Factual and Procedural Background
This opinion concerns six criminal appeals heard by the Court of Appeal Criminal Division involving indeterminate sentences (either imprisonment for public protection (IPP) or life sentences) imposed between 1997 and 2008. Each case involved psychiatric evidence regarding the suitability of a hospital order under section 37 of the Mental Health Act 1983 (MHA) with restrictions under section 41. Although the sentencing judges did not make hospital orders, the appellants were subsequently transferred to hospital under section 47 transfer directions by the Secretary of State.
Additionally, the Court of Appeal Civil Division heard a related civil appeal involving a judicial review brought by the first appellant in the criminal appeals concerning delays by the Secretary of State for Justice and the Parole Board in determining her application for release from custody.
The appellants seek to have their release and terms of release determined by the First-tier Tribunal (Health, Education and Social Care Chamber (Mental Health)) or the Mental Health Review Tribunal for Wales under the MHA, rather than by the Parole Board under the criminal sentence regime. They appeal against their sentences based on fresh psychiatric evidence, relying on section 23 of the Criminal Appeal Act 1968, arguing that hospital and restriction orders under sections 37 and 41 of the MHA should have been made instead of indeterminate sentences.
The court's task is to determine whether fresh evidence should be admitted, and if so, whether the original sentencing decisions were correct or whether hospital and restriction orders should have been imposed. The court also considers the broader implications for sentencing practice and guidance for judges, especially given the abolition of the IPP sentence.
Legal Issues Presented
- Whether fresh psychiatric evidence should be admitted under section 23 of the Criminal Appeal Act 1968 in relation to the original sentencing decisions.
- Whether the original indeterminate sentences of imprisonment were correct or whether hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983 should have been imposed.
- The lawfulness and procedural propriety of the release determination regime involving both the First-tier Tribunal (or Mental Health Review Tribunal for Wales) and the Parole Board, including compliance with Article 5(4) of the European Convention on Human Rights.
- The appropriate approach to sentencing offenders with mental disorders, particularly in cases involving indeterminate sentences and the interaction with the Mental Health Act 1983.
Arguments of the Parties
Appellant's Arguments
- The appellants argue that their mental disorders were of a nature and degree warranting hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983, and that the sentencing judges were wrong in principle to impose indeterminate sentences of imprisonment instead.
- They contend that the release and supervision regime under the Mental Health Act would better protect the public and provide appropriate treatment and care, as opposed to the release regime under the Parole Board and licence conditions following imprisonment.
- In the civil appeal, it was argued that the delay in determining release applications violated the right to a speedy judicial determination under Article 5(4) of the European Convention on Human Rights, and that having two separate judicial bodies (First-tier Tribunal and Parole Board) determine release was unlawful and discriminatory under Article 14.
Respondent's Arguments
- The Secretary of State and Parole Board argued that the dual judicial determination regime is lawful, justified, and compliant with the Convention rights, as the different bodies address distinct issues related to mental disorder and risk to the public.
- They maintained that the delays in the determination process were attributable to necessary clinical assessments and procedural requirements, and that the overall process complied with the obligation for a speedy determination.
- They submitted that sentencing judges must consider all circumstances, including psychiatric evidence, culpability, risk to the public, and the appropriate release regime, and that the original sentences were appropriate given the evidence before them.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Newman [2000] Crim LR 309 |
Criticism and interpretation of s.45A directions under the MHA. |
Referenced to explain the development and use of hospital directions under s.45A. |
| R v IA [2006] Crim LR 79 |
Interpretation of s.45A and its amendments. |
Used to illustrate the limited use and challenges surrounding hospital directions. |
| R v Drew [2003] UKHL 25 |
Consideration of mental health treatment orders and sentencing. |
Referenced regarding the need for sentencing judges to consider the release regime and treatment availability. |
| Cooper [2010] EWCA Crim 2335 |
Detailed examination of hospital directions under s.45A. |
Discussed in relation to the use and advantages of hospital directions. |
| X v UK (1982) 4 EHRR 188 |
Article 5(4) ECHR and judicial review of detention. |
Referenced to explain states’ discretion in judicial procedures for detention review. |
| R (Noorkoiv) v Home Secretary [2002] 1 WLR 3284 |
Requirement for speedy judicial determination under Article 5(4). |
Used to support the obligation on the state to organise judicial processes to comply with Article 5(4). |
| R (P) v Home Secretary [2003] EWHC 2953 (Admin) |
Justification for separate judicial bodies for different detention issues. |
Supported the court’s conclusion that separate determinations do not breach Convention rights. |
| R v Howell (1985) 7 Cr App R(S) 360 |
Early guidance on hospital orders versus imprisonment. |
Discussed to show historical approach to hospital orders when psychiatric evidence met criteria. |
| Birch (1990) 90 Cr App R 78 |
Clarification on the purpose and considerations for hospital orders under s.37. |
Emphasised the necessity of considering all circumstances and the non-punitive nature of hospital orders. |
| Attorney General's Reference (No.27 of 2013), R v Burinskas [2014] 1 WLR 4209 |
Sentencing principles involving mental disorder and public protection. |
