Staines, R v

This appeal is concerned with a discretionary life sentence combined with a hospital direction and a limitation direction made under s.45A of the Mental Health Act 1983, hereinafter “the MHA.” That section provides as follows: -

“45A Power of higher courts to direct hospital admission

(1)

This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law –

(a)

the conditions mentioned in subsection (2) below are fulfilled; and

(b)

……the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence.

(2)

The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners –

(a)

that the offender is suffering from psychopathic disorder;

(b)

that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and

(c)

that such treatment is likely to alleviate or prevent a deterioration of his condition.

(3)

The court may give both of the following directions, namely –

(a)

a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a “hospital direction.”)

(b)

a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a “limitation direction.”)

(4)

A hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court.

(5)

A hospital direction and a limitation direction shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment, or of some other person representing the managers of the hospital that arrangements have been made –

(a)

for his admission to that hospital; and

(b)

for his admission to it within the period of 28 days beginning with the day of the giving of such directions;

and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

(6)

If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency of other special circumstances it is not practicable for the patient to be received into the hospital specified in the hospital direction, he may give instructions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified.

(7)

Where such instructions are given –

(a) the Secretary of State shall cause the person having the custody of the patient to be informed; and

(b)

the hospital direction shall have effect as if the hospital specified in the instructions were substituted for the hospital specified in the hospital direction.

(8)

Section 38(1) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction.

(9)

A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion.

(10)

The Secretary of State may by order provide that this section shall have effect as if the reference in subsection (2) above to psychopathic disorder included a reference to a mental disorder of such other description as may be specified in the order.

(11)

An order made under this section may –

(a)

apply generally, or in relation to such classes of offenders or offences as may be specified in the order;

(b)

provide that any reference in this section to a sentence of imprisonment, or to a prison, shall include a reference to a custodial sentence, or to an institution, of such description as may be so specified; and

(c)

include such supplementary, incidental or consequential provisions as appear to the Secretary of State to be necessary or expedient.”

The section was inserted by s.46 of the Crime (Sentences) Act 1997 and has been in force since 1 October 1997. Orders made under the section are sometimes called “hybrid” orders. We were told that orders have only rarely been made under this section. This appeal raises, among other questions, an issue as to what is the proper approach of this court, acting as it can solely in an appellate capacity, where it is alleged that evidence and developments since the trial or sentencing have brought about a situation which, had it been known or appreciated at the time of sentencing, would or might have led to the imposition of a hospital order under s.37 of the MHA, coupled with a restriction order under s.41, rather than the imposition of a prison sentence combined with directions under s.45A.

Paula Staines was born on 12 March 1981. The story of her life is one of unmitigated and profound tragedy. It is wholly unnecessary that we should go into detail. She suffered physical abuse as a small child and was taken into care at the age of nine. Subsequently that Care Order was revoked (against the advice of a Clinical Psychologist) only to be replaced in due course by a further Care Order, fostering and various secure accommodation orders. Drug and alcohol abuse began in her early teens. A career of delinquency began with convictions for burglary and shoplifting in the Juvenile Court in January 1994 when she was twelve years old. In that year she was assessed by a Child and Adolescent Psychiatrist who recommended a residential therapeutic community. In September 1995, by which time she had accumulated sixteen further convictions, mostly for theft but one for common assault and one for criminal damage, she was diagnosed as having a socialised conduct disorder and reactive attachment disorder of childhood. She was seen as moving towards a diagnosis of adult borderline personality disorder. In May 1996 there was a further diagnosis of a conduct disorder likely to turn into a borderline personality disorder. Descent of the spiral continued, with further offences of dishonesty and another assault in 1997. In 1998 she was convicted of causing grievous bodily harm to Stephen Widger, a lonely and troubled older man who had befriended her. At the time she was staying in his flat. She had consumed alcohol, tranquillisers and solvents before committing the offence. She attacked Widger by kicking him in the head and chest before picking up a knife and stabbing him in the back, shoulder and lower arm. He managed to get the knife from her and they went to hospital together where his wounds were stitched. At this time a diagnosis was made of post traumatic stress disorder following her rape by an older man when she was thirteen years old and the death of a friend by fire the previous year. She spent some time in Holloway on remand after commission of the offence but ultimately a probation order was imposed with condition of residence. 1998 saw further offences of dishonesty and in June 1999 she was convicted of assault occasioning actual bodily harm, for which she was sentenced to nine months imprisonment in a Young Offenders Institution. Following her release from that sentence she got in touch with Widger again. She obtained a flat near to his and it seems they sometimes met in his flat, sometimes in her flat. On the 29 February 2000 she killed Stephen Widger in her flat in gruesome and bizarre circumstances. She inflicted numerous stab wounds to his head and body with a kitchen knife. She glued together his eyelids and lips with superglue. She went to Beachy Head where she was picked up by police officers. She told them that since she was five years old she had heard voices which told her to do bad things. She said that she had done a bad thing. The police took her to a police station for a MHA assessment. A doctor and a social worker thought that she was suffering from a personality disorder but was not psychotic at the time. She then denied hearing voices but stated that she did have bad dreams. The police took her home but at her request did not enter her flat. Twenty minutes later she called the police and they returned to her flat. She waited for them outside and when they arrived she said “Well I didn’t mean to do it. He’s in there.” Asked what she meant she said “The voices; I’ve really done it.” The police found the body. Attempts had been made to clean blood stains from the walls using cleaning material which she had purchased the day before as she had the knife and the superglue. Blood stained clothing was found in the bath. When arrested she said “He’s not dead, not really. He’s going to come out.” Later she said “The voices; I had to. He’ll be alright…..I had to superglue his eyes, his mouth and his ears. I didn’t mean to do it. I didn’t want to do it. They told me to care for him, to look after him and to give drink to him. They told me to tell him that there was somebody else in the room with us, and I kicked him in the stomach and stabbed him in the back and the arms and I slashed his throat……..”

