ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
His Honour Judge Robbins
Before:
LADY JUSTICE MAY
MRS JUSTICE McGOWAN
and
MRS JUSTICE EADY
Between:
JAMIE JENKINS | Appellant |
- and - | |
REX | Respondent |
Paramjit Ahluwalia (instructed by Julie Ann Boule of GT Stewart Solicitors) for the Appellant
Charlene Sumnall (instructed by the CPS) for the Respondent
Hearing dates: 26th November 2025 and 18th December 2025
Approved Judgment
This judgment was handed down in court at 09:15 on 18th December 2025.
.............................
Lady Justice May DBE:
Introduction
This is an appeal against sentence following a reference to this court by the Criminal Cases Review Commission (CCRC).
On 16th February 2009 in the Crown Court at Southwark the appellant, who was then aged 25, pleaded guilty to robbery. On 8th July 2009 he was sentenced by His Honour Judge Robbins to an indeterminate sentence of imprisonment for public protection (IPP) pursuant to section 225 of the Criminal Justice Act 2003 with a minimum specified period of 2 years less 443 days spent on remand.
By section 9(2) of the Criminal Appeal Act 1995 Act, a reference to this court by the CCRC is to be treated for all purposes as an appeal under section 1 of the Criminal Appeal Act 1968. It follows that, in relation to the ground on which the sentence passed on the appellant has been referred by the CCRC, the appellant does not need to apply for leave to appeal or for an extension of time.
Facts of the offence
Given the circumstances of this appeal, so long after the original sentence and when, on any basis, the requirements of punishment have long been satisfied, the facts of the robbery are not central to our decision. Accordingly, we can deal with them briefly: at about 7pm on 18th April 2008, Adele Ashurst was walking in Notting Hill holding her mobile phone, about to make a call. The appellant grabbed her phone from behind, elbowing her in the face. After a short struggle, he managed to take the phone from her and ran off. She shouted for help; before he had gone far the appellant was detained by passersby and handed over to police officers who were on patrol nearby. The appellant was arrested and the phone was recovered.
Sentence
The appellant had 28 convictions for 53 offences committed between 1997 and 2008. These included convictions for robbery, obtaining and attempting to obtain by deception, criminal damage, racially aggravated threatening words and behaviour, drugs offences and common assault.
In assessing whether the appellant met the criteria for dangerousness and in considering the appropriate disposal, the judge had before him the following reports: a PSR dated 19th March 2009, a psychiatric report by Dr Michael Browne dated 10th December 2008, a psychiatric report by Dr Samuel Levy dated 9th June 2009 and an addendum PSR prepared following receipt of Dr Levy’s report.
The Judge accepted that the appellant suffered from a mental disorder, namely paranoid schizophrenia exacerbated by poly-substance misuse, and from a dissocial personality disorder. The judge stated that:
“in all the circumstances, Dr Levy concludes that your condition is not presently of a nature and degree (sic) that warrants treatment in hospital because the appropriate treatments for the disorder or disorders that you suffer from are readily available within the prison environment, if the court favours a custodial sentence, as it does”
The appellant was assessed as posing a significant risk of serious harm. The judge found that the robbery merited a notional 4-year determinate sentence; accordingly he passed the sentence of IPP to which we have referred.
Attempts to challenge the sentence
There was an appeal against sentence in 2010, for which the single judge granted leave. The appeal sought to challenge the length of the custodial element. This court dismissed the appeal: R v Jenkins [2010] EWCA Crim 1259.
The appellant first applied to the CCRC in June 2017. In the absence, at that time, of any fresh psychiatric evidence the CCRC declined to refer the sentence for a fresh appeal. We need not go into the details of that first application, turning instead to consider the instant reference to us by the CCRC.
The CCRC’s reference
Assisted by his current solicitors, the appellant applied again to the CCRC in July 2020, supported by a report from Dr Nadji Kahtan, consultant forensic psychiatrist, dated 6th March 2020. It was submitted that new information about the Appellant’s psychiatric condition undermined the conclusions of the psychiatrist who reported prior to sentence in 2009 and demonstrated that the appellant was then, and remains, suitable for a hospital order under s.37 Mental Health Act 1983 (MHA 1983) with restriction under section 41.
The CCRC relied on documentary material collected during its first review in 2017 but sought also to secure comprehensive expert comment from Dr Khatan and from Dr Nigam, the appellant’s responsible clinician at the Three Bridges Secure Unit attached to Ealing Hospital, where the appellant has been a patient since his transfer from prison on 28th October 2020, going first to the John Howard Centre in Hackney before moving to the West London Forensic Service on 15th June 2021.
