Attorney-General's Reference No 54 of 2011
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 06 October 2011 |
| Neutral Citation | [2011] EWCA Crim 2276 |
| Docket Number | No: 2011/3757/A6 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 October 2011 |
Reference by the Attorney General Under S.36 of the Criminal Justice Act 1988
[2011] EWCA Crim 2276
The Vice President
(Lord Justice Hughes)
Mr Justice Cranston
Mr Justice Hickinbottom
No: 2011/3757/A6
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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...
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