AG's reference (no 60 of 2012) sub nom R v Edwards [2012] EWCA Crim 2746, [2012] MHLO 135

"This is a case which presented to the judge an intractable but by no means unknown sentencing problem. ... The intractable difficulty presented by this defendant and by, sadly, a number of others is this: he has a variety of personality disorders, but the doctors all report that there is no medical treatment available." [Summary required.]

Transcript (Crown Copyright)

Neutral Citation Number: [2012] EWCA Crim 2746


No: 201205777 A8


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL




                                                     Wednesday, 21 November 2012









                                  B e f o r e:




                              LORD JUSTICE HUGHES




                           VICE‑PRESIDENT OF THE CACD




                               MR JUSTICE RAMSEY




                                MR JUSTICE IRWIN




                    REFERENCE BY THE ATTORNEY GENERAL UNDER




                     S.36 OF THE CRIMINAL JUSTICE ACT 1988




                  ATTORNEY‑GENERAL'S REFERENCE NO 060 OF 2012




                             SHANE STEPHEN EDWARDS









              Computer Aided Transcript of the Stenograph Notes of




                         WordWave International Limited




                        A Merrill Communications Company




                       165 Fleet Street  London EC4A 2DY




                  Tel No: 020 7404 1400 Fax No: 0207 404 1424




                   (Official Shorthand Writers to the Court)








Mr B Altman QC appeared on behalf of the Attorney General


Mr DF Hughes appeared on behalf of the Offender








                                J U D G M E N T




                           (As Approved by the Court)









                                Crown copyright©



1.     THE VICE-PRESIDENT:  This is a case which presented to the judge an
intractable but by no means unknown sentencing problem.  The case comes to us
via an application by Her Majesty's Attorney General to refer under section 36
of the Criminal Justice Act 1988 a sentence of 2 years' imprisonment, imposed
after a prompt plea of guilty, to an offence which was legally characterised,
correctly in law, as possessing an imitation firearm with intent to cause fear
of violence (section 16A of the Firearms Act 1968).


2.     The intractable difficulty presented by this defendant and by, sadly, a
number of others is this: he has a variety of personality disorders, but the
doctors all report that there is no medical treatment available.  The
combination of cocktail of personality disorders and the defendant's repeated
tendency to drink much too much mean that he is simply quite unable to cope in
open conditions in the community.  He harms himself, sometimes severely, and he
engineers ways of getting himself locked up within days of having been released.
It has happened before more than once, and now it has happened again.


3.     The defendant is 36.  According to one of the medical reports which we
have seen, the longest period that he has had at liberty since the age of 16 has
been a very small number of months.  Most of his offences are for theft and
burglary.  It is at least possible that some of those were committed in order to
get himself locked up.  There is one previous conviction which is charged as
robbery.  Whilst that was no doubt a legally correct description of his offence,
what it amounted to was a drunken row with his mother, with whom he lived.  The
violence consisted of throwing a plastic bottle at her and seizing her by the
wrists.  However, because he took her mobile phone in the course of the
argument, robbery was the ensuing charge.


4.     The self‑harm attempts appear to have been reasonably serious.  They were
certainly not either trivial or superficial.  He has at different times thrown
himself from a bridge, cast himself under a bus, cut his throat in front of
others, particularly an ex‑girlfriend, electrocuted himself, and on more than
one occasion in custody swallowed razor blades.  One of the medical reports
which we have seen records that several of these incidents might have been
fatal.  He is accordingly, on any view, a risk to himself.


5.     He has been medically assessed on countless occasions.  He has been
sectioned under the Mental Health Act on numerous occasions, and when in
custody, as we have said he consistently has been, he has been on numerous
occasions transferred to hospital under section 47 of the Mental Health Act in
an effort to find some method of treating his condition.  Those transfers have
included moves to the kind of medium secure unit which, if anywhere, might be
able to achieve something.  But they have not.  He has been in local psychiatric
units on dozens of occasions.  He spent some 8 months in a medium secure unit at
Wathwood Hospital in 1996 under the supervision of one of the reporting doctors,
Dr Hayes.  More recently, he has been assessed, not for the first time, at
Arnold Lodge medium secure unit, where he was this time for 8 weeks.  But he
refused to conform to the regime and there was nothing they could do for him or
with him.


