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|R v Edwards (2018) EWCA Crim 595||
Sentencing guidance, including s37 and s45A
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 s37/41 and s45A. (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.
|R v Taj (2018) EWCA Crim 1743||
(1) Appeal against conviction: "The defence sought to rely on self-defence as codified in s76 Criminal Justice and Immigration Act 2008 noting, in particular, s76(4)(b) which makes it clear that the defence is available even if the defendant is mistaken as to the circumstances as he genuinely believed them to be whether or not the mistake was a reasonable one for him to have made. Although s76(5) provides that a defendant is not entitled to rely upon any mistaken belief attributable to intoxication that was voluntarily induced, it was argued that as there was no suggestion that Taj had alcohol or drugs present in his system at the time, he was not 'intoxicated' and so was not deprived of the defence. It was also submitted that R v McGee, R v Harris, R v Coley  EWCA Crim 223 supported the proposition that to be in a state of 'voluntarily intoxication' there had to be alcohol or drugs active in the system at the time of the offence. ... In our view, the words "attributable to intoxication" in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia. This is consistent with common law principles. We repeat that this conclusion does not extend to long term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse. In the circumstances, we agree with Judge Dodgson, that the phrase "attributable to intoxication" is not confined to cases in which alcohol or drugs are still present in a defendant's system. It is unnecessary for us to consider whether this analysis affects the decision in Harris: it is sufficient to underline that the potential significance of voluntary intoxication in the two cases differs." The appeal against conviction was dismissed. (2) The application for leave to appeal against sentence was refused.
|R v Thompson (2018) EWCA Crim 639||
Guidance on sentencing on appeal
"These four otherwise unconnected appeals have been listed together as each potentially raises an issue in relation to the effect of s11(3) of the Criminal Appeal Act 1968 which requires this court, on an appeal against sentence, to exercise its powers such that 'taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below'. Articulating the issue with reference to the specific sentences that may give rise to the issue, it is about the extent to which this court can substitute what is a standard determinate sentence with (i) a special custodial sentence for offenders of particular concern under s236A of the Criminal Justice Act 2003; (ii) an extended sentence under s226A or B of the 2003 Act; or (iii) a hospital order with restriction or hybrid order under s37 and 41 or 45A of the Mental Health Act 1983."