L, R v

J U D G M E N T

Thursday 13 February 2003

MR JUSTICE JACKSON: Mr Justice Elias will give the judgment of the court.

MR JUSTICE ELIAS:

1. On 9 November 2001, in the Crown Court at Liverpool, the applicant pleaded guilty to robbery. He was sentenced by His Honour Judge Clifton to four-and-a-half years' imprisonment. It appears that, in addition, the appellant may have received a short concurrent sentence for a breach of one of the provisions of the Public Order Act, but it has not been possible to determine for certain whether that is so or not. The applicant now applies for an extension of time in which to apply for leave to appeal against sentence following refusal by the single judge.

2. The background is as follows. At about 10am on 25 June 2001, the applicant told his parents that he was short of money. His mother offered him £20 if he would go to the post office and cash her pension for her. It was a small local post office. A short time later the appellant arrived at the post office. He upset other customers by jumping the queue. The staff, understandably, rebuked him and refused to serve him. He left and returned home. He told his mother that there had been a big queue and that he had not cashed her pension. He said that he would return to the post office in his father's car, which he did. Shortly thereafter, he re-entered the post office with the family pet, a Yorkshire Terrier. He set about smashing the security screen in the post office with a sledge hammer, which he had obtained shortly before going back to the post office. He stole in excess of £2,600 before leaving in his father's car. Not surprisingly, a witnesses noted the registration number.

3. Police officers went to the home of the applicant's parents. Initially they arrested the applicant's father. There were two sledge hammers inside his car. Subsequently it became clear that it was the applicant who had committed the offence. He was arrested some time later. Some of the money had been spent, but £1,360 was recovered.

4. When he came to pass sentence, the judge had before him a pre-sentence report and also a psychiatric report from a Dr Boyd, who is a consultant in forensic psychiatry. Dr Boyd concluded that the applicant's mental state at the time was a very significant factor in the commission of the crime. He considered that the applicant had a mental illness, but that it was not of a nature or degree that warranted detention in hospital. Nor did it prevent the applicant from understanding what he was doing. In these circumstances the psychiatrist had no medical recommendation to make with regard to the disposal of the case, although he noted that he had asked one of his colleagues who visited the prison regularly to review the applicant and to see if some particular drugs would be of assistance to him. In the light of this report, the judge imposed the sentence of four-and-a-half years' imprisonment.

5. It is conceded that this was an extremely serious offence and that in view of the report of Dr Boyd the sentence imposed by the judge was perfectly appropriate. However, Mr Kitching, on the applicant's behalf, says that it has now become clear that the illness from which the applicant was suffering is in fact far more serious than Dr Boyd had appreciated at the time. Just before Christmas 2001, the applicant made a serious and genuine attempt at suicide. As a consequence, he was transferred to the Scott Clinic, which is a Mental Health Unit, on 12 February 2002. He was then fully assessed by Dr Turner, a Specialist Registrar in Forensic Psychiatry. His report is dated 2 July 2002. His conclusions were that the applicant was suffering from paranoid schizophrenia, which is a mental illness within the meaning of the Mental Health Act 1983, and that on the day of the index offence there is evidence that he was suffering from a psychotic illness. Dr Turner also confirmed that were a hospital order to be imposed, then a bed was available at the Scott Clinic for the applicant's continued treatment. It has been confirmed before us today that that bed is still available. Indeed, currently that is where the applicant is. Furthermore, Dr Turner anticipated that with proper treatment and medication the applicant did not represent a significant risk of committing further offences. Dr Turner had been given far more information by the applicant about his state of mind at the time when he committed the offence. It is not necessary to recount in detail the applicant's bizarre fantasies. He clearly suffered from extreme hallucinations. He perceived himself to be the Messiah. The reason he gave for not having disclosed to Dr Boyd his perceptions and his symptoms at the time of the original assessment was: “I was playing religious chess with the devil, and if I told him then people would suffer”.

6. On 26 July 2002, Dr Boyd carried out another assessment. The applicant again explained the reason why he had not told Dr Boyd about the features of his condition at the earlier assessment. He confirmed that it was because he was involved in “a sort of game with the devil”, and that people's souls and lives would be at risk if that fact were to be disclosed. Dr Boyd also concluded that the applicant was suffering from schizophrenia, a mental disorder within the meaning of the 1983 Act; that he was psychotic at the time of the index offence; and that his offending behaviour was at least in part a result of his mental illness. He confirmed that had he been aware of the full nature of the applicant's symptoms when he prepared his original report, he would undoubtedly have recommended a section 37 Hospital Order. However, in the light of the information he then had, he did not feel that the criteria for detention in hospital at that time were met. Like Dr Turner, Dr Boyd considers that the applicant is not violent and that the public are not at risk from serious harm from him. The applicant has complied with his medication and this ensures that he should maintain stable progress.

7. Two questions now arise for this court. The first is whether we should admit this evidence at this stage. The second is, if we do, ought we to interfere with the judge's sentence so as to impose a section 37 Hospital Order?

8. The court is naturally very reluctant to admit fresh evidence which in principle could have been produced at the trial. The power to do so is conferred by section 23 of the Criminal Appeal Act 1968. Subsection (2) sets out particular factors which the court is obliged to consider when exercising a discretion whether or not to admit such evidence. It provides:

“The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to --

(a) whether the evidence appears to the court to be capable of belief;

(b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in these proceedings.”

These are not exhaustive of all the potentially relevant considerations that must be taken into account. The overriding objective in all cases are the interests of justice. Clearly in this case subsections (b) and (c) are satisfied. Subsection (a) is not strictly applicable, but the medical reports from these two expert psychiatrists constitute reliable evidence on which this court is entitled to act if it considers it appropriate to do so.

9. The critical factor here is subsection (d). Is there a reasonable explanation for the failure to produce these reports earlier? We are satisfied that in the circumstances of this case there is. Dr Boyd did not have a full understanding of the applicant's symptoms at the time he made his original assessment. This was because the applicant had failed to disclose them to him. However, he could hardly be blamed for that since his failure to do so was itself the consequence of the very illness from which he was then suffering.

10. We have considered whether the applicant has concocted this story at this stage in the hope that a hospital order may be made which could result in him securing his liberty sooner than he would otherwise have done.

11. We are surprised that he has not. The psychiatric reports have been produced after a detailed and lengthy assessment of the applicant. Moreover, they are supported by what to the layman would appear to be this quite extraordinary conduct from an individual who up to that point was a man of good character. His actions were apparently wholly inexplicable and totally out of character. Further, it was inevitable that he would be caught. The medical evidence does not suggest that his illness could have afforded the applicant any defence to these allegations. However, it seems to us that these new reports constitute powerful evidence which, had they been before the judge, would in all probability have caused him to reconsider the sentence which he imposed.

12. We are satisfied from the reports that the conditions for the imposition of a hospital order, pursuant to section 37 of the Mental Health Act 1983, are satisfied and were satisfied at the relevant time. The applicant was suffering from a mental illness, paranoid schizophrenia, which could be alleviated by his detention in hospital for medical treatment. We have, of course, taken into consideration the circumstances of the particular offence and the applicant's previous good character.

13. In the very exceptional circumstances of this case, and recognising fully the reluctance with which this court in general will accept fresh evidence which could have been adduced before the court at trial, we nonetheless consider that the interests of justice require that we intervene. Accordingly, we first permit this application for leave to appeal against sentence to be pursued out of time. We grant leave and, further, we allow the appeal. We are satisfied that the justice of the case requires that we should quash the sentence imposed by the judge and we substitute in its place a Hospital Order pursuant to section 37.