She was charged with murder. Upon arraignment on 29 September 2000 at Lewes Crown Court she pleaded guilty to manslaughter by reason of diminished responsibility. The matter was put over for reports without the Crown indicating whether the plea was acceptable.

The matter came back before His Honour Judge Brown on 12 December 2000. The Crown had by now commissioned a report dated 14 November 2000 by Dr Philip Sugarman, a Consultant Forensic Psychiatrist. He attended court to give evidence. For the Defendant Dr Fiona Mason attended to give evidence. She too is a Consultant Forensic Psychiatrist. It is not entirely clear to us which of her reports was before the court although nothing turns on this. She had prepared a report dated 3 April 2000 whilst the Defendant was on remand in Holloway prison. The purpose of the report was to recommend an urgent transfer to Broadmoor Hospital pursuant to s.48 of the MHA. The Defendant was duly transferred to Broadmoor Hospital on 26 April 2000 by order of the Secretary of State under s.48 of the Act, and he also made a restriction order under ss 49 and 41of the Act. It seems that the court also had before it a report of Dr Mason dated 25 September 2000 which we have not seen. The learned Judge also referred to having read a relatively short report faxed to the court that morning from Dr Mason and Dr Susan Iles. Dr Iles is also a Consultant Forensic Psychiatrist and was and is now the appellant’s Responsible Medical Officer at Broadmoor Hospital. She had been responsible for the appellant’s initial assessment. We think that the learned Judge had before him Dr Iles’ report of 11 September 2000.

Mr Katz QC for the Crown indicated to the Court that the plea of guilty to manslaughter by reason of diminished responsibility was acceptable. In doing so he indicated that, whilst recognising that sentence was a matter for the Court, the Crown was fortified in the view that acceptance of the plea was the proper course by giving consideration to Dr Sugarman’s recommendation in his report for an order under s.45A of the MHA. The learned Judge indicated that acceptance of the plea by the Crown was not something with which he would seek to interfere, whereupon Dr Sugarman and Dr Mason were called to give evidence.

Both psychiatrists agreed that there was evidence to support a defence of diminished responsibility, although on different bases. Dr Mason thought that the Defendant was suffering from at least a psychopathic personality disorder, and that this alone satisfied the requirements of s.2 of the Homicide Act 1957. Dr Sugarman thought that she suffered from the pathological disorder known as Borderline Personality Disorder. He thought that this would not quite qualify as an abnormality of mind within the meaning of s.2 of the Homicide Act 1957, not being a disease or entirely attributable to injury. It is possible that he overlooked that a further qualification is that the relevant abnormality of mind arises from any inherent causes. However that may be he continued: -

“Consequently in my opinion the possibility of a justifiable defence of diminished responsibility turns on the presence or otherwise of a superimposed condition. The presence of command auditory hallucinations at the time of the offence, probably part of a schizophrenic illness at an early stage, would in my opinion be regarded as an abnormality of mind induced by disease. The commanding nature would also be good reason to regard the defendant as suffering from a substantial impairment of mental responsibility at the time of the killing. It is confusing that she has now retracted her account, but on balance I am inclined to believe her report at the time to the police officer that she was acting under the influence of voices. Consequently it is my opinion, after careful consideration, that the Defendant is entitled to a defence of diminished responsibility.”

In his oral evidence to the Crown Court Dr Sugarman recognised that the Defendant’s personality disorder amounted to a psychopathic disorder. He noted in his report that in interview she had consistently and adamantly insisted that she would not take medication or cooperate in treatment and that she wanted to return to prison. In his report he had preferred the view of the treatment team at Broadmoor that the Defendant was indeed treatable. However in his oral evidence he explained his preference for an indeterminate sentence combined with a hospital and restriction direction under s.45A of the MHA rather than the more traditional hospital and restriction order under ss.37 and 41 of the MHA. His concern was that since “the more substantive and undoubted” condition from which the Defendant suffered was psychopathic there came into play the treatability criterion. His concern was that should a traditional hospital order with restriction be imposed she might thereafter permanently refuse to engage in treatment with the possible result that she could become entitled to secure her discharge into the community by order of the Mental Health Review Tribunal (hereinafter “MHRT”) on grounds of her untreatability. He pointed out that treatability for psychopathic disorder depends in large part on attending individual or group therapy, in which cooperation is essential. A hospital direction under s.45A would carry with it the safety net that she could be returned to prison should she refuse to engage in treatment or should the treatment be unsuccessful, thereby ensuring the protection of the public whilst at the same time giving the opportunity for treatment to be attempted. Dr Sugarman justified his concern that she might not accept treatment by reference to various matters.

Dr Mason for her part in her oral evidence to the Crown Court said that her conclusion was that the Defendant was suffering from a psychopathic disorder and that she required treatment in conditions of maximum security. She accepted that the Defendant had been refusing treatment and insisting that she wished to return to prison. She continued: -

