View source for Transcript of R v Yusuf (Nadia Ali) (2013) EWCA Crim 2077, (2013) MHLO 137

<pre>Neutral Citation Number: [2013] EWCA Crim 2077


No: 201302679 A1


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                                                         Royal Courts of Justice




                                                                          Strand




                                                                London, WC2A 2LL




                                                        Tuesday, 5 November 2013




                                  B e f o r e:




                              LORD JUSTICE AIKENS




                                MR JUSTICE SIMON









                           HIS HONOUR JUDGE MORRIS QC




         (Sitting as a Judge of the Court of Appeal Criminal Division)









                                  R E G I N A




                                       v




                                NADIA ALI YUSUF














              Computer Aided Transcript of the Stenograph Notes of




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Mr M Lahiffe appeared on behalf of the Applicant








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</pre>

1.     JUDGE MORRIS:  On 16 June 2008 in the Crown Court at Blackfriars the
applicant pleaded guilty to arson being reckless as to whether life would be
endangered (count2).  On 30October2008 she was sentenced by HHJ Blacksell to
imprisonment for public probation with a minimum term to serve of 2 years.  The
judge ordered that the 236 days the applicant had spent in custody on remand
should count towards the sentence.  Count1, of arson with intent to endanger
life, was ordered to lie on the file on the usual terms.  She now renews her
application for an extension of time (4 years and 4 months) in which to seek
leave to appeal against sentence after refusal by the single judge.


2.     The facts are as follows.  In 2008, the applicant, who is of Eritrean and
Somali parentage, was resident at Equinox Care, Oakley Square, a 24‑hour staffed
hostel for individuals with mental health problems.  At about 6.00pm on
2April2008 she spoke to a relief project worker about a letter she had received
about her immigration status.  She was in an agitated state.  Later that evening
at about 9.00pm she refused her medication for a second time that day and
smashed a glass in the kitchen.  At about 11.00pm, wearing only her underwear,
she went to the hostel office and spoke to the project worker again.  She was
distressed and talked about her past years in hospital.  She was crying and
holding her head.  She was offered medication, and stated "It dos not work, it
never has" and "I'm going to kill myself, I'm going to kill you all".  She then
started shouting "fire, fire".  The project worker went to the kitchen.  She
could smell burning and saw a pile of clothes on top of the oven on fire.  The
applicant prevented her from putting the fire out.  The fire service was called.
The applicant went to her room and refused to come out.  The other residents had
to leave the building.  The applicant was shortly after arrested and taken to
University College Hospital for treatment for possible smoke inhalation.  Whilst
at the hospital she tried to hang herself with the emergency cord in the
lavatory.


3.     The applicant had committed a previous offence of arson being reckless
whether life would be endangered.  In 2003 she had set fire to the room in the
hostel where she was then living and on 13November2003 had been made the subject
of a hospital order.  InDecember2004 an arson assessment was made of her, which
concluded:


"She appears to have a good understanding of how easily fires can spread and
that big fires can result in serious injury or even death.  Indeed Miss Yusuf
accepts the positive reinforcement she gave after the event (meaning her
hospitalisation)."


Although she was discharged from hospital in 2005 she was admitted again
inApril2006 having set fire to her clothing in her room at the Oakley Square
hostel.  This matter was not reported to the police.


4.     The judge had before him psychiatric reports by Dr Katherine Bartlett,
Consultant Psychiatrist to Her Majesty's Prison Holloway, dated 12 and
23June2008; and by Dr Kayai Thinn, dated 29October and 13November2008.  In
addition, Dr Thinn gave evidence in person before the judge.  Both doctors
concluded that the applicant suffered from emotionally unstable personality
disorder.  There was a possibility that she also suffered from depression with
post traumatic stress disorder.  Her main problems had been associated with the
emotionally unstable personality disorder.  They included instability of
relationships, mood swings, recurrent self harm and impulsive behaviour
including outbursts of intense anger.  However, previous hospitalisations had
not reduced the risk of further serious offending by her, and her condition had
not been shown to be amenable to treatment and was not likely to be amenable to
treatment in the future.


5.     Having regard to the contents of these reports, the evidence of Dr Thinn
and the facts of this offence and the previous offence of arson, the judge was
satisfied that the applicant satisfied the criteria of dangerousness and that
the only appropriate sentence was imprisonment for public protection.  Taking
into account all relevant matters and the guilty plea, the notional determinate
sentence would have been 4 years.  Accordingly, the minimum term was 2 years.
No criticism is made of the finding of dangerousness or the minimum term.
Indeed, in his advice on appeal counsel concedes that "in one sense, faced with
the information that was before His Honour Judge Blacksell, we cannot criticise
his conclusion".