The CCRC concluded that there was a real possibility of this court receiving fresh evidence from Dr Kahtan and Dr Nigam about the appellant’s condition; also that, having received that evidence, there was a real possibility of this court concluding that the most appropriate sentencing disposal was a restricted hospital order under ss.37/41 of the Mental Health Act 1983 and therefore a real possibility of its quashing the IPP and replacing it with such an order.
We should say that, as the appellant was only 25 at the time of his sentence in 2009, very much more is now known, 16 years later, about the nature and treatability of his condition and its interaction with his offending behaviour. There has been more time to observe him, not least during the very many hospital admissions which he has had, upon transfer from prison, in the intervening period. There can be no criticism at all of the decision made by the sentencing judge in 2009 on the evidence which he then had.
IPP sentences
IPP sentences were available to be imposed for certain offenders from 2005 to 2012. Under the IPP regime, an offender who was considered to pose a significant risk of causing serious harm to the public through further serious offences could be detained in prison until assessed by the Parole Board as no longer posing such a risk.
IPP sentences were passed with a specified minimum term as the punitive element for the particular offence. The minimum term was the period which had to be served in custody before an offender could be considered for release by the Parole Board. Thereafter, they could only be released upon the Parole Board being satisfied that they no longer need to be confined for the safety of the public. Release was never automatic, and offenders could be detained indefinitely if the Parole Board decided it was not safe to release them.
If and when an offender subject to an IPP sentence was released, they remained on licence, subject to conditions. The licence would continue in force until terminated by the Parole Board. As with other sentences, breach of licence conditions could result in the offender being recalled to prison. If recalled, an offender subject to an IPP sentence must remain in prison until the Parole Board is satisfied that custody is no longer necessary for public protection.
As of 31st March 2024, there were 1,180 unreleased IPP prisoners in custody in England and Wales (figures taken from House of Commons Library research briefing published 22nd October 2024). In addition to these unreleased IPP prisoners, there were 1,616 recalled IPP prisoners in custody on 31st March 2024, bringing the total number of IPP prisoners to 2,796. As of March 2024, all but 13 unreleased IPP prisoners had passed their tariff date.
Ground of appeal
The single ground of appeal is that, in the light of the fresh evidence, it can be seen that the sentence of IPP passed on this appellant was wrong in principle and that a hospital order with restriction order would have been the most appropriate disposal. The judge accepted that the appellant was suffering from a psychotic illness, namely paranoid schizophrenia exacerbated by poly-substance misuse, and from a dissocial personality disorder. He relied on the view of the prison psychiatrist, Dr Levy, that the appellant’s mental disorder was not of a nature or degree which made it appropriate for him to be detained in hospital for treatment since the appropriate treatments were readily available within the prison environment. It is said that, on the fresh evidence now available, Dr Levy’s view was incorrect.
Subsequent events
Counsel on both sides at this appeal agree that the picture regarding the appellant’s condition and its connection to the ongoing risk he presents is significantly complicated by events which have occurred after the appellant received the IPP sentence for robbery in 2009. First, there have been multiple occasions upon which the appellant has relapsed in prison leading to his transfer to hospital for treatment under s.47/49 of the MHA 1983 during the currency of the IPP. The last such occasion was in 2020 resulting in a transfer on 28th October 2020 first to the John Howard Centre and from there, on 15th June 2021, to the Three Bridges Unit at Ealing hospital, where the appellant remains an in-patient today.
Second, the appellant has exhibited further assaultive behaviours since his conviction for the robbery offence, including three giving rise to criminal proceedings in the Crown and magistrates’ courts. These resulted, in each case, in a sentence of imprisonment expressed to run consecutive to the IPP sentence. It will be necessary to revert to consider these sentences later in this judgment.
The fresh evidence
Ms Ahluwalia for the appellant seeks leave to rely on the following expert psychiatric evidence:
Reports of Dr Khatan dated 6th March 2020 and 29th July 2025
Reports of Dr Nigam dated 15th December 2022, 8th August 2024, 26th September 2024, and 28th October 2024 and 26th May 2025.
Further report of Dr Khatan dated 24th November 2025
We heard brief oral evidence de bene esse (ie provisionally, before determining whether to admit it on this appeal) from the two psychiatrists at the hearing. Their oral evidence was directed principally at (i) the extent to which the appellant’s risk to the public results from a personality disorder rather than solely from a relapsing psychotic illness and accordingly (ii) whether the ongoing risk is best managed by the Parole Board on licence from a prison sentence or through a hospital order with restrictions.