“I believe that Miss Staines is a very complex young woman, who has had a very troubled life and presents with a range of pathology. I have no doubt that she suffers from a personality disorder and she may or may not be also developing a severe mental illness as well. There is indication of psychosis, although it seems that it was brief at the time of the offence, but there is reasonable evidence relating to that. I actually think that Miss Staines’ condition will respond to treatment. I think she is caught in a position whereby for a number of years she has been assessed by various psychiatrists, various units, all of whom have clearly indicated that she requires help and yet that help has not really been forthcoming for her. I think she is in a position now where whilst she is saying she will refuse all treatment I think in a way, and she has told me this, that it is easier for her to try and deal with matters by cutting off, trying to refuse treatment and seeking a return to prison rather than learning to trust us and facing up to all the difficulties that she has; I think that is a very painful and frightening prospect for her. But I have interviewed her specifically about this and I think that both myself and, in fact, the team who have assessed believe that we will be able to help her and that she will engage in treatment with us and that will have a beneficial effect as well as preventing a deterioration. I recommend the Hospital Order with restriction because I believe that treatment will take some considerable time, will require expert intervention over that time period, and I fear for her if a return to prison is contemplated. I saw her in Holloway prison and I asked for a very urgent transfer to Broadmoor, partly because I felt others were at risk from her within the prison setting where the understanding of her problems was not as great as I would hope it is at Broadmoor, so I feared for others and I also feared for her as well; and she was in really quite a disturbed state when I saw her in prison, and at one point in the interview really lost control in response to certain triggers during the interview, and I could see that within a prison setting, where her particularly difficult pattern of behaviours was not particularly understood, that she could quite rapidly become a risk either to herself or to other people. So it is my opinion that on clinical grounds, and this is the opinion of her treatment team as well at the current time, that her needs would best be met through treatment in hospital and that treatment should be long-term and subject, obviously, to a restriction order without limit of time, with a view to recognising the seriousness of the offence and the need for the protection of the public.”

In cross examination Dr Mason explained that her objection to a s.45A hospital and limitation direction with an underlying prison sentence was her fear that the Defendant might in such circumstances believe that she had the option of returning to prison and that in consequence her treatment might actually be delayed and impeded by her believing that she had that option and constantly applying to Mental Health Review Tribunals in order to argue that she should be returned. She also accepted that, if a s.37 hospital order were imposed, there was a risk, a real risk, as Dr Sugarman feared, that she might not engage in treatment and so ultimately secure her release into the community. The difference of opinion resolved itself to how great that risk was. The view of the Defendant’s treatment team at Broadmoor was clearly that she would prove treatable over the long-term and that either her condition would be alleviated or, at the least, prevented from deteriorating.

In his sentencing remarks the learned Judge said this: -

“Your plea of guilty to manslaughter has been accepted by the Crown on the grounds of diminished responsibility. Diminished responsibility means exactly what it says; it reduces your responsibility, it does not extinguish it, and in my view you still bear a considerable degree of responsibility for this savage killing. The medical reports indicate that you are suffering from a psychopathic disorder and that the nature and degree of that disorder makes it appropriate for you to be detained in a hospital for medical treatment, and further, that such treatment is likely to alleviate or prevent your condition from getting any worse or deteriorating. At this point in time, bearing in mind this offence, your record of earlier violence and all of the matters that have been dealt with in the reports, it is considered that you pose a considerable risk of serious danger to the public, that is, if you were allowed your freedom. It is not possible at this stage to know when, if at all, it would be safe to release you.

I had initially considered a Hospital Order under the provisions of section 37 and 41 of the Mental Health Act. I have listened to the arguments presented to me on both sides. In my view, this court needs to ensure that if you are found to be incapable of responding to hospital treatment then you are returned to prison until such time as it is considered safe to allow you back into the community. The sentence, therefore, that I propose to pass upon you is one of custody for life. Further, I make what is known as a hospital direction and a limitation direction under section 45A of the Mental Health Act. That means this: that instead of going to prison today you will be taken to Broadmoor Hospital and you will be subject to a restriction, as set out under section 41 of the Mental Health Act 1983, without any limitation of time.”

The judge then indicated that the specified period in respect of the discretionary life sentence would be four years being half of the appropriate determinate sentence less time spent on remand.

In June 2004 i.e. some three and half years after imposition of sentence, the Defendant issued an application for leave to appeal against sentence and requested the necessary extension of time of three years twenty four weeks and one day in which to do so. The Grounds of Appeal then were as follows: -

“ It is submitted that the life sentence and s.45A Mental Health Act order imposed upon the Applicant should be quashed and that a hospital order under sections 37/41 Mental Health Act should be substituted for the following reasons:

(A)

s.45A is designed to apply to offenders with psychopathic disorders who may be found incapable of responding to treatment;

(B)

There is now substantial evidence that:

(i)

Ms Staines is treatable and engaging in the treatment regime in Broadmoor Hospital, thus proving wrong the concerns expressed by both Dr Sugarman and the sentencing judge;

(ii)

Ms Staines is in fact suffering from a mental illness, in addition to the psychopathic disorder, and that this illness, in its early stages, was highly likely to have played a part in the index offence and reduced her responsibility further than thought at the time of sentencing. The evidence now available in support of this is far stronger than the tentative conclusions of the psychiatrists at the sentencing hearing.

(C)

If a hospital order under sections 37 and 41 were to be made on the basis of both her personality disorder and mental illness she would be detained in hospital so long as her mental illness is of a nature and degree to make it appropriate to do so. [s.37 (2)(a)(i) Mental Health Act 1983.]

(D)

This would meet the concerns expressed by Dr Sugarman and the judge that Ms Staines will not be released simply because she was found to be incapable of responding to treatment.

(E)

It would also mean that Ms Staines would not face the prospect of a return to prison which she could use as a reason not to engage in therapy, or that would have a detrimental effect on her mental state were she to be so returned.”

After that application had been made a MHRT met to consider Ms Staines’ case. That tribunal decided on 1 July 2004 that it was satisfied that Ms Staines was suffering from mental illness as well as psychopathic disorder of a nature and degree which made it appropriate for her to be liable to be detained in a hospital for medical treatment. The tribunal therefore reclassified Ms Staines’ mental disorder from psychopathic disorder to psychopathic disorder and mental illness. The tribunal noted that it was the opinion of the doctors who gave evidence that Ms Staines was suffering from mental illness at the time of the index offence. It was reported that as time had passed, and as the appellant had gained trust in her carers, so she had been able to open up about her psychiatric symptoms, which were considered genuine, and which supported the additional diagnosis. By letter to the Criminal Appeal Office Ms Staines’ solicitor suggested that this determination demonstrated that a hospital order would have been justified at the time of sentencing and further demonstrated that a s.45A order was and is inappropriate.

