R v Yusuf (Nadia Ali) [2013] EWCA Crim 2077, [2013] MHLO 137

The appellant sought a restricted hospital order in place of an IPP sentence, but was unsuccessful as her medical evidence addressed the current situation rather than the situation at the time of sentencing.

Transcript

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














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Mr M Lahiffe appeared on behalf of the Applicant








                                J U D G M E N T




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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 2012Not on Bailii!, R v Ahmed(Imtiaz) [2013] EWCA Crim 99, and R v Evans [2013] EWCA Crim 1193Not on Bailii!. 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.

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