Cameron John Cleland v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] EWCA Crim 906 |
| Date | 16 July 2020 |
| Docket Number | Case No: 2020 00351 A3,2020/00351/A3 |
| Court | Court of Appeal (Criminal Division) |
[2020] EWCA Crim 906
Lord Justice Holroyde
Mr Justice Nicklin
and
Mr Justice Murray
Case No: 2020 00351 A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRADFORD
HH Judge Durham Hall QC
T2013 7165
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ed Fitzgerald QC and Ms Pippa Woodrow (instructed by Scott-Moncrieff & Associates Ltd) for the Appellant
Mr Louis Mably QC (instructed by Appeals and Review Unit, Crown Prosecution Service) for the Respondent
Hearing date: 9 July 2020
Approved Judgment
On 13 August 2013, in the Crown Court at Bradford, this appellant pleaded guilty to an offence of attempted murder. He was sentenced by HHJ Durham Hall QC to detention for life. The minimum term specified by the judge pursuant to section 82A of Powers of Criminal Courts (Sentencing) Act 2000 was 7 years. The appellant was also made subject to a restraining order of indefinite duration.
The appellant appealed against that sentence. His appeal was dismissed by the full court on 28 February 2014. A subsequent application for leave to appeal to the Supreme Court was refused on 8 July 2014.
The case now comes before this court upon a referral by the Criminal Cases Review Commission. By section 9(3) of the Criminal Appeal Act 1995, such a referral is treated for all purposes as an appeal against sentence. Leave is sought to admit fresh evidence that at the time of the offence the appellant suffered Autism Spectrum Disorder (“ASD”). On the basis of that evidence it is submitted that the appropriate sentence was, and is, a hospital order pursuant to section 37 of the Mental Health Act 1983 coupled with a restriction order pursuant to section 41 of that Act. For convenience, we shall use the shorthand “s37/s41 order” to refer to that combination of orders.
The facts:
The appellant was aged 16 when he committed the offence. His victim was aged just 12. In 2012 they lived near one another, attended the same school and would occasionally talk to one another. The appellant became infatuated with his victim. He sent many text messages expressing his interest in her. She indicated that she had no interest in him. Between about September 2012 and March 2013 there was no communication between them, and the victim thought the matter had ended.
Unbeknown to her, the appellant's infatuation had continued. He regularly used an on-line chat forum to contact Childline, saying that he really liked a girl aged 11 or 12 and was depressed because she had a boyfriend. In January 2013 he indicated to Childline that he wanted to rape her, because her life was too good and he wanted to balance things out. Later investigation was to show that he had used his computer to access material about rape and murder.
On 6 February 2013 the appellant was spoken to by the police. He claimed he had only said such things to gain attention. No further action was taken.
In March 2013 the appellant started sending further text messages to his victim. She refused his requests that they meet. The appellant repeatedly threatened to kill himself. Eventually she was pressurised into agreeing to meet him in a quiet lane near their respective homes on 21 April 2013.
The appellant arrived for that meeting wearing latex gloves. He pounced on his victim, knocked her to the ground and produced a penknife. She tried to fight back. The appellant said he was going to have to kill her. He threatened to rape her. He began stabbing at her throat and chest, but the knife appears to have been blunt and he caused only superficial wounds. He then tried instead to strangle her. By great good fortune a dog walker came on the scene. She saw the appellant with his hands around his victim's throat. Realising that he had been seen, the appellant walked away. The victim was taken home and then to hospital. Fortunately, her physical injuries were minor.
The appellant was arrested later that day. He was in possession of the knife and bloodstained gloves. He admitted that he had tried to kill his victim. When interviewed under caution he made no comment.