In August 2004 the Single Judge granted the necessary extension of time and gave leave to appeal. We heard the appeal on 14 December 2005, five years and two days after the sentence was imposed. No doubt the delay between the application for leave in June 2004 and the hearing of the appeal should not in any way redound to the detriment of the appellant. However the time elapsed since sentencing throws into stark relief the nature of the exercise which we are being asked to undertake.

A further feature of that exercise only became fully apparent to us during the course of the hearing although in fairness to Mr Taylor, who appeared for the appellant, it was adumbrated in his skeleton argument. We are indebted to Mr Taylor for the clarity of his arguments and the skilful economy with which they were presented. This additional feature, not foreshadowed in either the Grounds of Appeal or the Re-Amended Grounds of Appeal which were before us, was that it is suggested that in the light of the new evidence about mental illness the judge would also have reconsidered his view of the role played by the appellant’s mental disorder in diminishing her responsibility and would have accepted that the inter-play of the personality disorder and mental illness made a greater contribution to her offending behaviour than had been thought at the time of sentencing. Thus the suggestion was that the appellant’s culpability had not been sufficient to attract a sentence of imprisonment, still less a life sentence with the stigma which attaches thereto. This issue surfaced under a different guise in oral evidence to us from Dr Iles who made three distinct points in relation thereto. First Dr Iles said that the appellant had made progress in hospital notwithstanding the underlying prison sentence but that she, Dr Iles, still feared that its persistence gave to the appellant an option not to engage in treatment and to go back to prison of which she might seek to avail herself particularly when the therapy became difficult, stressful and distressing. Secondly she said that the appellant herself, as did others in a similar position, had a very real fear that at the end of years of successful treatment in hospital she might have to return to prison before she could secure her final release into the community. This could come about because her ultimate release would be a matter for the Parole Board not for the MHRT alone. A return to prison conditions following treatment deemed sufficiently successful to justify release from hospital would be at best inappropriate and at worst, and very likely, disastrous. Thirdly there was concern that in any event the monitoring and other conditions which would be applicable in the event of a release on life licence would be different from the supervisory conditions which would obtain in the event of a conditional discharge by direction of the MHRT. As Dr Iles put it “A life licence is a different thing to be under.”

It is convenient at the outset to deal with a submission by Mr Taylor that the learned Judge failed properly to investigate the medical evidence. He submits that had the learned Judge delved deeper and investigated further the outcome should have been different. He submits that there was before the Judge evidence of mental illness which should have led to him taking a different view as to culpability and a different view as to long-term treatablity, with the result that no prison sentence would have been imposed but simply a s.37 hospital order with a s.41 restriction. In our judgment this is an unfair criticism of the learned Judge who appears to us to have dealt with the matter with care and sensitivity and moreover in a manner which was entirely consistent with the approach of the two very experienced counsel who appeared before him, notwithstanding that Mr Hacking QC who then appeared for the appellant did everything he properly could to persuade the learned Judge to adopt just that course which it is now said that he ought to have adopted. The Judge had before him evidence from Dr Sugarman, Dr Mason and Dr Iles. It is true that Dr Sugarman’s report is to some extent internally inconsistent. He said that there was limited evidence of a superimposed mental illness such as schizophrenia, and his acceptance that the appellant was entitled to a defence of diminished responsibility was dependent upon the presence of command auditory hallucinations at the time of the offence, “probably part of a schizophrenic illness at an early stage.” He recognised that in some diagnostic systems such symptoms alone would be sufficient to make a diagnosis of schizophrenia. However confusingly the appellant had when interviewed by Dr Sugarman retracted her account of the voices, possibly for ulterior motive connected with the need to resolve the question whether she should be retained at Broadmoor or returned to prison. Similar considerations militated against confidence in the long-term treatability of the psychopathic disorder, hence the recommendation for a hybrid order. Dr Sugarman was not cross examined further than to ascertain that he was conscious that Dr Mason and Dr Iles at Broadmoor took a different view as to the appropriate disposal. In her report of 3 April 2000 Dr Mason said that she would not disagree with the diagnosis of personality disorder with antisocial and borderline traits but thought that the patient may in fact be developing a psychotic illness in addition to suffering a disturbed personality. We have already set out her oral evidence. Her conclusion as to mental illness, whether at the time of the offence or then in a state of development, was tentative. That was entirely consistent with the conclusion of Dr Iles, leading the Broadmoor team, who included in her report of 11 September 2000 the following: -

“Her prognosis also depends on whether she progresses to develop a formal mental illness superimposed on her pre-existing personality disorder.”

In her oral evidence before us Dr Iles said that with the information the Broadmoor doctors had, particularly what they had learned over the last few years, there were clear cut indicia of schizophrenia, which was very probably present at the time of the offence. However she accepted that for the purpose of the court appearance in December 2000 there had been a preference to stick with the unequivocal diagnosis of psychopathic disorder. She accepted that nobody had been unequivocally asserting in reports before the Court in December 2000 that the appellant had at the time of the offence suffered or indeed was then suffering from mental illness. It was she said like a jigsaw puzzle of which the Broadmoor doctors had now found the last pieces. Indeed in her report of 10 May 2004 Dr Iles noted: -

“It should be emphasised here that at the time of Ms Staines’ trial, none of the psychiatrists who had examined her felt able to recommend that her mental disorder should be classified as mental illness in addition to psychopathic disorder.”

In these circumstances we reject the submission that the learned Judge ought on the basis of the evidence before him to have reached a different conclusion on culpability and to have imposed a hospital order alone, albeit with restriction, in reliance upon the presence of a mental illness rendering appropriate detention in hospital for treatment.

