R v Valdo Calocane

In the early hours of the morning of 13 June 2023, Valdo Calocane went out on the streets of Nottingham, having armed himself with knives. He attacked and killed Barnaby Webber and Grace O’Malley-Kumar, two students walking home from a night out. Just over an hour later, he attacked a school caretaker, Ian Coates, who was on his way to work, killed him and stole his van. He then drove to the city centre, where he deliberately drove the van, at speed, into another man, Wayne Birkett, causing him a serious brain injury. Minutes later he deliberately drove into two other victims, Sharon Miller and Marcin Gawronski, also causing serious injury. These were random attacks: none of his six victims were known to the offender.

These offences understandably caused shock and concern throughout the country, and beyond.

On 28th November 2023, in the Crown Court at Nottingham, the offender pleaded guilty to three counts of manslaughter, and three counts of attempted murder.

On 24 January 2024, again at Nottingham Crown Court, the offender was sentenced by Turner J. The unanimous opinion of the medical experts retained by the prosecution and the defence was that the offender was suffering from paranoid schizophrenia at the time when he committed these offences. The judge sentenced the offender to a hospital and restrictions order, pursuant to ss. 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”) (“a hospital and restrictions order”), for each offence, to run concurrently.

The Solicitor General seeks leave to refer these sentences to this Court under s. 36 of the Criminal Justice Act 1988 on the basis that they are unduly lenient. It is said that the judge failed to reflect sufficiently the multiple aggravating features of the offending when arriving at an appropriate minimum term of imprisonment under a life sentence. Further, the judge failed to take sufficient account of evidence to the effect that the offender’s culpability was not extinguished by his mental illness, and the extent of the harm caused. He was wrong not to include a penal element in the sentence. It is submitted that the overall seriousness of the case required the imposition of a life sentence of imprisonment with a hospital and limitation direction pursuant to s. 45A of the 1983 Act (“a hybrid order”).

On 12 June 2023, the offender, who was then in London, inserted a new SIM card into his mobile telephone. At 19:00 he telephoned his brother, Elias Calocane, and told him:

“This is the last time I will talk to you. After this I will leave you alone…Disassociate yourself from me. If anything happens don’t come and see me in hospital…this is not mental illness, I am fine. I’m not ill but there is 2-way communication and 24 / 7 voices in my head, they are intelligent people and they are making threats…I will send you the files I sent to Mum at Christmas… I know what is happening is real.”

The offender subsequently sent his brother some zipped files which included documents which referred to the offender hearing voices in his head and his belief that his brain was under surveillance and being controlled.

That evening, the offender travelled by train from St Pancras station to Nottingham where he was seen alighting from a train at 23:30. CCTV footage shows him leaving the station dressed in a black top and trousers and wearing a black beanie-hat, pulled down so as to cover the top half of his face. He was carrying a holdall and a rucksack which was subsequently found to contain multiple weapons, including three knives and a metal scaffolding pole.

At 03:03 on 13 June 2023 the offender turned off his mobile phone as he walked towards the area of Ilkeston Road where he hid in an alleyway.

Shortly before 04:00 two students, Barnaby Webber and Grace O’Malley-Kumar, both aged 19 years, were walking home along Ilkeston Road following an end-of-term night out in the city centre. They were almost home when the offender emerged from his hiding place and attacked them.

Much of the attack was captured on CCTV footage. The offender took a knife from his bag and repeatedly stabbed Barnaby Webber, inflicting grave injuries which caused him to fall to the ground. Grace O’Malley-Kumar tried to intervene by pushing the offender away and into the road. However, the offender turned his attention to her and, during a fight which lasted over 30 seconds, he repeatedly stabbed her. Having done so, he returned to Barnaby Webber and continued his attack on him as he lay on the ground. The footage shows that, despite her injuries, Grace O’Malley-Kumar tried to follow him but her injuries were too severe and she collapsed. The offender then walked calmly away.

Neighbours, alerted by screams outside, called the emergency services who arrived at the scene within minutes. They found Barnaby Webber and Grace O’Malley-Kumar lying unresponsive on the ground. Both were taken to hospital but their injuries were un-survivable. Grace O’Malley-Kumar was pronounced dead at 04:51. Barnaby Webber was pronounced dead at 05:20.

