The court considered appeals by prisoners subject to indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) passed between 1997 and 2008, where there had been medical evidence before the court suggesting the possibility of a hospital order, and ‘a major effect of the decision of a judge to impose an indeterminate sentence of imprisonment as opposed to making a hospital and restriction order under s.37/41 of the MHA is that the decision for release is made by the Parole Board, whereas if a hospital and restriction order had been made under s.37/41, the decision would be made, if the person is detained in England, by the First-tier Tribunal (Health, Education and Social Care Chamber (Mental Health) (FTT) or, if the person is detained in Wales, by the Mental Health Review Tribunal for Wales.’
Lord Thomas of Cwmgiedd CJ provided guidance on the approach to be adopted: ‘It is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions. A judge must therefore consider, where the conditions in section 37(2)(a) are met, what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard to include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required, and (4) the protection of the public including the regime for deciding release and the regime after release. There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out.
. . a judge when sentencing must now pay very careful attention to the different effect in each case of the conditions applicable to and after release. . . This consideration may be one matter leading to the imposition of a hospital order under section 37/41.
. . The fact that two psychiatrists are of the opinion that a hospital order with restrictions under section 37/41 is the right disposal is therefore never a reason on its own to make such an order. The judge must first consider all the relevant circumstances, including the four issues we have set out in the preceding paragraphs and then consider the alternatives in the order in which we set them out in the next paragraph.
. . Therefore, in the light of the arguments addressed to us and the matters to which we have referred, a court should, in a case where (1) the evidence of medical practitioners suggests that the offender is suffering from a mental disorder, [and] (2) that the offending is wholly or in significant part attributable to that disorder, (3) treatment is available, and it considers in the light of all the circumstances to which we have referred, that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, consider the matters in the following order: (i) As the terms of section 45A(1) of the MHA require, before a hospital order is made under section 37/41, whether or not with a restriction order, a judge should consider whether the mental disorder can appropriately be dealt with by a hospital and limitation direction under section 45A. (ii) If it can, then the judge should make such a direction under section 45A(1). … (iii) If such a direction is not appropriate the court must then consider, before going further, whether, if the medical evidence satisfies the condition in section 37(2)(a) (that the mental disorder is such that it would be appropriate for the offender to be detained in a hospital and treatment is available), the conditions set out in section 37(2)(b) would make that the most suitable method of disposal. It is essential that a judge gives detailed consideration to all the factors encompassed within section 37(2)(b).’
Judges:
Lord Thomas of Cwmgiedd, CJ, Macur LJ, Globe
Citations:
[2015] EWCA Crim 45, [2015] 1 WLR 5131, [2015] Crim LR 542, [2015] 2 Cr App R (S) 6, [2015] WLR(D) 52
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Nelson v Regina CACD 2-Dec-2020
‘This appeal against sentence demonstrates some of the practical differences between, and advantages and disadvantages of, a ‘hybrid order’ under section 45A of the Mental Health Act 1983 (‘MHA’) combining imprisonment with a hospital direction and . .
Cited – Edwards, Regina v CACD 27-Mar-2018
The court considered issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment.
As to the release provisions relating to those subject to an order under ss 37/41 and those made subject to a s 45A order, . .
Cited – Lall, Regina v CACD 19-Mar-2021
Choice of mental Health Sentencing Options
On conviction of manslaughter by reason of diminished responsibility, the judge imposed a hospital order and a restriction, without limit of time, under sections 37 and 41 of the Mental Health Act 1983. The AG appealed it as too lenient, suggesting . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 01 October 2022; Ref: scu.542269