AG's reference (no 60 of 2012) sub nom R v Edwards  EWCA Crim 2746,  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."
Transcript (Crown Copyright)
Neutral Citation Number:  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  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.
Possible Bailii link (not there when checked last night, but might have appeared since)