Post mortem examinations were conducted. The cause of Barnaby Webber’s death was stab wounds to the chest and abdomen. He had suffered 10 stabbing injuries which caused damage to his liver, lung and intestines. A stab wound to the pelvis entered the left common iliac vein resulting in profuse bleeding. This wound, in combination with the others, resulted in death. Barnaby Webber had also suffered defensive injuries to his left arm and hand.

The cause of Grace O’Malley-Kumar’s death was also stab wounds to the chest and abdomen. She had suffered 23 stabbing injuries together with bruising and abrasions. There were injuries to her liver, kidney, the left ventricle of her heart, the pleural cavity including the lungs, the 5^th rib and 6^th rib cartilage and the organs of the abdominal cavity She also suffered defensive injuries to her left arm and hand.

Having killed Barnaby and Grace, the offender walked towards the city centre. At 04:47 he turned his telephone back on and phoned his brother, Elias. He said, ‘This will be the last time I speak to you. Take the family out of the country’. Elias asked him: ‘Are you going to do something stupid?’ The offender replied, ‘It’s already done’.

At 05:01 the offender arrived at Seely Hirst House, a hostel for vulnerable homeless adult men, and tried to get into the building, firstly through a ground floor window and subsequently through a second floor window. However, he was confronted by a security guard and a resident, who punched him in the face, causing him to retreat. He initially walked away up the road but returned two minutes later. Having checked the road for witnesses, he struck a window repeatedly using the metal scaffolding pole from his backpack before walking away. His fingerprints were later identified on a window at Seely Hirst House.

As the offender was trying to smash his way into Seely Hirst House, Ian Coates, aged 65 years of age, was driving past in his Vauxhall Vivaro van on his way to work as a caretaker at a nearby school. He stopped his vehicle within a few hundred yards of Seely Hirst House and was then attacked by the offender. This incident was not captured on CCTV footage. The offender was later to tell a consultant psychiatrist, Professor Blackwood, that he came across Ian Coates in his van, and stabbed him in the driver’s seat before taking the vehicle from him to continue his assault.

A witness in another vehicle saw the offender stabbing Ian Coates multiple times. The offender then took Ian Coates’ van, leaving him for dead, and followed the witness a short distance before driving away in a different direction.

Police and paramedics arrived to find Ian Coates lying unresponsive in the road, bleeding heavily. All efforts to save him were unsuccessful and he was pronounced dead at the scene at 05:52.

Following post mortem examination, the cause of his death was given as stab wounds to the chest. Mr Coates had suffered 15 stab wounds together with abrasions and bruises, The stab wounds had caused internal injuries including to both ventricles of his heart and his right lung, which resulted in profuse bleeding. Injuries to his sternum and fractures to his ribs indicated that these wounds had been inflicted with severe force. He also had defensive injuries to his right thumb and left hand.

The offender drove to the city centre where, by 05:15, there were multiple pedestrians on the pavements.

Wayne Birkett, aged 59 years, was crossing Milton Street in the city centre and had almost reached the opposite pavement when the offender violently changed direction and deliberately drove at him, colliding with him from behind before driving away.

Wayne Birkett’s body was thrown into the air before he landed on the pavement causing injury to his head. He was taken to hospital where CT scans revealed bruising to the brain. In addition, he had suffered fractures of the skull, fractures to the pelvis and a fractured rib. An X-ray revealed an injury to his right shoulder which had become separated from his collar bone. He was discharged to a rehabilitation unit for patients with brain injuries. Although the long term effects of his brain injury are difficult to predict, it is likely that it will have a significant impact upon him for many years. Common long-term complications include, seizures, headaches, changes in personality, depression, tiredness and difficulties with concentration and memory.

About 5 minutes later, at 05:29, the van driven by the offender was spotted by the police as it travelled along South Sherwood Street towards Market Street. The officers activated the blue lights on their marked police car but the offender did not stop and instead accelerated away.

At 05:30 Marcin Gawronski, aged 40 years, and Sharon Miller, aged 44 years, were walking to work. They were on a pedestrian central reservation in Market Street when the offender deliberately changed direction and drove into them at speed from behind, propelling their bodies on to the pavement.

