R v Nelson  EWCA Crim 1615
Hybrid order or restricted hospital order The Court of Appeal considered the differences between a hybrid order (s45A) and a restricted hospital order (s37/41), the guidance from caselaw and the Sentencing Council's Guideline on "Sentencing offenders with mental disorders, developmental disorders or neurological impairment" which came into effect on 1/10/20.
This appeal against sentence demonstrates some of the practical differences between, and advantages and disadvantages of, a "hybrid order" under section 45A of the Mental Health Act 1983 ("MHA") combining imprisonment with a hospital direction and limitation direction on the one hand, and a "hospital and restriction order" under section 37 MHA with section 41 MHA on the other hand. Guidance on the approach to section 45A hybrid orders and sections 37 and 41 hospital and restriction orders was given in R v Vowles
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Court of Appeal
Regina v Nelson (Keith)
2020 Nov 24;
Dingemans LJ, Judge Walden-Smith
Crime— Sentencing— Hospital direction— Defendant suffering from delusional and anti-social personality disorders— Defendant pleading guilty to making threats to kill— Judge sentencing defendant to hybrid order of imprisonment for public protection (“IPP”) with three-year minimum term and hospital direction with limitation direction— Whether hybrid order with IPP wrong in principle and manifestly excessive— Whether hospital order and restriction appropriate sentence— Mental Health Act 1983 (c 20), ss 37, 41, 45A
The defendant suffered from a number of mental health problems including a delusional disorder, auditory hallucinations and an anti-social personality disorder. He pleaded guilty to racially aggravated offences of assault occasioning actual bodily harm and damage to property, assault by beating and threats to kill. The sentencing judge had before him three reports, the first from the consultant forensic psychiatrist who was the defendant's responsible clinician concluded that a hospital order under section 37 of the Mental Health Act 1983 with a section 41 restriction would not be adequate to protect the public and proposed an order under section 45A of the 1983 Act to achieve the best medical and psychological outcome. He indicated orally at the sentencing hearing that the section 45A order should be combined with a sentence of imprisonment for public protection (“IPP”) to ensure that the defendant's sentence only came to an end once both the parole board and the First-tier Tribunal (Mental Health) deemed him safe for release. The second consultant forensic psychiatrist recommended that if a section 45A order was imposed it should be alongside a determinate term rather than an IPP. The third report was from a consultant forensic and addiction psychiatrist who recommended a hybrid order under section 45A and considered the defendant was a dangerous offender. The judge found that the defendant was suffering from a mental disorder within the meaning of section 45A(2)(b) of the 1983 Act. He did not undertake an assessment of the defendant's residual culpability for the offences in the light of the existence of the mental disorders because the guidance recommending doing so had not yet become available. The judge found that the defendant satisfied the dangerousness provisions and sentenced him to an IPP with a minimum term of three years and a hospital direction with a limitation direction under section 45A for the offence of making threats to kill. He sentenced the defendant to concurrent determinate sentences of imprisonment for the racially aggravated offences and imposed no separate sentence in relation to offence of assault by beating. The defendant appealed against sentence on the grounds that new medical evidence demonstrated that the section 45A hybrid order would create problems for him and the public which it sought to protect, and that the making of the order with an IPP was wrong in principle and manifestly excessive and the appropriate order should have been made under sections 37 and 41.
On the defendant’s appeal—
Held, appeal allowed. Hybrid orders under section 45A of the Mental Health Act 1983 were appropriate where (i) notwithstanding the existence of the mental disorder, the sentence required a penal element and (ii) the offender had a mental disorder but there were real doubts that the treatment requirements would be complied with in hospital, so that the hospital would be left looking after an offender who might be dangerous and who was not being treated. The new medical evidence relied upon by the defendant showed that one of the practical disadvantages of an offender with a delusional disorder being treated under section 45A was the likelihood that, if returned to prison from hospital, he would stop taking the anti-psychotic medication he was previously required to take, which would lead to relapse and further treatment. Making a section 45A hybrid order required a careful assessment of the offender’s culpability, notwithstanding the presence of mental disorder. A defendant serving a determinate sentence of imprisonment under a section 45A hybrid order would be supervised by a probation officer when released on licence who would provide less regular supervision than a community mental health team. After being released by the parole board, who did not impose such conditions as a requirement to take anti-psychotic medication, a defendant serving an indeterminate sentence of imprisonment (“IPP”) would be supervised by a probation officer who would be unable to intervene if the defendant’s mental state deteriorated until he committed further offences. Having considered the relevant questions outlined in the authorities, and in the light of the new medical evidence, the proper order to be made in the defendant’s case was a hospital and restriction order under sections 37 and 41 of the 1983 Act, since he was likely to require treatment with anti-psychotic medication throughout his life. Although real harm had been caused to the victims there was less need for punishment because the defendant’s culpability had been so adversely affected by his mental disability, and his residual culpability was limited. Furthermore, he had already been detained in hospital for nine years. The section 45A hybrid order comprising an IPP, hospital and limitation direction imposed in respect of the threats to kill and the concurrent sentences of two years’ imprisonment for the racially aggravated assault and criminal damage were quashed, and a section 37 hospital order with a section 41 restriction order was substituted on all three counts (paras 35–38, 42–43, 45–46).
R v VowlesB , CA and R v Edwards B applied.
Philip Rule (assigned by the Registrar of Criminal Appeals) for the defendant.
Denis Barry (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.
Georgina Orde, Barrister