6.     In August 2011 he went to Rampton Hospital, where he was assessed by the
very experienced Dr Toombs, who came to the conclusion, as others had done, that
there were severe and enduring personality disorders, but that they do not
amount to a mental illness and, more significantly, they are untreatable.  Dr
Toombs addressed the risk that he presented.  He concluded that he posed a
significant risk to himself, as the serious self‑harm in the past clearly
demonstrates, but he also addressed the question of whether he presented a real
risk to the public.  He concluded:


"I do not believe that any of Mr Edwards' actual offences would suggest that he
is truly of a grave and immediate danger to the public."


7.     He went on of course to say that no one can ever completely exclude the
possibility of some future incident developing into a danger to the public, but
there is no current significant risk.


8.     The defendant has also been assessed comparatively recently by Dr Agarwal
at the Humber Centre for Forensic Psychiatry, and we have seen, although the
judge did not have, a detailed report from him.  Essentially, it comes to the
same conclusions ‑ untreatable personality disorders, meaning that he is unable
to cope in independent living, but nothing that any medical science is able to
do can improve the situation.


9.     The most recent history includes possession of some sort of air weapon in
2006.  He was charged as a result of it and a suspended sentence was imposed.
There was an episode described as harassment and also an episode of being drunk
and disorderly respectively in 2006 and 2007, and then in November of 2006 there
was the incident which we have already described involving his mother, which
created the legally accurate but otherwise misleading charge of robbery, for
which, no doubt in an effort to find some way of helping him, a court passed a
sentence of 3 years' imprisonment.  He must have been released by the summer of
2008 because on 15 July 2008 he threw himself under a bus and found himself
charged with disorderly behaviour as a result.  He was released again
conditionally in September 2009, and almost immediately, that is to say within
days, engineered his return to prison.  On that occasion, he was charged with,
and convicted after trial of, making a threat to kill.  Again, technically he
had committed that offence, but what it consisted of was sitting in conversation
with his probation officer explaining that he wanted to go to prison and saying
that he would take a hostage and shoot him.


10.     It is of some significance that the judge at the trial of that charge
was the judge who sentenced him on the present occasion, HHJ Moore, in
Sheffield.  The defendant was convicted of that.  He was released to a bail
hostel.  Within four days of that he could not cope and engineered his recall.
He was released again, this time at the halfway stage of his sentence, as he has
to be under statute, and the present offence was committed just two days after
that release.


11.     At about 7 o'clock on a Sunday evening, from the flat in which he had
been accommodated, he telephoned the police.  He identified himself by his
Christian name.  He said that he had a hostage in the flat and that he was in
possession of a Mac‑10 handgun.  He said that if he was not himself shot, he
would shoot somebody.  He was clearly agitated.  It was a situation to which the
police were obliged to respond, and to respond as a matter of gravity in case it
was a genuine hostage situation.  They had to go to the flats properly armed
with specialised officers and so on.  They could see him inside the window of
the flats and they could see that he was waving some sort of black object.  They
could not tell what it was, and whilst they seem to have been alive to the real
possibility that it might not have been a gun, they did not know.  It turned out
in due course to be a television remote control in a sock.  There was no weapon.
There was no hostage.  It took, however, a certain amount of time to engineer a
situation in which the defendant went out onto the balcony and it thus became
possible to detain him relatively peaceably by the use of a police dog, which
was sensible and imaginative.


12.     It seems at least possible that the defendant wanted certainly to be
locked up, but also possibly to engineer his own shooting by police officers.
He has in the past whilst in custody assembled photographs of a much publicised
criminal who was shot, entirely legitimately, by the police in a different part
of the country, and he told the police in interview that that was one of the
things he wanted to engineer.