They were taken to hospital. Marcin Gawronski was found to have suffered a fractured rib, a cut to his head and pain over his left chest and right leg. He was admitted overnight for observations and discharged the following day with pain relief. Sharon Miller had fractures to two ribs, a broken toe and a suspected laceration of the spleen. There were large abrasions to her right arm and right thigh and she had pain in her right chest, hip and left foot.

The offender returned to the carriageway and drove towards Radford. By now the van had significant damage to the windscreen and the bonnet, resulting from the collisions with the pedestrian victims.

Officers in a marked police vehicle followed the offender to Bentinck Road, where the offender stopped. He was found sitting in the driver’s seat holding a knife in his hand. When police officers deployed their Tasers, he dropped the knife into the footwell. At 05:35 he was arrested.

The offender’s hands and clothing were bloodstained. Blood on his hands matched that of Ian Coates, and the blood of Barnaby Webber and Grace O’Malley-Kumar was found on his clothing. The knife was also stained with the blood of Grace O’Malley-Kumar and Ian Coates.

A rucksack was recovered which contained a knife, a Gerber survival knife, and a length of scaffold pole.

The van was examined. Although there was impact damage to the bonnet and windscreen, there were no other faults which could have caused or contributed to the collisions. Subsequently, a collision investigator, having considered the evidence, ruled out the possibility that either collision was anything other than deliberate.

The offender was taken to Nottingham Custody Suite. He initially refused to engage and declined to provide samples for toxicology. At 16:00 he was assessed to be fit for interview in the presence of an Appropriate Adult but throughout subsequent interviews he made no comment to all questions.

The offender was born on 4 September 1991. He was therefore aged 31 at the time of the offences and is now aged 32.

He was born in Guinea-Bissau and came to the United Kingdom with his family when he was 16 years old, settling in Wales. He left school in 2011 and worked as a labourer or cleaner. He moved to Birmingham and undertook a Higher Education course, gaining a place to study mechanical engineering at Nottingham University. He completed his course and obtained a class 2:1 degree in June 2022.

The offender’s mental health problems do not appear to have started until 2019, and he has no previous convictions recorded against him.

During the course of proceedings, the offender’s mental health was assessed by the following consultant forensic psychiatrists, whose reports were before the Court:

In addition, Dr Richard Latham was instructed on behalf of the prosecution to review these assessments, providing a report dated 23 December 2024. Dr Mirvis, the offender’s treating clinician at Ashworth High Secure Hospital, also provided a report prior to sentence, dated 14 January 2024.

These reports provide a detailed history of the offender, which can be summarised as follows:

The psychiatric opinion evidence was largely agreed and can be summarised as follows:

As to disposal, those psychiatrists who expressed an opinion, namely Professor Blackwood and Drs McSweeney and Mirvis, agreed that a hospital order with restrictions was appropriate. The views they expressed, in summary, were as follows:

The offender was charged on 16 June 2023 and appeared before the Nottingham Magistrates’ Court on 17 June 2023, when his case was sent to the Crown Court. The Defendant gave no indication as to plea but indicated that the issue was ‘fitness to plead’.

On 28 November 2023 the case was listed for a plea and trial preparation hearing when the offender was arraigned. He was charged with the murder of Barnaby Webber, Grace O’Malley-Kumar, and Ian Coates, and with the attempted murder of the other three victims. On counts 1 – 3 he pleaded not guilty to murder but guilty to manslaughter. On counts 4 – 6 he pleaded guilty. By that stage psychiatric reports were available from Dr McSweeney, Professor Blackwood and Dr Shaffiullha. As a result of concerns raised by members of the bereaved families, the prosecution applied for an adjournment to obtain a further report from Dr Latham, who was asked to review the psychiatric evidence.

On 19 December 2023 the prosecution indicated that the offender’s pleas of not guilty to murder but guilty to manslaughter were acceptable. The matter was adjourned for sentence administratively.

A number of victim personal statements were put before the Court. The key points included the following:

The prosecution submitted at the sentencing hearing that a sentence with a significant penal element was called for, and that the appropriate disposal was by way of a sentence of imprisonment for life with a hybrid order.

It was submitted on behalf of the offender that a hospital order with restrictions was the appropriate disposal.