This conclusion means that we must turn to consider whether in the light of the evidence now available the life sentence and order made under s.45A of the MHA should be quashed and orders under ss.37 and 41 of MHA substituted therefor. Mr Taylor posed the question for this court now as being “had the Judge known what this court now knows should he have made a hospital order?” We accept that, under s.11(3) of the Criminal Appeal Act 1968, we have jurisdiction to proceed in that way but we are far from sure that the enquiry suggested by Mr Taylor is the correct one.

The approach urged upon us by Mr Taylor necessarily takes as its starting point the proposition that a finding of a mental illness subsisting at the time of commission of the offence is simply and in itself incompatible with the imposition of a prison sentence. We say this because whilst it is suggested that a finding of mental illness, superimposed upon the acknowledged psychopathic condition, would have further reduced the appellant’s culpability, it is not suggested that it would altogether have extinguished it. It is not suggested that the appellant was either unfit to be tried or not responsible for her conduct because of insanity. The learned Judge did have before him a picture, admittedly incomplete, wherein mental illness may have contributed to the appellant’s condition at the time of the offence. However the evidence before us, which was contentious, at its highest offered support only for the conclusion that the mental illness and the personality disorder co-existed at the time of the offence. Furthermore, in her report of 10 May 2004 Dr Iles observed: -

“Although it is highly likely that (i) Ms Staines was suffering from the earlier stages of a mental illness at the time of the index offence; (ii) that mental illness did influence the index offence in that it would appear to have been carried out as a result of a train of abnormal and psychotic thinking, there is nothing to suggest that the mental illness would have reduced her culpability for the offence beyond that of diminished responsibility. That is, there would appear to be no grounds for an insanity plea.”

We were not offered any guidance as to how we could conduct a value judgment as to the degrees of responsibility or culpability which may be comprised within the concept of diminished responsibility. Section 2 of the Homicide Act 1957 offers no guidance other than that the impairment of mental responsibility for the acts in doing the killing must be substantial. Furthermore Lord Parker CJ in R v. Byrne [1960] 2 QB 396, one of the earliest cases after the enactment of the Homicide Act, remarked that whether impairment of the mental responsibility of the accused for his acts can properly be called “substantial” is a matter on which juries may quite legitimately differ from doctors. The learned Judge expressed his view that the appellant “still [bore] a considerable degree of responsibility for this savage killing.” The evidence now before us from Dr Iles, even if we accept it and take it at its highest, offers us no material upon which we could reach any other conclusion. It does not follow that a person who is unquestionably suffering from a mental illness as well as a personality disorder necessarily has less “mental responsibility” for his actions than does one who suffers from a personality disorder alone. Even if it did, the evidence offered us no yardstick by which to measure such diminution.

Any discussion of the proper approach to the sentencing of mentally ill offenders must now start with the decision of the House of Lords in R v. Drew [2003] 2 Crim.App.R 371. That case concerned an offender suffering from schizophrenia who pleaded guilty to an offence of causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861.Because he had five years earlier been convicted of two further offences of causing grievous bodily harm with intent s.109 of the Powers of Criminal Courts (Sentencing) Act 2000 when read with s.37 of the MHA as it then stood precluded the making of a hospital order and required the imposition of a life sentence in the absence of exceptional circumstances. Such a sentence was imposed, albeit with regret, and within eight days of sentence the Home Secretary, acting with expedition, authorised the transfer of the offender from prison to a secure psychiatric hospital under ss.47 and 49 of the MHA. The offender appealed on the ground that it was wrong in principle, as well as contrary to Article 3 of the European Convention on Human Rights, to impose a punitive sentence on a mentally ill defendant. The appeal failed both in the Court of Appeal and in the House of Lords. Lord Bingham delivered the considered opinion of the Judicial Committee. At p.385 of the report there appears this passage: -

“17

It may be accepted that a sentence of life imprisonment, passed under s.109 of the 2000 Act, is, in part at least, punitive in purpose and effect. The minimum term specified by the judge to be served before release is imposed as retribution for the crime committed. It may also be accepted as wrong in principle to punish those who are unfit to be tried or who, although fit to be tried, are not responsible for their conduct because of insanity: see, generally, R v. H [2003] 2Cr App R 25, [2003] 1 WLR 411, [2003] UKHL 1. But the appellant did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another. The Recorder of Cardiff did not regard the appellant as other than criminally culpable. Had he done so he would not have specified a minimum term based on a notional sentence of eight years. The appellant’s mental illness could properly be relied on as mitigating the criminality of his conduct but not as absolving him from all responsibility for it. Mr Davies laid stress on the stigma attaching to a sentence of life imprisonment, which he criticised as unfair in the case of a mentally-disordered defendant such as the appellant. It is of course true that conviction of serious violent crime carries a stigma. But the appellant will have been stigmatised less by the sentence passed upon him than by his voluntary admission of guilt.

In the light of those observations of Lord Bingham we could not conclude, even if we accepted Dr Iles’ evidence at its highest, that a prison sentence was here necessarily inappropriate. Drew pleaded guilty to an offence an essential ingredient of which was an intention to cause grievous bodily harm to another. This appellant, whilst invoking the special category of mitigating circumstances afforded by s.2 of the Homicide Act, nonetheless entered a plea in which intention to cause death or grievous bodily harm was an ingredient, which necessarily asserted her fitness to plead, which was inconsistent with her insanity and which acknowledged that she bore some responsibility for the offence, reduced, but not wholly extinguished.

We turn however to the next limb in Mr Taylor’s argument which is that the evidence now establishes that the appellant was at the time of the offence suffering from a mental illness in consequence of which a s.45A order is inappropriate, and would have been inappropriate had this co-existence of conditions been fully made out at the time. Here the premise is that s.45A of the MHA is designed to apply only to offenders with psychopathic disorders which may be found incapable of treatment and that an order thereunder is inappropriate for a person found to be suffering also from a mental illness. It is suggested that in such circumstances an order under s.45A is not simply inappropriate but wrong in principle. We do not accept that premise as correct. In Drew at pp.382-383 Lord Bingham set out paragraphs 8.12 to 8.14 of the White Paper “Protecting the Public: the Government’s Strategy on Crime in England and Wales,” CMD 3190 March 1996. Chapter 8 dealt with Sex Offenders and Mentally Disordered Offenders.

