R v Edwards [2018] EWCA Crim 595

These four cases were listed before the court to consider issues arising from the sentencing of mentally ill offenders to indeterminate terms of imprisonment. (1) Comparison of release regimes under s.37/41 and s.45A. (2) Rules governing applications to this court to advance new grounds or fresh evidence. (3) General principles: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a s.45A order, we summarise the following principles we have extracted from the statutory framework and the case law. (i) The first step is to consider whether a hospital order may be appropriate. (ii) If so, the judge should then consider all his sentencing options including a s.45A order. (iii) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. (iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. (v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness. (vi) If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate. (vii) The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. (viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. (ix) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made." (4) The court considered the individual appeals/application, noting that it is appellate not a review court and that the question is whether the sentence imposed was manifestly excessive or wrong in principle.

ICLR

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The WLR Daily case summaries

[2018] WLR(D) 199

Court of Appeal

Regina v Edwards (Regina) and others

[2018] EWCA Crim 595

2018, Feb 14, 15, March 27

Hallett, Treacy LJJ, Sir Wyn Williams

Crime— Sentencing— Hospital direction— Guidance for sentencing judges where offender suffering from mental disorder— — Mental Health Act 1983 (c 20) (as amended by Crime (Sentences) Act 1997 (c 43), s 46, Criminal Justice Act 2003 (c 44), s 332, Sch 37 and Mental Health Act 2007 (c 12), ss 1(4), 4(1)(6), 10(1)(8), 55, Sch 1, paras 1, 19, Sch 11), ss 37, 41, 45A — Criminal Justice Act 2003 (c 44), s 142

Four unrelated cases concerned defendants who were mentally ill at the time of their offences. The defendants, E and K, were each convicted of manslaughter by reason of diminished responsibility. The defendant, L, was convicted on two counts of making threats to kill, one count of damaging property, and one count of theft. The defendant, P, was convicted on two counts of attempted murder. E, a paranoid schizophrenic, was sentenced to life imprisonment with a minimum term of ten years’ imprisonment and with a hospital and limitation direction under section 45A of the Mental Health Act 1983. K, a paranoid schizophrenic, was sentenced to life imprisonment with a minimum term of five years’ imprisonment and with a hospital and limitation direction under section 45A of the Mental Health Act 1983. L, whose mental disorder was considered by a psychiatrist not to be a form of mental disorder for which L could be compulsorily detained at a hospital, was, in relation to the counts of making threats to kill, sentenced to imprisonment for public protection with a minimum term of imprisonment of 252 days. P, a paranoid schizophrenic, was sentenced to life imprisonment with a minimum term of 14 years’ imprisonment and with a hospital and limitation direction under section 45A of the Mental Health Act 1983. The defendants, E, K and L, appealed against sentence, and P applied for permission to appeal against sentence, the grounds of appeal in each case including a ground that orders should have been made pursuant to sections 37 and 41 of the Mental Health Act 1983.

On the appeals and the application—

Held, allowing the appeals, but dismissing the application, that misunderstanding appeared to have arisen concerning the guidance given in R v Vowles (Lucinda) [2015] 1 WLR 5131. The general principles in relation to the sentencing of offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or an order under section 45A of the Mental Health Act 1983 were: ( i) the first step is to consider whether a hospital order may be appropriate; (ii) if so, the judge should then consider all his sentencing options including a section 45A order; (iii) in deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence; (iv) to decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions; (v) a failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness; (vi) if the judge decides to impose a hospital order under sections 37/41, he or she must explain why a penal element is not appropriate; (vii) the regimes on release of an offender on licence from a section 45A order and for an offender subject to sections 37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in R v Ahmed [2016] EWCA Crim 670 and/or or by the parties in the cases before us. Each case turns on its own facts; (viii) if an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a section 45A order he or she should lodge a section 23 Criminal Appeal Act 1968 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it; (ix) grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made. On the facts the appeal should be allowed in E’s case to the extent that the minimum term of imprisonment should be reduced to five years; in the light of fresh evidence, the appeals should be allowed in K’s case and in L’s case to quash the sentence and substitute a hospital order under section 37 with section 41 restrictions; and the application in P’s case should be dismissed (see paras 11–12, 34, 47–50, 67–69, 95–97, 109).

Michael Magarian QC (instructed by G T Stewart, Solicitors & Advocates) for the defendant in the first case, Regina Edwards.

Anthony Orchard QC (instructed by Crown Prosecution Service, Appeals Unit) for the prosecution in the first case.

Adam Watkins (instructed by Stevens, Solicitors & Advocates, Stoke-on-Trent) for the defendant in the second case, Barry Knapper.

Rachel Brand QC (instructed by Crown Prosecution Service, Appeals Unit) for the prosecution in the second case.

Matthew Stanbury (instructed by Howard & Byrne, York) for the defendant in the third case, Matthew Langley.

Ben Douglas-Jones (instructed by Crown Prosecution Service, Appeals Unit) for the prosecution in the third case.

Francis McGrath QC (instructed by Bar Pro Bono Unit) for the defendant in the fourth case, Lincoln Payne.

Anthony Orchard QC (instructed by Crown Prosecution Service, Appeals Unit) for the prosecution in the fourth case.

Reported by: Philip Ridd, Solicitor

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