In his sentencing remarks, the judge described the offender’s actions as sickening crimes which shocked the nation and wrecked the lives of his victims. He described the offender as an intelligent man who had, in 2019, started to show symptoms of mental disorder. He said that he had considered the reports of five distinguished consultant psychiatrists and heard evidence from Professor Blackwood and Drs McSweeney and Mirvis but noted that he was not bound by their evidence. He referred to key parts of the reports. He concluded that the prosecution had been right to acknowledge that the offender’s mental health condition satisfied the requirements of the partial defence of diminished responsibility on counts 1 – 3, thus leading to the acceptance of a plea to manslaughter. The defence of diminished responsibility did not apply to attempted murder.

The judge noted that it was the unanimous conclusion of the relevant experts that but for the offender’s schizophrenia he would not have committed these offences. He had no other motive for committing them. There was no evidence that the offender was liable to be violent prior to the onset of his condition. He had no relevant religious, ideological or political affiliations. He believed that voices, with the power to harm his family if he failed to comply, were controlling him. He remained under that impression and believed that he did not suffer from any mental disorder at all. The offender’s failure to take prescribed medication was as a consequence of his mental disease, rather than a rational choice. The preparatory acts identified by the prosecution were also governed by his delusions. It followed that, notwithstanding the extreme gravity of his crimes, the level of responsibility the offender retained was at the lower end.

He noted that the starting point in the Sentencing Council Definitive Guideline on Manslaughter by reason of Diminished Responsibility for a single offence was 7 years’ imprisonment (with a range of 3 – 12 years). He said that a very significant upward adjustment would be required to take account of the number of victims and the three offences of attempted murder: a life sentence would be appropriate. An appropriate minimum term of imprisonment would be thirty years before a reduction of one third to reflect the offender’s guilty pleas, and of a further third to reflect what would have been the date of eligibility for parole in respect of a determinate sentence. The minimum term of imprisonment would therefore have been 13 years and 4 months.

The judge said that the offender was plainly dangerous. This factor needed to be reflected in the Court’s approach to sentence and provided relevant context to the appropriateness of a mental health disposal. It was undoubtedly the case that the offender was currently suffering from a mental disorder, namely paranoid schizophrenia, for which he required treatment. It was necessary and appropriate to make a hospital order. In considering the extent to which punishment was required, the court bore in mind the devastating impact of the offending. The judge noted that the diagnosis of treatment resistant schizophrenia meant that it was very likely that the offender would never be released.

The sentencing options were limited to a hospital and restrictions order or a hybrid order. The judge reminded himself of the importance, where appropriate, of reflecting a penal element in the sentence but noted that, whichever sentence he passed, the offender was unlikely to be released in any event. The judge accepted the evidence of Professor Blackwood who concluded that, because the offender’s risk to others was driven by his psychotic illness, the risk he posed was best managed by forensic psychiatric services. Periods of leave and progress through the secure hospital system would be effected by his responsible clinician in close communication with the Secretary of State; any potential discharge to the community would be subject to the independent consideration of the Tribunal; any release would be subject to conditions, including compliance with medication, and monitoring by a forensic team; and any deterioration in the offender’s mental condition, which was the driver of the risk, would lead to a prompt recall to a psychiatric hospital. The regime under a hospital and restrictions order avoided situations in which the risk posed by the offender might increase, or his mental condition worsen, because of delays in recalling and re-hospitalising him.

By contrast, a period of imprisonment risked non-compliance with medication, a deterioration in the offender’s mental state, and an increased risk to others. The Parole Board would be likely to follow the recommendation of the clinicians and Tribunal as to release. Monitoring would principally be by a probation officer: recall to prison, and subsequent transfer to hospital, might take some time.

In these circumstances, the judge said that the regime which provided the greatest level of protection for the public was a hospital and restrictions order. Under a hybrid order the offender would not be supervised by a team of mental health experts reporting to the hospital and the Secretary of State, but rather by a probation officer who would not be trained to spot the subtle signs of mental health deterioration, or have the powers to intervene to arrest any such deterioration. In the event of a relapse in a prison environment the offender would present a real danger to prison officers and fellow prisoners.

The judge concluded that the proper sentence was a hospital order and, because of the nature of the offences, the offender’s history, and the risk he posed, that order would be subject to a section 41 Restrictions Order.