13.     The result of this incident was a charge of possession of an imitation
firearm with intent to cause fear of violence.  The defendant pleaded guilty at
the earliest possible opportunity.  Unsurprisingly, the court wanted yet further
medical reports upon him to explore yet again the possibility of achieving
something not only for his own sake, but for the sake of the public.  The
medical report took a long time to come.  In the end the case came before Judge
Moore on 14 September of this year by which time the defendant had been in
custody for approximately 9 months on remand.  There was an existing report from
Dr Hayes.  Although it was addressed to fitness to plead and capacity to form
intent, it came from a doctor who had had treating care of the defendant in the
past and it gave a good overall picture of his condition.


14.     Moreover, the conclusions reached at Rampton and at the Humber Centre
were summarised, more or less accurately, in a pre‑sentence report before the
judge.  The judge, as we have said, knew the defendant and had seen him give
evidence on a previous occasion.  He reached the conclusion that the case simply
could not wait any longer.  No one suggests that he was wrong to arrive at that
conclusion.  The judge clearly addressed the possibility that the defendant was
a dangerous offender for the purposes of the provisions in the Criminal Justice
Act 2003.  He reached the clear conclusion that although the defendant was in
many ways worrying, and although he was undoubtedly a danger to himself, so far
as anybody else was concerned he was not a danger of causing serious harm.  His
condition meant that he was a nuisance, pathetic and manipulative, that he
caused the expenditure of a good deal of police time unnecessarily, but that
there was no question of an extended or indefinite sentence.  He concluded that,
after trial, the appropriate sentence would be about 3 years.  Since the
defendant pleaded guilty at the first available opportunity, he passed a
sentence of 2 years.


15.     The Attorney General seeks to refer the case after careful
consideration, to which we pay tribute.  Mr Altman QC appearing on the Attorney
General's behalf has reached the undoubtedly correct conclusion that the judge
was right about dangerousness.  Accordingly, it is not the Attorney General's
submission that this case ought to have been visited in the interests of public
protection with either an extended sentence or a sentence of Imprisonment for
Public Protection.


16.     What then is the submission?  The answer which Mr Altman frankly gave
was that the sentence ought to have been not 3 years after trial, but about 5
years after trial, and accordingly that the sentence that was passed on a prompt
plea of guilty ought to have been not 2 years, but something a little over 3
years.


17.     We record and entirely understand Mr Altman's careful treatment of the
only relevant guideline authority, R v   Avis [1998] 2 Cr App R (S) 178.  We
agree that it is possible to identify aggravating features in the present case.
It was, it is true, committed only two days after release from prison.  It was
clearly planned in the sense that the defendant intended to do it and to provoke
his recall, and perhaps to provoke the police into shooting him.  The obverse of
both those considerations is, of course, that they are both features of the
defendant's unhappy constitution.


18.     The offence did take place in a residential block of flats.  Others
might well have been affected by it.  There were oral threats to police
officers, who were, we remind ourselves, doing their public duty in the hours of
darkness, without knowing whether they were faced by a real gunman or not.  But
they were not, and the offence frankly savours in some ways more of an entirely
reprehensible hoax than it does of any genuine threat of violence.  The
defendant's previous history is of course material.


19.     The procedure for referring cases under section 36 of the Criminal
Justice Act 1988 is designed to deal with cases where judges have fallen into
gross error, where errors of principle have been made and unduly lenient
sentences have been imposed as a result.  Any case in which the proposition is
that a sentence should not have been 2 years, but should have been a little over
3, is, almost by definition, unsuitable to a reference under the Act.  It is
certainly unsuitable in a case of this kind, where the judge was faced with a
particularly difficult sentencing problem and had to pass a sentence which,
whatever it was, was not going to achieve what everybody would like to achieve,
which is some means of preventing the defendant from repetition of the kind of
self‑harming and public nuisance behaviour to which he appears to be committing.



20.     For these reasons we refuse leave to refer.  Nothing that this court
could do could do anything more than defer the problem by about a year.

External link

Possible Bailii link (not there when last checked, but it might have appeared since 0700 this morning!)