“8.12

The Government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection for the public and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a “hybrid order” for certain mentally disordered offenders for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order would enable the courts, in effect, to pass a prison sentence on an offender and at the same time order his immediate admission to hospital for medical treatment.

8.13

The hybrid order, together with other proposals amending the detail of the Mental Health Act 1983, would substantially increase the flexibility of arrangements for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular, it would enable the courts to deal with some of the most difficult cases in a way which took proper account of the offender’s need for treatment; the demands of justice; and the proper right of other people to be protected from harm.

8.14

Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender’s detention in hospital for treatment, or to sentence him to imprisonment, or to make some other disposal. In some cases, an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirements of sentencing in such cases to be met. Under the order, an offender would remain in hospital for as long as his mental condition required, but if he recovered or was found to be untreatable during the fixed period set by the court, he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorder by the Department of Health and Home Office Working Group on Psychopathic Disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by mental health legislation.”

As Lord Bingham observed legislative effect was given to this proposal by s.45A of the MHA 1983, inserted by s.46 of the Crime (Sentences) Act 1997 as we have already set out. Lord Bingham observed at p.384 that the section only applies to those suffering from psychopathic disorder since the power conferred by subsection (10) to extend the application of the section to other descriptions of mental disorder has not been exercised in England and Wales. Lord Bingham continued: -

“This is perhaps surprising, given that in Scotland s.59A of the Criminal Procedure (Scotland) Act 1995, inserted by s.6(1) of the Crime and Punishment (Scotland) Act 1997, provides for a disposal by means of a sentence of imprisonment and an allied hospital order in any appropriate case, whatever the nature of the mental disorder.”

Finally at p.388 Lord Bingham said this: -

“Had it been open to the Recorder to make an order under s.45A (which it was not, because the appellant was not suffering from psychopathic disorder) it seems likely that he would have done so. This would have avoided the ill effects which the appellant undoubtedly suffered as a result of his confinement in prison. We hope that further thought may be given to exercise of the power conferred by s.45A (10).”

These passages both in the White Paper and in the speech of Lord Bingham, speaking for the whole Judicial Committee, do not in our view support Mr Taylor’s argument, whether looked at simply as an abstract proposition or more broadly on the basis that the presence of the mental illness should serve to allay the judge’s fear that lack of treatability might result in release at a time when there remained a considerable risk of serious danger to the public, and thus militate against a s.45A and in favour of a s.37 order. It might be thought that the genesis of s.45A is not simply the special problem posed by those suffering from psychopathic disorder alone but rather, to use Lord Bingham’s words from paragraph 14 of his speech in Drew at p.382 “the problematical situation [which] arises where neither a sentence of imprisonment nor a hospital order, on its own, appears appropriate in the case of a particular offender and where the mutually exclusive operation of such disposals appears unsatisfactory.” S.45A does not by its terms preclude its application in cases where the offender suffers from both a psychopathic disorder and a mental illness. We do not consider that it is necessarily wrong in principle to use it in such circumstances. The oddity is perhaps that the regime is not available in case of mental illness alone.

We heard evidence on the appeal from both Dr Iles and Dr Noon, a Consultant Forensic Psychiatrist called by the Crown. Dr Iles had prepared a report dated 10 May 2004 from which we have already cited two passages. The thrust of her evidence, both in writing and as she developed it before us, was twofold. First, the Broadmoor team, headed by Dr Iles, is now confident that the appellant suffers from a mental illness alongside her personality disorder, and that this mental illness, in its early stages, is highly likely to have played a part in the index offence. Second, the appellant continued to accept medication for treatment of her mental illness and was engaging in psychological treatment to address issues arising from her co-existing personality disorder. It was not in the appellant’s best interests to continue to have the “option” of returning to prison. Furthermore it would be in the appellant’s best interests and would not put the public at further risk from the appellant in the longer term if there were removed the possibility that she might be returned to prison, so that when eventually she left hospital she could receive appropriate psychiatric and social supervision under the conditions of a restriction order which would allow for a conditional discharge.

Dr Noon is the Consultant Forensic Psychiatrist for the catchment area covering Eastbourne where the appellant lived at the time of the offence. In that capacity he had attended her case conference in Broadmoor Hospital on 5 September 2002. In order to prepare his report for this appeal he interviewed the appellant on 21 April 2005 for approximately one hour in the company of a Forensic Social Worker. Whilst he had of course had access to all the relevant records and reports, it goes without saying that he was at a disadvantage as compared to Dr Iles who had had responsibility for the appellant’s care and treatment at Broadmoor since April 2000 with only one relatively brief interruption. Dr Noon thought it unlikely that the appellant’s mental illness, from which he accepted she now suffers, played a part in the index offence. He pointed out that the ascertainment of the part played by mental illness in an offence is complex, and he noted that the appellant herself had denied that mental illness played any part – she asserted that she was out of control, indulging in alcohol and substance misuse and generally unstable. However Dr Noon went further. He thought it extremely unlikely that the appellant was in fact mentally ill at the time of the offence. He cited in particular the delay between the offence and the onset of new symptoms and the fact that a typically thorough Broadmoor assessment procedure in 2000 failed to find strong evidence of mental illness. He also explained how borderline personality disorder could result in the hearing of voices, a symptom which can be confusing when trying to reach a view as to whether mental illness is present. He pointed out that the appellant’s engagement in treatment had been slow. She found it difficult and distressing to engage in psychotherapy, no doubt because of difficulty in exploring her family history. Engagement with art therapy had been more successful. On the broader point he pointed out that there are subtle yet important differences attending the different regimes, restriction order as opposed to release on life licence. He concluded his report in this way: -

“If an offender is subject to a restricted hospital order, his or her release is determined by the MHRT on the basis of detainability under the MHA 1983. While risk to the public is a factor it is not determinative in the absence of evidence that the patient meets the criteria for detention in hospital under the Act. If an offender receives a life sentence, however, the offender’s release is determined by the Parole Board on the basis of the risk posed by the individual.