The maximum sentence for the offence of manslaughter, and for the offence of attempted murder, is life imprisonment. Both are schedule 19 offences for the purposes of section 285 of the Sentencing Act 2020 (life imprisonment) and schedule 15 offences for the purposes of section 279 of the same Act (extended sentences).

Where the offender suffers from a mental disorder, however, the court should consider whether a hospital order under the 1983 Act should be imposed instead. The potential options, in a case like the present, are a hospital order, pursuant to s. 37 of the 1983 Act accompanied, if appropriate, by a restrictions order under s. 41 of the same Act (ie a hospital and restrictions order), or a sentence of imprisonment with a hospital direction and limitation direction, pursuant to s. 45A of the 1983 Act (ie a hybrid order).

A hospital order may be imposed where an offender has been convicted of an offence punishable by imprisonment, other than murder.

The court must be satisfied of the following before it can make such an order:

Pursuant to s. 41, where the court makes a hospital order, the court may also make a restrictions order where:

The effect of a restrictions order is to provide that the Secretary of State’s consent is required before an offender can be discharged, and the Secretary of State’s consent is required before an offender can be granted a leave of absence from hospital or moves hospitals (ss. 41(3)(c) and 42). The Secretary of State also has power to order an offender’s detention or return to hospital after release (s. 42). The responsible clinician must provide the Secretary of State with a report on the offender at least once a year (s. 41(6)). The offender may appeal to the Tribunal, which may order their release (ss. 70 and 73). Such an appeal may only be made once in every 12-month period.

A hybrid order may be imposed by the Crown Court on an offender, over the age of 21, who has been convicted of an offence punishable by imprisonment (other than murder) if:

Under s. 45A, where the period of imprisonment is indeterminate, if a patient’s health improves such that his responsible clinician or the Tribunal notifies the Secretary of State that he no longer requires treatment in hospital under the 1983 Act, the Secretary of State will generally remit the patient to prison under s. 50(1) of the Act. On arrival in prison, the hybrid order will cease to have any effect whatsoever. Release will be considered by the Parole Board in the usual way, after the minimum term has expired. If a s. 45A patient remains in hospital beyond the expiry of the minimum term and the Tribunal notifies the Secretary of State that he is ready for conditional discharge, the Secretary of State may notify the Tribunal that he should be so discharged (s. 74(2)). In that case, the offender would be subject to mental health supervision and recall in the usual way. However, the Secretary of State would, in practice, refer the offender to the Parole Board.

A key difference between a hospital and restrictions order, on the one hand, and a hybrid order, on the other, is that if an offender who is subject to a hospital and restrictions order recovers so that they no longer need to remain in hospital, they will be released into the community. In contrast, if an offender who is subject to a hybrid order recovers such that they can be discharged from hospital, they will be transferred to prison (at least before expiry of the minimum term). The other key difference is that, where an offender is under a hospital and restrictions order, the decision whether they will be released into the community will subject to the consent of the Secretary of State, after consultation with the responsible physician, whereas if an offender is subject to a hybrid order, and has been discharged from hospital, the decision about whether they should be released from prison will be a matter for the Parole Board.

The Sentencing Council Definitive Guideline on Manslaughter by Reason of Diminished Responsibility requires the court to assess the level of responsibility that is retained by the offender for the offending, taking account of the medical evidence and all the relevant information available to the court. The court should take account of the extent, if at all, to which the offender’s actions or omissions contributed to the seriousness of the mental disorder at the time of the offence. The guidelines require the court to consider mental health disposals. In so doing, the court should consider all sentencing options, including a hybrid order, and should consider the importance of a penal element in the sentence, taking into account the offender’s level of responsibility. The court should take into account all relevant evidence, including the psychiatric evidence and the regime on release, and should review whether the sentence as a whole meets the objectives of punishment, rehabilitation and protection of the public in a fair and proportionate way.

Before a hospital order is made under s. 37 (with or without a restrictions order under s. 41), the court should consider:

The Sentencing Council Definitive Guideline on Attempted Murder states that a case will fall into the Lesser Culpability category if the offender’s culpability is substantially reduced by mental disorder. The options of a hospital and restrictions order and of a hybrid order apply to those convicted of attempted murder as they do to those convicted of manslaughter.

