R v Edwards
| Jurisdiction | England & Wales |
| Judge | The Vice President,and |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] EWCA Crim 595 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201603580 A3 201603196 A4 201601718 A4,201603580 A3, 201604495 A3, 201603196 A4, 201601718 A4 |
| Date | 27 March 2018 |
and
and
and
[2018] EWCA Crim 595
Lady Justice Hallett DBE
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
Lord Justice Treacy
and
Sir Wyn Williams
Case No: 201603580 A3
201604495 A3
201603196 A4
201601718 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE BEVAN QC
T20167084
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT STAFFORD
HIS HONOUR JUDGE CHAMBERS QC
T201607043
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
HIS HONOUR JUDGE CHAPPLE
T20157373
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
HIS HONOUR JUDGE KEEN QC
T20070613
Royal Courts of Justice
Strand, London, WC2A 2LL
M Magarian QC (instructed by GT Stewart Solicitors & Advocates) for the 1 st Appellant
A Orchard QC (instructed by Appeals Unit, CPS) for the Respondent
A Watkins (instructed by Stevens solicitors (Stoke-on-Trent)) for the 2 nd Appellant
R Brand QC (instructed by Appeals Unit, CPS) for the Respondent
F McGrath ( Appears Pro Bono) for the 3 rd Appellant
A Orchard QC (instructed by Appeals Unit, CPS) for the Respondent
M Stanbury (instructed by Howard & Byrne Solicitors) for the 4 th Appellant
B Douglas-Jones (instructed by Appeals Unit, CPS) for the Respondent
Hearing dates: Wednesday 14 & Thursday 15 February 2018.
Judgment Approved
Introduction
This is a judgment to which all three members of the court have contributed.
These four cases are listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. In the cases of Edwards, Knapper, and Payne, terms of life imprisonment and a minimum term were imposed, as well as a Hospital and Limitation Direction Order under s.45A of the Mental Health Act 1983 (“the MHA”). In the case of Langley, a sentence of Imprisonment for Public Protection (IPP) was passed but no order under s.45A was imposed, no doubt in part because the amendments to that section, which came into effect in November 2008, were not in force at the time of sentence. In each case the offenders are said to have been mentally ill at the time of the offences and it is argued that orders should have been made pursuant to ss.37 and 41 of the MHA. Leave to appeal has been granted in the cases of Edwards, Knapper and Langley but refused in the case of Payne.
Statutory framework
Section 37 provides:-
“ Powers of courts to order hospital admission or guardianship
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law…and the conditions mentioned in sub-section (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order…
…
(2) The conditions referred to in sub-section (1) above are that –
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either –
and(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or
(ii) …
(b) the court is of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
Section 41 provides:-
“ Power of higher courts to restrict discharge from hospital
(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, […] and an order under this section shall be known as a ‘restriction order’.
(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.
(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows —
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below
…
(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely –
(i) power to grant leave of absence to the patient under section 17 above;
(ii) power to transfer the patient in pursuance of regulations under section 19 above…;
and(iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and
(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.
…”
Section 45A provides:-
“ Powers of higher courts to direct hospital admission
(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law –
(a) the conditions mentioned in sub-section (2) below are fulfilled; and
(b) […], the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence.
(2) The conditions referred to in sub-section (1) above are that the court is satisfied, on the written and oral evidence of two registered medical practitioners –
(a) that the offender is suffering from mental disorder;
(b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment;
and(c) that appropriate medical treatment is available for him.
(3) The court may give both of the following directions, namely –
(a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a “hospital direction”); and
(b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a “limitation direction”).
(4) a hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court.
(5) A hospital direction and a limitation directions shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for his case, or of some other person representing the managers of the hospital that arrangements have been made –
(a) for his admission to that hospital; and
(b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions;
and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety
…
(8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction.
(9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion.”
The First Tier Tribunal (Mental Health) decides when the offender should be released when an order is made under ss.37/41. However, for section 45A orders the release regime differs depending on whether an offender is serving a determinate or indeterminate sentence of imprisonment.
Determinate sentences
If a s.45A patient's health improves so that his responsible clinician or the Tribunal notifies the Secretary of State (“SoS”) that he no longer requires treatment in hospital under the MHA, the SoS will generally remit the patient to prison under section 50(1) of the MHA to serve the rest of his sentence. On arrival in prison, the s.45A order would cease to have effect and the offender would be released from prison in the usual way.
If there has been no improvement at the automatic release date, the limitation direction aspect of s.45A falls away. At that point, the patient remains in hospital but is treated as though they are subject to an unrestricted hospital...
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...of transfer to hospital for treatment under section 47 would be appropriate. 58 This approach was endorsed in the subsequent case of R v Edwards [2018] EWCA Crim 595 in which the Court of Appeal again summarised the relevant considerations at [34] of that judgment, making clear that there ......
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