Dr Kahtan was the appellant’s primary treating clinician at the time of his sentence for robbery in 2009, having cared for him as an inpatient on an admission to hospital in the previous year and having provided a report recommending a hospital order for the purposes of sentence for an offence which the appellant committed in the year before the robbery. Unfortunately, it seems that Dr Khatan was not consulted or approached for a report prior to sentence for the robbery. In his report dated 6th March 2020 Dr Khatan referred to relapses of the appellant’s primary condition of paranoid schizophrenia:
‘394. In my opinion it was obvious even at the time of sentencing that Jamie Jenkins suffered from a chronic mental illness, namely paranoid schizophrenia; that this was an illness that was relapsing in nature; that relapses of his mental illness were precipitated by non-compliance with medication and possibly by substance use; that non-compliance was inevitable given Mr Jenkins’ lack of insight into his mental illness; that he presented a considerable risk to others when he relapsed, far in excess of any threat he presented when mentally well; and that his mental illness amounted to a mental disorder within the meaning of the Mental Health Act 1983 as amended in 2007.
Although I have not seen all the relevant records including the records of his outpatient care in the weeks and months prior to the index offence, the records of his police detention and his records from when he was initially remanded to prison, it seems highly likely that Jamie Jenkins had been suffering from a relapse of his mental illness at the time of his offence, as judged by the offence itself, the description of his behaviour following his arrest, the fact that the Forensic Medical Examiner had found him unfit for interview after his arrest; and his presentation in prison in the months after his arrest before he resumed taking antipsychotic medication.
At the precise time of sentencing his mental illness would have been at least of a nature if not degree that made it appropriate for him to be treated in hospital in the interests of his own health and the protection of others, if not his own safety.
It has become abundantly obvious since Mr Jenkins was given his IPP that this remained the case over a number of years, with at least five clear relapses requiring hospital admission from prison, often associated with very dangerous behaviour in prison, including significant violence and fire setting.
Even now this remains the case. Mr Jenkins is only compliant to a limited extent and for a limited period with prescribed medication, requiring considerable persuasion on my part and on the part of nursing staff at prison to continue with his injected antipsychotic medication. As a result he presents no immediate risk to others but this could change at any time. Even now, however, his health and safety are somewhat at risk; currently he is refusing all oral medication for his mental health and is perhaps less well mentally than he might be; he is also refusing all physical health medication and definitely at higher risk of cardiovascular disease as a result, given his physical obesity, high blood pressure, high serum cholesterol and Type II diabetes.
With the passage of time, it has become increasingly clear that an IPP was the wrong sentence in July 2009; Jamie Jenkins has spent far longer in prison than was originally envisaged to be necessary, judging by the minimum tariff he was given, with no real hope of progress; his mental health has not been as stable as it might have been, due to his lack of insight and tendency to stop taking medication in prison, because he cannot be compelled to take medication in prison. As Dr Taylor pointed out several Years ago, “it is difficult to see how he will ever progress with or complete his sentence plan in a prison environment.” (emphasis added)
Concerning risk factors, Dr Kahtan detailed at paragraph 415 that:
‘He can only be safety discharged from hospital with the conditions of a Restriction Order and the financial resources that would enable him to be discharged to appropriate 24-hour hostel accommodation staffed by professionals used to working with mentally ill clients and liaising with the statutory mental health services that would supervise Mr Jenkins’ care in the community.’
Dr Kahtan provided an addendum report dated the 29th July 2025 to deal with queries raised by the prosecution in its Respondent’s Notice about the role of the appellant’s personality disorder in his offending. In summary Dr Khatan outlined the following:
At the time of the robbery, the appellant had stopped accepting treatment and was mentally unwell: ‘The most important aspect of his management would always have been and will always be ensuring compliance with medication, which a conditional discharge would have achieved.’
It is impossible to say to what extent the appellant’s personality disorder, as opposed to his mental illness affected his behaviour. Some of his offences since the development of his mental health disorder are not simply related to the antisocial component of his personality but due to changes in his judgment and ability to think and solve problems – the example provided is that the appellant believed he would obtain £50 from selling the phone he intended to steal; yet he had far more in his bank account at the time.
Antisocial behaviour whilst in hospital cannot simply be attributed to the personality disorder, there have been long periods where the appellant was not antisocial in hospital.