The primacy of risk as the basis on which a life sentence prisoner is managed is well illustrated with regards to substance misuse in the community. Whilst on life licence, continued abuse of alcohol or illicit drugs could, in themselves, be sufficient grounds for recall due to their effect on risk. With a restriction order such abuse would have to result in deterioration in mental disorder, or as a minimum a likelihood of deterioration, before recall to hospital would be deemed appropriate. This could have a marked difference in the risk the general public are exposed to, as under a restriction order risk must be related to the patient’s mental disorder.”

Dr Iles explained to us that the diagnosis of psychiatric disorder in an adolescent is fraught with difficulty. Adult labels cannot be attached with confidence. She thought that the disturbance exhibited from the appellant’s early teens onwards were the first signs of what in her late teens was called a borderline personality disorder, crystallising out at the time of her offence. It could be said with hindsight that the mental illness had been apparent in some form in her early teens. It was often true that a diagnosis of mental illness in the early twenties carried with it a realisation that the onset of the illness had been earlier. Dr Iles thought that this was so in this case and that the contribution of the illness to the offence was borne out by (i) the “voices” driving her to act as she did and (ii) the train of abnormal and psychotic thinking to which the appellant appeared to have been subject. It was however the case that the appellant had more recently revealed symptoms such as thought broadcasting which are clearly diagnostic of schizophrenia.

Dr Iles was a conspicuously impressive witness who gave her evidence with great authority and, we might add, with obvious deeply felt concern for what she believed to be the best interests of her patient. Nonetheless we are not persuaded that we should now conclude that mental illness was present at the time of the offence when none of the psychiatrists who examined the appellant felt able to come to that conclusion in 2000.There are, as it seems to us, too many imponderables to permit a confident conclusion to that effect, particularly where the uncertainty derives in large part if not wholly from the reliability which can be attributed to the appellant’s own description of her symptoms from time to time. We also consider that we have been furnished with insufficient material to enable us to resolve the difference of opinion between the psychiatrists. Essentially we were left with disagreement as to the significance of “voices” at the time of the offence and a judgment dependent upon an evaluation of the appellant’s constantly changing description of her symptoms many years previously. This is not a sound basis for upsetting a judgment reached five years ago as to the appellant’s then or recent mental condition. Since therefore we cannot say that we regard it as probable that the appellant suffered from mental illness at the time when she committed the offence, it follows that it cannot be said that the disposal adopted by the learned Judge has been shown to have been wrong. The question whether the presence of mental illness at the time of the offence would have rendered the disposal adopted by the learned Judge wrong in principle does not in the event arise.

This leaves for consideration whether the agreed diagnosis that the appellant now suffers from schizophrenia should itself lead the court to quash the life sentence and s.45A order. Mr Taylor recognised that he was here on weaker ground than if he could show that the mental illness subsisted at the time of the offence, his primary case. In Castro [1985] 7 Crim. App. R. (S) 68 Lord Lane CJ expressed the view that this court will very seldom, in cases of this sort, where mental illness is concerned, interfere with a sentence of imprisonment which was properly imposed in the light of the evidence which was available to the sentencing judge. He pointed out that if mental illness supervenes after the period of imprisonment has started then the Home Secretary has ample power under s.47 of the MHA to transfer the prisoner to hospital, as he had done in that case. The Home Secretary also has power to make restriction orders under s.49, as again he had done in that case. Of course those observations were made before s.45A had been introduced. However it might be thought that the enactment of s.45A reinforces Lord Lane’s approach in a case in which resort has been had to it since by definition an offender made subject to that regime will not be deprived of appropriate treatment in a secure hospital. It might be thought that the combined availability of both the MHRT and the Parole Board to deal with changes in circumstances subsequent to sentencing provides adequate safeguard to the offender, without the need to entertain appeals to this court long after the conclusion of the sentencing process. Furthermore those bodies are better equipped than is this court to have regard in each particular case to, respectively, the particular medical considerations attending an individual offender and, importantly, the extent to which the offender would, if released, present a continuing source of danger to the public and what if any measures can properly be imposed to eliminate, control or monitor as the case may be such risk of danger as remains.

In the case of this appellant two matters were principally urged upon us as justifying our interference so long after the sentencing process. The first was the lingering concern that the appellant might use the “option” of return to prison as a reason not to engage in the more challenging and stressful therapy which resolution of her personality disorder may require. The second was the concern that she should not, at the successful conclusion of treatment, be returned to prison to await a favourable ruling by the Parole Board during which time she could be expected to regress. This point can itself be put in two ways. One, that return to prison would in all probability in itself result in the appellant suffering ill effects. Two, that having to live with the concern that she might be returning to prison could itself retard and imperil the appellant’s recovery. Allied to these considerations was the suggestion that a MHRT can impose more pertinent conditions on release and ensure a more relevant support and monitoring regime than can the Parole Board.

