
coupled with a restriction order under section 41.  Conversely, Dr Johns
(advising the Crown) suggested that in his view the appropriate sentence was a
custodial sentence, although he recognised that for the kind of time period that
Dr Church had mentioned such a sentence would be served in Broadmoor or
subsequently a medium secure unit.  That would be achieved, if that course were
taken, by the Secretary of State directing his transfer under the provisions of
section 47 of the Mental Health Act.  Accordingly, either way, the immediate
plan was necessarily for the treatment which he needs and which he is receiving
to continue.


13.     Faced with those two rival forms of advice, the judge in the end made a
hospital order with a restriction order.  It is abundantly clear from the
transcript of his very careful enquiries into this question that his primary
concern in making the order that he did was to achieve continuity of treatment
at Broadmoor.  He knew that if he made an order for detention for public
protection, whilst there would almost certainly follow a section 47 transfer
order, there would be a hiatus, during which the defendant's treatment in
Broadmoor would be interrupted because the existing basis for it would have been
removed by the passing of such a sentence.  How long it might be he did not
know.  The judge had, if we may say so extremely sensibly, suggested at an
earlier stage of the case that it would be wise for the prison authorities to
have available a transfer order in advance.  Apparently there had been such an
advance transfer order in existence at the time of verdict and if the conviction
had been of murder then of course the defendant would have been sentenced that
day to the mandatory sentence of life imprisonment and the transfer order for
which the Ministry had made arrangements could have taken effect immediately.
Had that happened, he could have continued at Broadmoor without any hiatus or
interruption.  Since, however, he was convicted of manslaughter the question of
his sentence had to be adjourned for consideration and nobody had brought an
advance transfer order to the adjourned hearing.  That was the reason why the
judge was persuaded in the end that in order to avoid the hiatus he ought to
make a hospital order rather than pass a sentence of detention for public
protection.


14.     This very experienced judge has considerable knowledge of the Parole
Board system.  He took a good deal of trouble to investigate of his own motion
whether there would be a significant difference between the two possible forms
of order as to the time that the defendant would be compulsorily detained.  He
concluded that the time for which he would compulsorily be detained would be
much the same under each of the two forms of order.  It is enough to say that he
may very well have been right about that.  Under a sentence of detention for
public protection with a minimum term of six years he would be compulsorily
detained for about a further five years (because he had served about a year on
remand).  After that he would be released as and when he was safe.  Dr Church's
prediction for his likely progress if a hospital order was made assumed
something like four years in Broadmoor and two years in a medium secure unit,
that is to say much the same sort of period.


15.     It was having made those investigations that the judge concluded that he
should make a hospital order because that would avoid a highly regrettable
disruption or hiatus in the treatment at Broadmoor which appeared to be being
successful.  He rightly concluded that such a disruption was in nobody's
interests.  It was not in the defendant's interests but much more importantly it
was not in the public's interest that his apparent recovery should be put in
jeopardy.


16.     We admire the efforts which the judge made to achieve both the treatment
of the defendant and his punishment and, crucially, safety for the public.  The
difficulty however is that the enquiries made into the time of likely compulsory
detention is only part of the story.  A different part of the story was not
addressed at all by either side and unsurprisingly therefore not by the judge.



17.     It is true that the detention for public protection regime and the
section 37/41 hospital order regime have features in common.  Under both regimes
discharge on release is discretionary and in the hands of the Secretary of
State, that is to say the Ministry of Justice.  In both cases regard is had in
making the discretionary decision whether or not to release to danger.  In
neither case is there any absolute right to release.  Secondly, release under
both regimes is conditional and the defendant is subject to recall.  That said,
there is an absolutely crucial difference between the two forms of regime.
Under an order for detention for public protection release is dependent upon the
responsible authority being satisfied that the defendant is no longer a danger
to the public for any reason and principally not at risk of relapsing into
dangerous crime.  Under the hospital order regime release is dependent upon the
responsible authority being satisfied that the defendant no longer presents any
danger which arises from his medical condition.  Similarly, and critically,
release under the detention for public protection regime is on licence and the
licence can be revoked if the defendant shows that he remains a danger to the
public from crime.  It is possible and indeed inevitable that the licence
conditions will be designed, among other things, to prevent association with
dangerous criminals.  Under the hospital order regime, recall is available but
only if the defendant's medical condition relapses.  Simple crime does not
trigger a recall under the hospital order regime.