Dr Kahtan’s experience of hybrid s.45A orders to manage patients who suffer from mental illness has not been a good one. In his experience they have resulted in relapses of mental illness in prison and requiring readmission to hospital.
Experts would monitor the impact of personality disorder on release, particularly as to whether the personality disorders undermine compliance with conditions of their discharge.
Dr Kahtan does not consider that the Appellant underwent proper psychiatric assessment prior to sentence.
Dr Kahtan has provided a very recent up-dating report dated 24th November 2025 in which he has expressed the following views:
“10. The optimal disposal for someone like [the appellant], with a chronic relapsing psychotic illness, convicted of an offence involving serious violence and/or a history of presenting a risk of serious harm to others (especially when unwell) is a Hospital Order under section 37 of the Mental Health Act 1983 with a Restriction Order under section 41
11. A custodial sentence, particularly a lengthy or potentially lengthy one, is not suitable despite the standard advice given by psychiatrists to courts in relation to mentally ill defendants that they can be transferred to hospital, if necessary, under sections 47 and 49 of the Mental Health Act. This is perhaps legitimate advice in mentally stable, compliant defendants whose offences are not related to their mental illness, but not in patients who are actively symptomatic or likely to be non-compliant with medication and relapse, or indeed for patients who committed their offences whilst suffering a relapse. This is because it either ignores the essential connection between their illness and their offence, or the fact that they will inevitably become ill in prison and require repeated admission to hospital.
12. A lengthy sentence is particularly unsuitable for patients like [the appellant] because during relapses he has seriously assaulted prison and hospital staff as a direct result of his illness. To reduce the risks of serious harm to others (and to himself) the ideal disposal is one that takes into account mental health needs and results in long-term mental stability…
13. An IPP was particularly unsuitable for a prisoner like [the appellant] because it was inevitable or almost inevitable that he would never be or have been capable of satisfying a Parole Board that he could be released, partly because he is incapable of completing the necessary courses in prison and partly because release under probation supervision cannot guarantee to the same level as a s.37/41 disposal future compliance with follow-up and prescribed treatment.”
In his latest report Dr Khatan strongly criticises the approach taken by Dr Levy, in particular the brevity of Dr Levy’s 5-minute interview with the appellant, as providing any adequate justification for his conclusion presented to the sentencing judge that the appellant’s schizophrenia was not then of a nature or degree making it appropriate for him to be treated in hospital, when there were evidently symptoms present. At the very least, Dr Khatan said, Dr Levy should have recommended that the appellant be transferred to hospital for assessment.
We turn now to the reports of Dr Nigam. Dr Amit Nigam, a consultant forensic Psychiatrist at the West London Forensic Service, provided several reports to the CCRC. Dr Nigam became the Responsible Clinician for the Appellant on the 16th June 2021. The report of Dr Nigam of the 15th December 2022 details a diagnosis of paranoid schizophrenia with co-morbid diagnoses of poly-substance misuse and dissocial personality disorder, as observed by the Sentencing Judge. Dr Nigam indicates that ‘it is difficult to recreate the mental state of offenders at the time of the offence, many years after the offence…It is unclear whether Mr Jenkins’ mental health difficulties at the time were due to drugs, mental illness or a combination of the two. It is therefore difficult to say for certain whether disposal pursuant to section 37 of the Mental Health Act 1983 would have been the most appropriate disposal.’ He goes on to say, however, that what had become more apparent since the time of sentence was the nature of the Appellant’s mental illness; namely that his paranoid schizophrenia was of a relapsing and remitting type, which has responded well to treatment with antipsychotic medication.
In Dr Nigam’s view, Mr Jenkins’ illness is treatable in hospital under the provision of s.37 MHA 1983 and this was demonstrated by the response of his illness to treatment during his many admissions to hospital from prison over the years. Dr Nigam went on to highlight that, in relation to risk, he would recommend a restriction order under s.41 in addition to a hospital order under s.37 MHA 1983. This was on account of the nature of the index offence; the history of violent offending; and occasional aggressive behaviours in prison and hospital settings. In his opinion, a recall to prison was likely to result in relapse to the appellant’s mental health with the associated increased risk of harm to other inmates and staff members.
In an addendum report of 8th August 2024, Dr Nigam explained that:
The appellant poses an ‘increased risk of harm to others when poorly compliant with medication and mentally unwell’.
