View source for Transcript of R v Odiowei (2013) EWCA Crim 2253, (2013) MHLO 131

<pre>Neutral Citation Number: [2013] EWCA Crim 2253


No: 201300800 A6


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL




                                                     Tuesday, 19th November 2013




                                  B e f o r e:




                               LORD JUSTICE ELIAS




                                MR JUSTICE KING









                              MR JUSTICE HOLROYDE









                                  R E G I N A




                                       v




                              JUSTIN OBUZA ODIOWEI














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Miss J Mackie appeared on behalf of the Applicant


Mr R Vardon appeared on behalf of the Crown



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</pre>


1.     LORD JUSTICE ELIAS:  On 30th April 2001, at the Manchester Crown Court
before Henriques J, the applicant Mr Odiowei was sentenced to custody for life
for an offence of wounding with intent to cause grievous bodily harm contrary to
section 18 of the Offences Against the Person Act 1861.  It was a bizarre
offence when he rounded upon a friend of his and attacked him with a knife.  He
now seeks to adduce fresh evidence and leave to appeal against sentence and an
extension of time, it being now over 11 years since he was sentenced.  The basis
of his appeal is he says that he ought to have been sentenced to a hospital
order with restrictions pursuant to sections 37 and 41 of the Mental Health Act
1983.  The evidence before the judge at the time was such that the conditions
for imposing any such order were not satisfied and therefore the judge could not
dispose of the matter in that way.


2.     There are now two reports from a Dr Abbot, who became the responsible
medical officer for Mr Odiowei when he was transferred to Ashworth Hospital
shortly after he was sentenced, and also from a Dr Higgins, who became the
responsible clinician at Ashworth at a later date.  They have been to some
extent critical of the conclusions of two psychiatrists who examined Mr Odiowei
at the relevant time, a Dr McInerney and a Dr Mullin.  Dr McInerney produced a
report which was available to the sentencing judge; it appears as though Dr
Mullin did not.


3.     We have no response from either of those two doctors to the assertions
now made by both Dr Abbot and Dr Higgins that the applicant would have been
suffering from a relevant mental illness at the appropriate time and that the
conditions for making a section 37/section 41 order were accordingly satisfied.



4.     This appeal is advanced after very considerable delay.  We have to say we
are not entirely satisfied with the explanation as to why it has taken so long
for the matter to come before us, but we conclude nonetheless that we should
grant permission in the light of the material we have seen, notwithstanding that
there have been these considerable delays.  If in fact this case ought to have
been disposed of by an appropriate hospital order, then it seems to us that is
what should now happen.  It is not in the public interest that the applicant
should be subject to the prison regime if that was never the right sentence for
him, and it could impose unfair restrictions upon him. For example, he may have
to comply with certain courses which he has been unable to take because of his
mental state before release by the Parole Board.  So if in fact he ought to have
been subject to a hospital order, we do not think that the delay in bringing
this matter to the court should adversely affect him now.  It is not suggested
either that he was personally responsible for these delays.


5.     The evidence we have seen is prima facie powerful evidence in support of
the hospital order. As we say, we admit it and the prosecution does not seek to
contest that. But we think the court would be assisted, and no doubt courtesy to
the two original doctors requires also, if the two original doctors have an
opportunity to comment on these later reports. This court will be a better
position to assess whether or not the ground of appeal can be sustained in the
light of all of the material.


6.     So we adjourn the matter for a period of some six weeks.  It may be of
course that the reports will not have been obtained by then, but at least if we
could have a report back to the court by counsel as to where we stand,and as to
whether the original doctors have been identified and located and have been sent
the material. The appeal should be brought back for determination as soon as it
possibly can.


7.     MR VARDON:  Is it to be mentioned in six weeks formally?


8.     LORD JUSTICE ELIAS:  It need not be formally mentioned, but I think the
Court of Appeal Office needs to be kept in touch.


9.     It does not have to be the same constitution, it almost certainly will
not be, that hears the appeal.


10.     MISS MACKIE:  I am grateful.


11.     LORD JUSTICE ELIAS:  The only other point is, I am sure you will
appreciate, it is not strictly necessary to have both doctors here to give oral
evidence.  We need the report of the two doctors, but one suffices for the
purpose of satisfying the condition of this court making an order.  If you wish
to have two that is fine, but for the moment I have to say, and unless and until
one sees perhaps what these doctors say in response, you may feel that one is
enough.


12.     MISS MACKIE:  Thank you.


13.     LORD JUSTICE ELIAS:  I leave you to decide which.


14.     MISS MACKIE:  I am grateful.


15.     LORD JUSTICE ELIAS:  I suppose the one most appropriate is the one who
can best deal with the question of what his state would have been at the
relevant time.


16.     MISS MACKIE:  Indeed, that I think would be Dr Abbot.


17.     LORD JUSTICE ELIAS:  We were thinking the one currently in charge, but
that was going through my mind when I put it to you.  It may be Dr Abbot would
be in a better position.


18.     MISS MACKIE:  I will give consideration to that, my Lord.


19.     LORD JUSTICE ELIAS:  Anything else?


20.     MR VARDON:  No, thank you.


21.     My Lord, I am sorry, I assume the Crown now have that duty to obtain
that report.


22.     LORD JUSTICE ELIAS:  Yes please.


23.     MR VARDON:  It had not been totally overlooked, it was really a
conscious decision by those in York that it was not appropriate when it was
chased up.


24.     LORD JUSTICE ELIAS:  It is perhaps unfortunate it was not alerted, it is
not a criticism of them, but in retrospect somebody needs to do it and it seems
to all of us that better the Crown than the defence.


25.     MR VARDON:  Certainly.


26.     LORD JUSTICE ELIAS:  For obvious reasons.


27.     Thank you very much indeed.  Could you please give our apologies to the
two doctors.  I understand it is very frustrating from their point of view.
Perhaps they would understand if they had given a report some years ago which
was being criticised, albeit factually and respectfully ‑‑


28.     MISS MACKIE:  I am sure they will understand.


29.     LORD JUSTICE ELIAS:  ‑‑ they might like to have the opportunity to
respond to it.