18.     We need not set out the law relating to that because it is common
ground.  The clearest expression of it, among a number of cases, is to be found
in R v Drew [2003] 1 WLR 1213, [2003] UKHL 25 in the speech of Lord Bingham at
paragraph 21.


19.     In this case we hope of course that the defendant will both recover from
his illness and reform his hitherto criminal way of life.  But his discharge
under the present order will be governed by recovery from illness but not reform
and his liability to recall will be triggered by medical relapse but not by
criminal relapse.  There exists, given the lifestyle that he was living at the
time of this offence, the plainest possible risk, although we hope it does not
eventuate, that he may resume a criminal lifestyle.  It is essential that there
is available to the authorities the power to recall him if that were to happen.
We hope it will not, but the power simply has to be there.


20.     Mr Ryder QC on his behalf, to whom we are extremely indebted for his
careful submissions, advances a number of reasons why nonetheless the order that
the judge made should be maintained.  First, he contends that the best hope for
the future and the greatest public interest lies in this defendant's recovery
and proper treatment.  We agree.  But he is going to have the same treatment
under either form of order.  Secondly, says Mr Ryder, if a detention for public
protection order is made their exists the risk that he may find himself in
conventional custody and that the influences that he is likely there to meet may
foster the incipient conduct disorder or anti‑social personality traits which
would be very much against the public interest.  We agree that those risks
present a possible scenario.  We propose to do what we can to avoid any
possibility that there would be an immediate hiatus during which he has to go
into conventional custody.  If it is right that he can expect something like six
years in medical care, then if at the end of that time he is safe he ought to be
released.  But in the last resort if there exists a tension between the risk
which Mr Ryder has identified on the one hand and a complete absence of control
on licence on the other, we fear that the risk has to be taken in order to
achieve the licence control.  Thirdly, Mr Ryder draws attention to the evidence
given by Dr Church before the judge to the effect that in his experience the
intensity of management which is available to psychiatrists at the time of
conditional release and planned transfer to the community under the rubric of a
hospital order is generally greater than that available to the Probation Service
and the National Offender Management Scheme under indeterminate sentences.  We
do not know but it is always possible that that is a realistic assessment.  The
psychiatric authorities have a good deal fewer people to deal with for one
thing.  But whilst that may be true, the intensity of supervision is no
substitute for the test for release and the test for recall to which the
supervision has to be directed.  Lastly, Mr Ryder pointed out that were the
defendant to be released and to commit a fresh offence it is at least likely
that there would be sufficient possibility in the minds of the supervising
psychiatric team that there had been a mental health relapse for there to be a
recall, if only for investigation, in any event.  That may or may not be so, but
they would not be able to keep him unless there had been a medical relapse.


21.     We conclude that the decision made in this case in the most careful
terms by this very experienced judge simply left out, because nobody explained
it to him, the vital consideration which we have endeavoured to set out.  Once
one applies one's mind to that consideration there is only one possible answer.



22.     We ought to add this.  The differences between the two forms of order
were one reason for the insertion into the Mental Health Act of section 45A.
That section gives the court the power to pass a sentence of imprisonment and
rather than wait for the Ministry to make a transfer order to hospital, itself
to make a direction for hospital treatment together with a limitation direction
which is the equivalent of a restriction order.  That power, if available, would
have met this case perfectly.  Under it, a defendant is subject to imprisonment
but he goes immediately to hospital which is where he needs to be and he remains
there for as long as his medical condition requires it.  However, the section
enables this new form of order to be made only where the sentence is one of
imprisonment.  For an offender under the age of 21 imprisonment is not
available.  We are bound to say that we have not discerned any reasoned or
logical distinction between offenders of 18, 19 and 20 and those of 21 and above
which would suggest a deliberate decision to exclude the younger patients from
its terms.  It may be that the reason why the section is couched in terms of
imprisonment is that when it was drafted it was anticipated that not long in the
future imprisonment would be extended to all from the age of 18 onwards, but
that, as everybody knows, has not happened.  We would respectfully suggest that
those who have the supervision of this legislation should at the very least
consider whether there is any reason at all why patients of 18, 19 or 20 should
be excluded from the public protection which an order of this kind can give.


