R v Odiowei  EWCA Crim 2253,  MHLO 131
The appellant sought a restricted hospital order in place of a life sentence, relying on two recent medical reports which were critical of previous reports. The matter was adjourned for six weeks to obtain responses from the previous reports' authors.
Neutral Citation Number:  EWCA Crim 2253 No: 201300800 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 19th November 2013 B e f o r e: LORD JUSTICE ELIAS MR JUSTICE KING MR JUSTICE HOLROYDE R E G I N A v JUSTIN OBUZA ODIOWEI Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Miss J Mackie appeared on behalf of the Applicant Mr R Vardon appeared on behalf of the Crown J U D G M E N T (Approved) Crown copyright©
1. LORD JUSTICE ELIAS: On 30th April 2001, at the Manchester Crown Court before Henriques J, the applicant Mr Odiowei was sentenced to custody for life for an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. It was a bizarre offence when he rounded upon a friend of his and attacked him with a knife. He now seeks to adduce fresh evidence and leave to appeal against sentence and an extension of time, it being now over 11 years since he was sentenced. The basis of his appeal is he says that he ought to have been sentenced to a hospital order with restrictions pursuant to sections 37 and 41 of the Mental Health Act 1983. The evidence before the judge at the time was such that the conditions for imposing any such order were not satisfied and therefore the judge could not dispose of the matter in that way.
2. There are now two reports from a Dr Abbot, who became the responsible medical officer for Mr Odiowei when he was transferred to Ashworth Hospital shortly after he was sentenced, and also from a Dr Higgins, who became the responsible clinician at Ashworth at a later date. They have been to some extent critical of the conclusions of two psychiatrists who examined Mr Odiowei at the relevant time, a Dr McInerney and a Dr Mullin. Dr McInerney produced a report which was available to the sentencing judge; it appears as though Dr Mullin did not.
3. We have no response from either of those two doctors to the assertions now made by both Dr Abbot and Dr Higgins that the applicant would have been suffering from a relevant mental illness at the appropriate time and that the conditions for making a section 37/section 41 order were accordingly satisfied.
4. This appeal is advanced after very considerable delay. We have to say we are not entirely satisfied with the explanation as to why it has taken so long for the matter to come before us, but we conclude nonetheless that we should grant permission in the light of the material we have seen, notwithstanding that there have been these considerable delays. If in fact this case ought to have been disposed of by an appropriate hospital order, then it seems to us that is what should now happen. It is not in the public interest that the applicant should be subject to the prison regime if that was never the right sentence for him, and it could impose unfair restrictions upon him. For example, he may have to comply with certain courses which he has been unable to take because of his mental state before release by the Parole Board. So if in fact he ought to have been subject to a hospital order, we do not think that the delay in bringing this matter to the court should adversely affect him now. It is not suggested either that he was personally responsible for these delays.
5. The evidence we have seen is prima facie powerful evidence in support of the hospital order. As we say, we admit it and the prosecution does not seek to contest that. But we think the court would be assisted, and no doubt courtesy to the two original doctors requires also, if the two original doctors have an opportunity to comment on these later reports. This court will be a better position to assess whether or not the ground of appeal can be sustained in the light of all of the material.
6. So we adjourn the matter for a period of some six weeks. It may be of course that the reports will not have been obtained by then, but at least if we could have a report back to the court by counsel as to where we stand,and as to whether the original doctors have been identified and located and have been sent the material. The appeal should be brought back for determination as soon as it possibly can.
7. MR VARDON: Is it to be mentioned in six weeks formally?
8. LORD JUSTICE ELIAS: It need not be formally mentioned, but I think the Court of Appeal Office needs to be kept in touch.
9. It does not have to be the same constitution, it almost certainly will not be, that hears the appeal.
10. MISS MACKIE: I am grateful.
11. LORD JUSTICE ELIAS: The only other point is, I am sure you will appreciate, it is not strictly necessary to have both doctors here to give oral evidence. We need the report of the two doctors, but one suffices for the purpose of satisfying the condition of this court making an order. If you wish to have two that is fine, but for the moment I have to say, and unless and until one sees perhaps what these doctors say in response, you may feel that one is enough.
12. MISS MACKIE: Thank you.
13. LORD JUSTICE ELIAS: I leave you to decide which.
14. MISS MACKIE: I am grateful.
15. LORD JUSTICE ELIAS: I suppose the one most appropriate is the one who can best deal with the question of what his state would have been at the relevant time.
16. MISS MACKIE: Indeed, that I think would be Dr Abbot.
17. LORD JUSTICE ELIAS: We were thinking the one currently in charge, but that was going through my mind when I put it to you. It may be Dr Abbot would be in a better position.
18. MISS MACKIE: I will give consideration to that, my Lord.
19. LORD JUSTICE ELIAS: Anything else?
20. MR VARDON: No, thank you.
21. My Lord, I am sorry, I assume the Crown now have that duty to obtain that report.
22. LORD JUSTICE ELIAS: Yes please.
23. MR VARDON: It had not been totally overlooked, it was really a conscious decision by those in York that it was not appropriate when it was chased up.
24. LORD JUSTICE ELIAS: It is perhaps unfortunate it was not alerted, it is not a criticism of them, but in retrospect somebody needs to do it and it seems to all of us that better the Crown than the defence.
25. MR VARDON: Certainly.
26. LORD JUSTICE ELIAS: For obvious reasons.
27. Thank you very much indeed. Could you please give our apologies to the two doctors. I understand it is very frustrating from their point of view. Perhaps they would understand if they had given a report some years ago which was being criticised, albeit factually and respectfully ‑‑
28. MISS MACKIE: I am sure they will understand.
respond to it.
29. LORD JUSTICE ELIAS: ‑‑ they might like to have the opportunity to
Possible Bailii link (not there when checked last night, but might have appeared since)