The Sentencing Council Overarching Guideline on Sentencing Offenders with Mental Disorders states that culpability may be reduced if an offender was at the time of offending suffering from a mental impairment or disorder, and if there is a sufficient connection between the offender’s impairment or disorder and the offending behaviour. A careful analysis of all the circumstances of the case and all relevant materials is required to determine the extent, if any, that the impairment or disorder be relevant to culpability.

This court has given guidance in a number of cases on the correct approach to be adopted in cases where the appropriate disposal is either a hospital and restrictions order or a hybrid order. Three cases are of particular assistance: R v Vowles [2015] EWCA Crim 45, [2015] 1 WLR 5131; R v Edwards [2018] EWCA Crim 595, [2018] 4 WLR 64; and R v Nelson [2020] EWCA Crim 1615, [2021] MHLR 219.

In Vowles, Lord Thomas, CJ said this:

In Edwards, Hallett LJ, VP emphasised that:

At [12] she stated that a “level of misunderstanding of the guidance offered in Vowles appears to have arisen as to the order in which a sentencing judge should approach the making of a s.37 or a s.45A order and the precedence allegedly given in Vowles to a s.45A order”. She continued:

At [14] she said:

In Nelson, Dingemans LJ said this:

This is a challenge to the decision of a highly experienced judge who was immersed in the procedural history and detailed evidence of the case. His decision was reached after two days of submissions and oral evidence from three appropriately qualified medical experts. 

It is accepted that the judge made no error of principle in his approach.  As it was put fairly in the Solicitor General’s Reference: “[it]is accepted that the Learned Judge approached the sentencing process in accordance with the relevant guidelines”. Instead, the challenge is to the judge’s evaluative assessment of which option was appropriate.

Here the choice for the judge was stark and binary: either a hybrid order or a hospital and restrictions order. It was not suggested by either party that a hospital and restrictions order would be wrong in law or as a matter of principle. Instead the parties advanced competing submissions as to whether one option was better than the other. For the prosecution it was said that a hybrid order was appropriate; the defence advocated a hospital and restrictions order.

None of this is a promising platform for the Solicitor General, who faces the hurdle of establishing not only that the judge’s sentences were lenient, but that it was unduly so.  A sentence is unduly lenient “… where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate” (Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41, Lord Lane CJ). In R v Edwards [2012] EWCA Crim 2746 2012 WL 7092526 (at [19]) Hughes LJ commented that the scheme is designed to deal with cases where judges have fallen into “gross error”.

The Solicitor General argues that in determining the offender’s level of retained responsibility the judge failed to give sufficient weight to the evidence that his culpability was not extinguished. However, it is plain that the judge recognised that the offender’s culpability was not extinguished; the weight he gave that factor reflected the level of retained responsibility as described by the psychiatric evidence before him.

The Solicitor General submits that the judge erred in imposing hospital orders with restrictions “since it was necessary to impose a sentence with a penal element” and that “the overall gravity of the offending was such that it required a penal element”. However, as the authorities to which we have referred make clear, in sentencing an offender who satisfies the criteria in s. 37, the court has to have regard to both the need for punishment and the protection of the public.

The need for punishment is a function of the seriousness of the consequences of the offending and the level of responsibility which the offender bears for that offending. Here, as the judge plainly recognised, the consequences of the offending were of the greatest seriousness. But, as the expert evidence made clear, the offender’s mental condition was such that the level of responsibility he retained for that offending lay at the lower end of the scale. That being so, any need for punishment needed to be balanced carefully against the need to protect the public from the risk the offender posed. The Sentencing Council Guidelines on Manslaughter by Reason of Diminished Responsibility make clear that in deciding to impose a hybrid order the court should consider not only whether a penal element is appropriate but also whether the mental disorder can appropriately be dealt with by such an order.

The Solicitor General contends that there were a number of aggravating features which required an uplift from the starting point for a single offence. That is plainly correct. However, the judge acknowledged that there were multiple offences of manslaughter and attempted murder and that others were put at risk during the course of the offending.