Referenced regarding sentencing considerations including culpability and risk after treatment. |
| R (Sim) v Parole Board [2004] QB 1288 |
Risk assessment and burden of proof in Parole Board decisions. |
Used to support that risk evaluation principles apply equally to the First-tier Tribunal. |
| R (Brooks) v Parole Board [2004] EWCA Civ 80 |
Assessment of risk and procedural fairness in parole determinations. |
Referenced to support the parity of risk assessment standards. |
| Mooren v Germany (2010) 50 EHRR 23 |
Requirement for speedy judicial decisions on detention. |
Applied to illustrate the need for overall speediness in detention review processes. |
| R (Rayner) v Home Secretary [2009] 1 WLR 310 |
Necessity of energetic and rapid judicial case management. |
Used to define the standard of speediness required under Article 5(4). |
| R (Sturnham) v Parole Board [2011] EWHC 838 (Admin) |
Right to speedy determination even if outcome is adverse. |
Supported the principle that procedural rights must be observed regardless of result. |
| R (Faulkner) v Secretary of State for Justice; R (Sturnham) v Parole Board [2013] 2 AC 254 |
Entitlement to damages for procedural breaches in parole decisions. |
Referenced to confirm the importance of procedural fairness and timely hearings. |
| R (Lomey) [2004] EWCA Crim 3014 |
Limits on Court of Appeal powers to substitute hospital orders. |
Discussed regarding statutory constraints on substituting hospital and restriction orders on appeal. |
| R v Blackwood [2001] EWCA Crim 743 |
Best practice for evidence from treating doctors in hospital order appeals. |
Referenced to highlight evidential standards for hospital order appeals. |
Court's Reasoning and Analysis
The court analysed the applicable legal regimes concerning sentencing options for offenders with mental disorders, the powers of the Secretary of State to transfer prisoners to hospital, and the procedures for release determinations under the Mental Health Act and the Crime (Sentences) Act 1997. It emphasised the significant difference in release regimes between hospital and restriction orders (decided by the First-tier Tribunal or Mental Health Review Tribunal for Wales) and indeterminate sentences (decided by the Parole Board).
The court considered the Convention rights arguments, concluding that having two separate judicial bodies determining release does not breach Article 5(4) or Article 14 of the European Convention on Human Rights, as the distinct bodies address different legal questions related to mental disorder and public protection. The court noted that while the dual system is lawful, it may be inefficient and suggested Parliament reconsider the regime for speedier and more integrated decision-making.
Regarding the criminal appeals, the court applied the principles of section 23 of the Criminal Appeal Act 1968 to determine whether fresh psychiatric evidence justified substituting hospital and restriction orders for the original indeterminate sentences. It emphasised the importance of sentencing judges carefully considering all relevant factors, including the nature and treatability of the mental disorder, the causal link to offending, the need for punishment, and the regime for release and supervision.
The court analysed the fresh evidence in each case, considering the psychiatric reports and the circumstances at the time of sentencing. It found that in some cases (notably the appellant identified as Danielle Coleman and the appellant identified as Justin Odiowei) the fresh evidence demonstrated that a hospital and restriction order would have been the appropriate disposal. In other cases, the court was not persuaded that the original sentences were wrong in principle.
In the civil appeal concerning delay in release proceedings, the court undertook an overall assessment of the process and found that despite administrative failings and delays, the necessary clinical assessments required time, and no breach of the obligation for a speedy determination under Article 5(4) had occurred in the particular circumstances.
The court also provided detailed guidance for sentencing judges on the approach to cases involving mental disorders, highlighting the need to consider the availability and suitability of hospital orders under sections 37 and 41, hospital directions under section 45A, interim hospital orders under section 38, and transfer powers under section 47. It cautioned judges to carefully weigh all circumstances and not rely solely on psychiatric opinions.
Holding and Implications
The court's holdings varied by appellant:
- For the appellant referred to as Lucinda Vowles, the court dismissed the criminal appeal, concluding the original indeterminate sentence was appropriate despite the fresh evidence, and dismissed the civil appeal concerning delay in release proceedings.
- For the appellant referred to as Carl Barnes, the court dismissed the appeal, finding the original sentence appropriate given the evidence at the time.
- For the appellant referred to as Danielle Coleman, the court QUASHED the indeterminate sentence of imprisonment and substituted a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983.
- For the appellant referred to as Justin Odiowei, the court QUASHED the life sentence and substituted a hospital and restriction order under sections 37 and 41 of the Mental Health Act 1983.
- For the appellant referred to as David Stuart Irving, the court dismissed the appeal, finding no sufficient causal link to overturn the original sentence despite updated psychiatric evidence.
- For the appellant referred to as Gordon McDougall, the court QUASHED the indeterminate sentence of imprisonment and substituted a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983.
These decisions directly affect the release and treatment regimes applicable to the appellants, transferring responsibility from the Parole Board to the First-tier Tribunal and associated mental health services where hospital orders are substituted. The court did not establish new legal precedent but provided comprehensive guidance on the application of the Mental Health Act in sentencing and the procedural framework for release determinations.