6.     After sentence the applicant made unsuccessful parole applications
inJune2010 andDecember2011, and was transferred from prison to hospital on
11April2012 under the provisions of section47 of the Mental Health Act 1983.
Since then she has been an inpatient on Juniper Ward of Camlet 3 Regional Secure
Unit.


7.     She now relies on a report upon her, dated 25April2013, from Dr Paul
Williams, who says that were the applicant to be receiving a sentence now he
would recommend a hospital order under section37 of the 1983 Act based on the
applicant's history, current presentation and need for future treatment.
Furthermore, given the antecedents, past history of engagement with psychiatric
services and ongoing potential risk, a restriction order under section 41 of the
Act should in addition be considered.


8.     The single judge in refusing leave said that the only basis for the
application now being made is the report by Dr Williams which suggests that the
applicant would now benefit from a hospital order.  There were a number of
insurmountable problems with this approach.  First, it was not suggested that Dr
Williams was dealing with the position in 2008 when she was sentenced.
Secondly, it ignored the fact that there was a good deal of psychiatric evidence
available to the judge on which he had to reach a conclusion.  Thirdly, it did
not address the critical point, which is that on the basis of the information
available to him, Judge Blacksell came to the right conclusion.


9.     Yesterday we received an addendum report from Dr Williams, dated
31October 2013, in which he confirmed his diagnosis of the applicant's
condition.  In his opinion and recommendations he said this:


"I continue to form the view that Ms Yusuf suffers from a mental disorder,
emotionally unstable personality disorder, which remains of a nature and degree
to warrant her detention in a secure hospital on grounds of risk to health, self
and for the protection of others ... She is not in my view ready for any
recommendation to a Tribunal for a conditional discharge which, if in principle
agreed, would trigger a parole hearing."


He also expressed the opinion that being subject to imprisonment for public
protection and the need for parole hearings for release caused her stress and
made it more difficult for her to engage consistently.  As he had said
previously, if the applicant were being sentenced now he would recommend a
hospital order under section 37 with a restriction under section41.


10.     In R v Gisanrin [2010] EWCA Crim 504, the court observed at paragraph
38:


"If it was proper on the material before him or her for the trial judge to pass
an IPP based upon dangerousness, the fact that since there have been apparent
improvements as a result of undergoing courses in prison or for whatever reason,
is not a reason for this court to interfere with the sentence. The whole point
of a sentence which will, one hopes, enable a defendant to undertake any
necessary courses, will be to result in improvements or if, and this was to an
extent the case of Harjinder, the view was taken that no courses were needed
because he had improved, again that is something which will no doubt avail the
individual when it comes to be considered whether he should be released on
licence. But it is not a matter that can affect the propriety of the sentence
imposed at the time it was imposed. In exceptional cases improvements have been
held by this court to be properly taken into account in reducing determinate
sentences. The same principle will no doubt apply in relation to tariffs in
IPPs, but normally they will not affect the correctness of the imposition of the
IPP itself."


11.     We have been referred by Mr Lahiffe, who has appeared on behalf the
applicant, to R v Channer [2012] EWCA Crim 2012,  R v Ahmed(Imtiaz) [2013] EWCA
Crim 99, and R v Evans [2013] EWCA Crim 1193.  However, in those cases this
court was considering whether to admit fresh evidence that at the time of
sentence there had been a misdiagnosis and that a hospital order ought therefore
to have been made at that time.  That is not the case here.  Nevertheless, Mr
Lahiffe invites us to take a wholly exceptional course in this case.


12.     In our judgment, Dr Williams' reports are concerned with the applicant's
present condition, not her condition at the time of sentence.  He does not seek
to suggest that the opinions expressed by the psychiatrists at that time were
wrong.  In the circumstances, there is no basis on which the report could be
admissible as part of any appeal on the ground that the original sentence was
wrong in principle.  On the face of it, as the single judge said, these reports
might help the applicant to obtain a transfer from prison to a secure hospital
but that would be a matter for the prison authorities and/or the Parole Board.



13.     For the reasons so fully and cogently expressed by the single judge we
consider the sentence in this case was neither wrong in principle nor manifestly
excessive. In the circumstances, this application is refused.