The Solicitor General suggests that the offender’s criminality was also aggravated by the fact that the offender planned the attack and purchased knives for the purpose. In our view, that submission is misconceived. The evidence was that these actions were all part of his illness. During the oral evidence of Professor Blackwood, the following exchange with defence counsel took place:

In our judgment, the uplift to the starting point adopted by the judge was appropriate. In any event, the critical question is whether the final disposal adopted by the judge was one properly open to him. In our judgment, it clearly was.

In determining the final disposal, the judge, as he recognised, had to consider whether a penal element was necessary. Because the offender’s level of retained responsibility was low, and in circumstances where the offending would not have taken place but for the offender’s schizophrenia, the judge was entitled to conclude that a penal element was unnecessary. That is so, despite the number of victims and the extent of the harm caused. The schizophrenia was the sole identified cause of the crimes: thus, for example, there was no history of independent offending (unrelated to the schizophrenia), no evidence of substance abuse, no evidence of any culpable failure to take medication or any motive for attacking these victims.

The key factor in a case like this, when deciding whether or not a penal element is required, is the strength of the link between the offender’s impairment and the offending in question. Here, in the words of Professor Blackwood, at the time of the assaults the offender was “in the grip of a severe psychotic episode…entirely driven by the psychotic process”.

The judge properly took into account, first, that under the s.45A regime, the Parole Board would be likely to follow the release recommendation of the clinicians and Tribunal; secondly, that monitoring thereafter would be carried out principally by a probation officer rather than a mental health practitioner; and thirdly, that recall to prison, and subsequent transfer to hospital, might take some time. He reached what was the perfectly reasonable conclusion that a period of imprisonment, as might follow the making of a hybrid order, risked non-compliance with medication, a deterioration in the offender’s mental state, and a consequential increased risk to others.

By contrast, as the judge said, the ss. 37/41 regime avoided situations in which the risk posed by the offender might increase, or his mental condition worsen, because of delays in recall and re-hospitalisation. Such an approach, focussing on the question of public protection, was entirely in line with the comments in Edwards at [12] as set out above, namely “the graver the offence and the greater the risk to the public…the greater the emphasis the judge must place upon the protection of the public…”

We would add this. The report of Dr Mirvis, as the treating clinician who has had most contact with the offender, is of particular significance. In it, he says that the correct diagnosis of the offender’s condition is “treatment-resistant schizophrenia”. He says that it has been only partially responsive to treatment and that it will be necessary to trial another drug, clozapine.

Dr Mirvis then considered the difference in the release mechanisms between the two options open to the court. He says this:

We take this to mean that the offender will always present an extremely grave danger to the public if he is ever released. That danger may be mitigated by medication if he is compliant with the treatment regime and if the medication is effective. Although the safeguards described by Dr Mirvis and provided by the mental health team are no doubt effective in managing many cases, the extreme violence perpetrated by this offender makes it very likely that, whichever of the two options had been adopted, he will spend the rest of his life in a secure hospital.

This view is supported by Dr McSweeney who says:

“Very cautious management” is, in our view, unlikely to involve this offender ever being managed in the community. Dr McSweeney appears to share this view. In his oral evidence he said that the offender would require treatment in a secure mental hospital for many decades to come and would need to take his medication throughout his life. He did not exclude the possibility of eventual release but made it clear that he would always require “the most intense management and monitoring”.

In our judgment, the risk caused by any non-compliance with the medication regime or any failure of the medication to control the psychosis is so high that release into the community can properly be assessed as “very unlikely”. On this approach, it is even harder to label the hospital and restrictions order unduly lenient, since it will have the same effect as the only other available option.

This was a sensitive sentencing exercise that was not straightforward. But there was no error, in the approach adopted by the judge. His conclusion that, on the facts of this case, a penal element was unnecessary and the better protection of the public required a hospital and restrictions order, rather than a hybrid order, was one properly open to him. We do not consider it arguable that the resulting sentences were unduly lenient. We refuse leave.

It is impossible to read of the circumstances of this offending without the greatest possible sympathy for the victims of these terrible attacks, and their family and friends. The victim impact statements paint a graphic picture of the appalling effects of the offender’s conduct. Had the offender not suffered the mental condition he did, the sentencing judge would doubtless have been considering a whole life term. But neither the judge nor this court can ignore the medical evidence as to the offender’s condition which led to these dreadful events or the threat to public safety which the offender continues to pose.