He will require long term treatment with anti-psychotic medication over a number of years and close supervision of the medication compliance to minimise the risk of future relapses. That would be best achieved through discharge and release by specialist forensic mental health services and placement in a 24-hour supported accommodation with staff experienced in supervising mental health medication. It was unlikely Mr Jenkins would comply particularly with mental health medication, unless legally compelled to.
There were diagnostic difficulties at the time of the first proceedings given the complicating effect of the Appellant’s substance misuse, but the need for treatment in hospital under the MHA 1983 has become much clearer since that time.
If discharged from hospital under a hospital order with restriction, the impact of non-attendance at appointments or non-compliance with medication would be recall to a secure mental hospital within a few hours and a rapid assessment of mental health and re-instatement of mental health medication.
By contrast, if released from prison, the Appellant would not be eligible for follow up by Specialist Community Forensic Mental Health Services.
Dr Nigam provided a further addendum report to the CCRC dated 26th September 2024. In it he explained that:
Mr Jenkins poses an increased risk of harm to others when poorly compliant with medication and mentally unwell.
If information from individuals who had care of and knowledge of Mr Jenkins around the time of the first proceedings had been obtained, then a period of assessment in hospital could have taken place at that time which could well have led to a recommendation for a hospital order, rather than a custodial sentence.
Dr Nigam provided a further addendum report dated 28th October 2024. He maintained that it would be in the appellant’s best interest for him to be discharged via the hospital pathway into the community and re-iterated that ‘given the complexity of Mr Jenkins’ mental health needs, and the link between some of his offending and him being mentally ill, I am of the opinion that this would be an important part of any risk management plan in the community.’
Dr Nigam provided a final addendum report dated 26th May 2025dealing with issues raised by the prosecution in its Respondent’s Notice relating to the role of the appellant’s personality disorder. In Dr Nigam’s view:
It is difficult to determine the level of impact of the appellant’s personality disorder on culpability at time of offence. His personality disorder could make the appellant more prone to aggressive behaviour and disregard for rule and social norms so it is possible that this could contribute to his offending. It is likewise challenging to assess the impact of his personality disorder on the appellant’s aggressive responses seen in hospital, when in receipt of medication and treatment. Some of these events have occurred when the appellant was reporting symptoms indicating he was mentally unwell despite treatment with medication; others are less clear and personality disorder appears to have been contributory.
A Hospital order with restrictions is still the more appropriate sentence:
‘Mr Jenkins suffers from a mental disorder of a nature that warrants detention in hospital for treatment. Mr Jenkins has required transfer from prison to hospital on many occasions, and his treatment needs are best met in a hospital setting. Additionally, his post-discharge mental health needs will best be met through close liaison between our inpatient team and the community forensic mental health team.’
‘Protection of the public can be robustly ensured through the imposition of a restriction order under section 41. Such an order allows for long-term oversight by the Secretary of State for Justice and ensures that any discharge, leave, or transfer decisions are subject to ministerial approval. This provides a high degree of control over risk management.’
Dr Nigam considers that a s.45A hybrid order would undermine the therapeutic progress achieved in hospital, particularly given Mr Jenkins’ history of relapsing when in prison.
On discharge from hospital, the appellant would be anticipated to reside at 24 hour supported accommodation, specialising in caring for people with mental health problems. He would be reviewed by a mental health team, consisting of a Consultant Forensic Psychiatrist, Community Psychiatric Nurse and a social worker. Any concerns regarding his mental disorder would be shared by staff at the accommodation with the mental health team, who would implement relevant interventions.
Both psychiatrists attended to give evidence at the hearing, where their views expressed in their various reports were further examined by counsel. Ms Sumnall for the prosecution interrogated the extent to which, given the appellants antisocial personality disorder and episodes of aggression whilst under treatment, the risk he represents would be properly managed by a hospital order rather than by the Parole Board with the involvement of MAPPA. The following points appeared to us to be especially relevant from these further discussions with the psychiatrists, Dr Nigam in particular as the appellant’s current treating consultant and responsible clinician at the Three Bridges Unit:
The number of admissions since 2009 show that the appellant has a relapsing remitting illness, meaning that his psychosis relapses regularly. His illness is and would historically have been “absolutely” of a nature and possibly also (depending upon the degree of his psychotic symptoms at the time) of a degree to make it appropriate for him to be detained for treatment.