As to the first of these concerns, the possibly counter-productive effect of the option of return to prison, it has of course always been the view of the Broadmoor team that this appellant would prove to be treatable in the long-term and they have been proved to be correct. Progress with the personality disorder may have been slow and intermittent but nonetheless consistent. Should there be any problems with the appellant’s cooperation with treatment for her psychotic illness that could of course be the more readily enforced. We do not consider that it has been demonstrated to us that the continuing “option” of a return to prison is proving so significant an impediment to the appellant’s successful treatment that we should for that reason alone quash her sentence of imprisonment which was, as we have already concluded, properly imposed in the light of the evidence before the sentencing judge. We might add, for the avoidance of doubt, that the mere fact that the appellant has proved treatable does not in our judgment establish that the concerns expressed by Dr Sugarman and by the learned Judge have been proved to be wrong. The thinking which informed the approach of both Dr Sugarman and the learned Judge was that the safety net afforded by a s.45A order was in the circumstances more appropriate than a hospital order. That approach has not in our judgment been shown to be wrong. Indeed in our judgment it both was and remains right.

On the second point we are not satisfied that there is at present a realistic possibility that this appellant would, at the conclusion of successful treatment, be returned to prison. We were told that s.45A orders have been so rarely made (and we would add are perhaps so relatively recently available) that there is as yet no experience on which to draw as to the procedure which will or should be followed in the event of an offender reaching the stage at which release into the community can realistically be considered. Lord Bingham summarised the significant differences between the two regimes in Drew in the following passage at pp.387 – 388 which was concerned with an automatic rather than a discretionary life sentence but is of equal application to the latter:-

“(1)

Defendants sentenced to determinate sentences of imprisonment must be released after serving a specified proportion of their sentences and are subject to recall for a limited period only. If on release they are still dangerous, they are a source of risk to the public.

(2)

Defendants made subject to hospital orders, whether restricted or not, are entitled to release when the medical conditions justifying their original admission cease to be met: R v. London South and South West Region Mental Health Review Tribunal, Ex p. Moyle [2000] Lloyd’s Rep Med 143,150; R (Von Brandenburg) v. East London and The City Mental Health NHS Trust [2002]QB 235,248, para.18. Further, they are liable to recall only on medical grounds. They may be a source of danger to the public even though these medical conditions are not met. While it is possible to argue, as Mr Davies did, about the magnitude of this risk, it cannot be said not to exist.

(3)

A defendant sentenced to life imprisonment under s.109 is not deprived of all his rights. He may appeal against imposition of the sentence. He may appeal against the minimum term specified by the judge. He is eligible for release on the expiry of that term and is entitled to be released if he is no longer a source of danger to the public. But the decision whether it is safe to release him will be taken by the Parole Board, as an independent body acting judicially, which will not be confined to the medical considerations of which, alone, a Mental Health Review Tribunal may take account, and he is liable to recall indefinitely if he appears to present a danger to the public, the grounds of recall, again, being broader than in the case of a restricted patient. In short, an automatic life sentence affords a measure of control not available under the other available orders.”

It will be recalled that Dr Noon in a passage from his report which we have already set out at paragraph 22 above made a similar point about the material difference between the two regimes so far as concerns the approach to risk to the public.

In relation to the procedure to be followed Dr Noon pointed out that the release of prisoners transferred to hospital under s.47 of the MHA offered a parallel. A hospital team treating a prisoner pursuant to a s.47 direction may recommend either a return to prison or a discharge into the community, no doubt in most cases not direct but through the usual range of medium secure and then less secure accommodation. In the usual way, as we understand from Dr Noon, the procedure is for the MHRT if so satisfied to make a recommendation to the Parole Board for release. The offender remains in hospital until such time as the Parole Board makes its decision. Furthermore whilst we understand Dr Iles’ concern that the supervision and monitoring arrangements which typically obtain under a life licence are not the same as the comprehensive social and psychiatric support package and reporting requirements which the MHRT might typically impose as a condition of discharge, we can see no reason why appropriate arrangements cannot be made at the instance of the Parole Board. Dr Iles was aware of no reason why the Parole Board could not impose similar conditions as does typically the MHRT although to be fair it is not her area of expertise, not least because patients are rarely discharged direct from Broadmoor into the community. Dr Noon thought that the follow-up afforded to s.47 prisoners discharged under life licence is to all intents and purposes the same as for those discharged under the Mental Health Act. No relevant limitation on the powers of the Parole Board has been brought to our attention. If there is uncertainty on this score arising out of the relative novelty of orders under s.45A it could perhaps be addressed by executive action. It suffices for us to say that again we are not persuaded that such difference as there may be between the two regimes or any perceived uncertainty as to the procedures which will be followed should lead us to interfere with the orders imposed by the learned Judge.

Their Lordships in Drew plainly thought that it might be that on occasion insufficient weight is given by sentencing judges to the differing conditions governing the release and recall of restricted patients as opposed to life sentence prisoners – see per Lord Bingham at p.388. An order made under s.45A, as it seems to us, carries with it the distinct advantage that both sets of criteria can be taken into account, those which focus on medical grounds and those which focus upon the safety of the public. Whilst we can well understand that return to prison would not so far as can presently be judged be helpful to this appellant we cannot foresee what conditions and considerations may obtain many years into the future, it being accepted on all sides that she will continue to need expert treatment in secure accommodation for the foreseeable future. Dr Iles thought that it was in the appellant’s best interests to be detained under a hospital order with restrictions, so that when eventually she leaves hospital she can receive appropriate psychiatric and social supervision under the conditions of a restriction order, which would allow for a conditional discharge. Dr Iles thought that this can be achieved without putting the public at further risk from the appellant in the longer term. We respectfully disagree. We consider that the regime to which the appellant is currently subject affords to the public a significantly enhanced and desirable degree of protection from the risk of danger from the appellant. We do not consider that it is established that the current regime is providing or will in the future provide a significant impediment to her successful treatment. We see no reason to set aside the life sentence which was properly imposed and which affords a measure of control not available under the order which we are invited to substitute therefor.

We therefore dismiss this appeal.

We respectfully add our voices to those of their Lordships who decided Drew in expressing the hope that further thought may be given to exercise of the power under s.45A(10) of the Mental Health Act so that the additional measure of control afforded by an order under s.45A may be made more widely available than it is at present.