View source for Transcript of R v Caress (2013) EWCA Crim 218, (2013) MHLO 27

<pre>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














              Computer Aided Transcript of the Stenograph Notes of




                         WordWave International Limited




                        A Merrill Communications Company




                       165 Fleet Street  London EC4A 2DY




                  Tel No: 020 7404 1400 Fax No: 020 7404 1424




                   (Official Shorthand Writers to the Court)









                            Non‑Counsel Application









                                J U D G M E N T




                                 (As Approved)









                                Crown copyright©

</pre>

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
application is refused.