The sentence imposed in the Crown Court:
At the sentencing hearing, the judge was assisted by the following:
i) a pre-sentence report, which showed that the appellant was academically able and had a supportive family, but that concerns had been expressed about his behaviour and presentation, including his behaviour towards some other girls at school;
ii) a report by a consultant forensic psychiatrist, who suggested that the appellant might have an emerging psychopathic disorder, but found no evidence that he was mentally ill and made no recommendation of a medical disposal;
iii) a report by a forensic psychologist, who assessed the appellant as having obsessional traits and being unable to see things from other persons' perspective, but considered it unlikely that he would currently meet the diagnostic criteria for an ASD; and
iv) a victim personal statement from the victim's mother, which we assume described the psychological effects of this offence.
The judge noted that the medical evidence included a suggestion of an underlying illness, but showed that the appellant was not mentally ill and was not autistic. He found that the appellant had wanted to punish his victim, whom he blamed for his unhappiness. He had considered raping her but rejected that as inadequate, and over a period of time had planned to kill her and had rehearsed killing her. We interpose here that although it is unnecessary to go into the details of that planning and rehearsal, the accounts given by the appellant to a number of professionals contain deeply disturbing features. The judge went on to say that the appellant had armed himself and lured his victim to a quiet spot. He had threatened her with rape, thereby heightening her ordeal. She must have been terrified. She had only been saved by the arrival of the passer-by. The appellant had expressed regret that he had not succeeded in killing his victim and had shown neither empathy nor remorse. He had also said that he knew the consequence of killing her, if he were caught, would be life imprisonment, but that “it would have been worth it”. The judge concluded that it was a case of “exceedingly high culpability and very real harm”.
The judge noted that the psychiatrist had reported that when he told the appellant that the victim would almost certainly suffer lasting psychological harm, the appellant “seemed much more fulfilled” and said that made him feel better “as the offence had not been completely in vain”.
The judge also noted that the appellant had told the psychologist that he considered that killing his victim was a perfectly justified way of dealing with the distress which he was suffering. He continued to resent her, and her family, and hoped she was still suffering trauma. The psychologist had concluded her report by saying:
“I am not able to offer a prognosis of when his risk will reduce to a level that will mean it will be manageable in the community. … [G]iven the ingrained nature of some of the personality traits that have influenced [the appellant's] behaviour, it is my view that to be effective any intervention will probably take years ….”
The judge concluded that an extended sentence was not sufficient to protect the public from the risk posed by the appellant, and that there was no alternative to detention for life. Taking into account the appellant's young age and previous good character, he imposed the minimum term of 7 years.
It follows from this brief summary that no medical disposal was put forward for the judge's consideration. Similarly, the unsuccessful appeal against sentence in 2014 was not based on any suggestion that a medical disposal was appropriate. Rather, it was a challenge to the imposition of a life sentence, on the ground that an extended sentence would have been sufficient to punish the appellant and to protect the public, and to the length of the minimum term.
The post-sentence diagnosis:
The appellant had great difficulty in coping with his custodial sentence. His presentation gave cause for concern about his mental health. In November 2014 he was transferred to a medium-secure hospital ward on a restricted basis, pursuant to sections 47 and 49 of the 1983 Act, for assessment of autism and potential psychopathy. Detailed assessment by a forensic adolescent psychiatrist, Dr Shah, and a clinical psychologist Dr Diggle, resulted in a conclusive diagnosis of autism. It is suggested that the reason why this diagnosis had not been made previously was that there had been inadequate assessment due to the unavailability of the full history.
The diagnosis was subsequently confirmed in reports by other experts. In July 2017 Dr Latham, a consultant forensic psychiatrist, concluded that there was very strong evidence that the appellant has an ASD. He might also have a separate personality disorder, but Dr Latham felt there was insufficient evidence to make that diagnosis. He concluded that there was a direct causal link between the ASD and the offence and that the ASD was a “highly significant contributory factor”. He considered that the appellant's ASD required treatment in hospital, and should be dealt with via the mental health pathway release regime to best protect the public. In December 2017 Dr Stankard, a consultant forensic psychiatrist who has been the appellant's responsible clinician since April 2017, expressed the opinion that the ASD was “at the very least a significant contributor” to the offence. He set out the history of the appellant's treatment in custody and in hospital, noted that he was engaging positively and making progress, and stated that he continued to require treatment under sections 47 a...
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