23.     We agree with the judge that interruption to the current period of
treatment at Broadmoor is highly undesirable for all the reasons which we have
tried to explain.  We propose for that reason to adjourn this hearing now until
Thursday 20th October, when we will return to it.  We express the hope that by
then it will be possible to tell us that arrangements are in place for this man
to be transferred immediately under section 47 to Broadmoor, so that if, as we
anticipate, the sentence is converted into one of detention for public
protection he will go straight back from this court to Broadmoor.  We do not of
course control the decision about a transfer order.  We can do no more than
hope, but we make it clear that the combined opinion of both psychiatrists is
that without doubt it is essential that there is no interruption, however short,
in this man's treatment at Broadmoor.


24.     Lastly, the Solicitor General takes a second point that the notional
determinate term of 12 years was itself unduly lenient.  It ought, he submits,
to have been 15 years.  There is no basis for saying that the difference between
those two figures creates a sentence which comes anywhere near the test of undue
leniency applied on a reference by the Attorney General.  There is no gross
error of any kind and in any event under an order for detention for public
protection the notional determinate term governs only eligibility for
consideration of release; it does not give an entitlement to release.  The judge
was perfectly entitled to take the view that at the age that this man was 12
years was the appropriate notional determinate term.  We are unimpressed
accordingly by the second ground of the application.


25.     In those circumstances, we make no order at this stage other than to
adjourn the case to be relisted before this court please for five minutes on
Thursday 20th October.  There is no occasion for leading counsel to attend
unless they want to.  Indeed, if there is in place an assurance of the kind
which we would like to hope that there might be, there is no reason for anybody
to attend if we have it in writing.  Otherwise somebody from the Crown must come
please to tell us what the position is.


26.     MR BROWN:  My Lord, the information I am in possession of now tells me
at least that my Lord will not need to wait until 20th October.  Indeed later
today it would be in place.  I do not know whether either way‑‑


27.     THE VICE PRESIDENT:  At the moment we will say that we will adjourn it
until Thursday 20th unless later today we are told that we need not and again
the same applies later today, if you are in a position to help at that stage or
if somebody behind you is, there is no need please for leading counsel to wait.
Thank you very much both of you for your help.


Later:


28.     MR BROWN:  My Lord, in fact all was in place.  Nobody, as it were, in
charge of these things should be criticised.  It is my fault for not knowing
that was the position.  They are well aware of the case, but I am told that the
transfer order under section 47 needs something to bite upon.  It needs to be
transferred from something and what will happen, as I understand it, is that as
soon as sentence is passed here your clerk will draw up the order, that can be
faxed ultimately to the Mental Health Unit at the Ministry of Justice, the
paperwork in respect of section 47 has already been completed, it is in place,
they need to be satisfied that they are asking for a transfer to be made from
something and the Secretary of State has agreed and indeed the medical reports
are here now with us and so everything is in place but it needs something to
bite upon.  We would ask the court to pass sentence with the full expectation
today that he can be transferred and taken to Broadmoor and those waiting to
transport him are downstairs.


29.     THE VICE PRESIDENT:  So he will go straight back to Broadmoor.


30.     MR BROWN:  That is the intention.


31.     THE VICE PRESIDENT:  What is the formality, Mr Brown?  I will ask Mr
Ryder in a moment, but there is time in custody which has to be specified, does
it not?  Do you have the figure?  It is about a year.  We know the date of his
arrest which was 27th May and sentence was passed on 15th June the following
year.  ... Somebody has done the arithmetic.  Shall we say 382 days with the
customary caveat that if it should turn out to be different it can be dealt with
administratively.


32.     Mr Ryder, subject to the point of principle which we have already
decided, do you agree that this is the right course now.


33.     MR RYDER:  My Lord, yes, certainly.


34.     THE VICE PRESIDENT:  Thank you very much indeed.


35.     For the reasons which we set out at a little length earlier this
morning, we quash the sentence of hospital order and section 41 order, we
substitute for it on each count concurrent a sentence of detention for public
protection with a minimum term of six years less 382 days already served.  If
further calculation should show that that figure is wrong by a few days the
correction should be made administratively.  Is that sufficient, Mr Brown.


36.     MR BROWN:  Yes.


37.     THE VICE PRESIDENT:  Thank you all very much.
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