There is a complex interaction between the appellant’s psychosis and his personality disorder such that it is not possible to separate out what aspects of his condition are causative of his aggressive behaviours when they occur. The appellant will struggle to engage with psychological treatments directed at his personality disorder because of his relatively limited IQ, which at 71/72 is at the borderline. Instead, the team will seek to address the social aspect of his rehabilitation and onward care – managing finances, finding appropriately supportive housing – to reduce the likelihood of aggressive behaviours occurring. Dr Kahtan expressed the view that if the appellant had only had a personality disorder, then he would never have been transferred to hospital, nor been kept in hospital for the last 5 years following the last transfer.
When in hospital the appellant can be forced to take his medication, although to-date that has not been necessary. However, in prison he could (and in the past he has) refused to take it. Both psychiatrists expressed the firm view that hospital was the best place to meet the appellant’s needs arising from his mental health conditions.
The release pathway from a section 37/41 order will be more supportive and responsive than discharge from prison. Someone like the applicant will only be discharged to a 24-hour supported hostel with staff who specialise in caring for people with a mental health diagnosis. They would have immediate access to a mental health team in the community if there were any concerns. Any discharge would be accompanied by an array of conditions including where to live, attending regular appointments, taking medication, abstinence from alcohol or drugs. A breach can result in a speedy recall to hospital, usually on the same day.
Forensic cases like that of the appellant are taken to the MAPPA (multi-agency public protection arrangements) and are discussed well prior to any release. In this way the views of MAPPA are fed into any post-release plan.
Finally, both psychiatrists formally confirmed that the s.37 conditions for admission to hospital were met in the case of the appellant, and Dr Nigam formally confirmed that there was a bed available for him (in effect the bed that the appellant is currently occupying).
Discussion and decision on the CCRC reference appeal concerning the IPP
The prosecution did not suggest that there was any impediment to the admission of the further psychiatric evidence pursuant to section 23 Criminal Appeal Act 1968. We consider that it is appropriate to receive the fresh evidence from the psychiatrists, in the form of their written reports and the oral evidence given at the hearing.
There is no question but that the punitive element of the appellant’s IPP sentence was completed long ago. Nor is there any issue but that he suffered, and continues to suffer, from a serious psychotic illness, namely paranoid schizophrenia, which requires treatment. We are satisfied, having heard the evidence of Drs Kahtan and Nigam, that it is impossible to regard the effects of the appellant’s associated personality disorder as separate from his psychosis; the two conditions are inextricably linked. Moreover, the effect of the psychotic illness upon the appellant’s insight, reasoning and thought process generally, together with his relatively low IQ, means that the usual therapeutic approaches to treating a personality disorder are unlikely to have any traction in his case and certainly not until his psychosis is being optimally controlled with medication. As is evident from the fact that the appellant has been at the Three Bridges Unit for the last 5 years, all those who have considered the appellant’s case have concluded that a hospital setting is the best place for him.
The competing considerations for a court in determining whether a hospital order under ss 37/41, or a treatment and limitation direction under s.45A of the MHA may afford the proper disposal in any particular case are to be found in Vowles [2015] EWCA Crim 45 at [51]-[54], as further elucidated and discussed in Edwards [2018] EWCA Crim 595 at [12]-[14] and in Surrey [2022] EWCA Crim 1279. In Surrey at [53], the court summarised the relevant considerations as follows:
“The principles which should guide a court in determining whether to make a Hospital Order under the 1983 Act either at the time of sentence, or on appeal in substitution for a custodial sentence, were set out by the Court of Appeal at [51] to [54]. They are as follows.
1. The requirements as to the recommendations of two registered medical practitioners in Section 37(2)(a) must be met, but this alone is not sufficient.
2. Where the conditions in Section 37(2)(a) are met judges must then have regard to “all relevant circumstances” including the following four issues when deciding whether the condition in Section 37(2)(b) is (or would have been) met:
a) The extent to which the offender needed the treatment for the mental disorder which he was suffering;
b) the extent to which the offending was attributable to that disorder;
c) the extent to which punishment was required; and
d) the protection of the public, including the various regimes in determining release and post-release. In relation to this consideration, the court emphasised at [52] that judges “must now pay very careful attention to the different effect in each case of the conditions applicable to and after release.”
The parties were agreed that the matters identified at (b) and (d) are of particular relevance on this appeal.
The appellant has long ago completed the punitive part of the IPP, accordingly there is no question of replacing it with a s45 limitation and direction order now. The only issue for us is whether the IPP ought to be replaced with a hospital order with restriction under section 37/41, having regard to the best way of managing the risk which the appellant is acknowledged to present.
We start from the position that, as the psychiatrists’ evidence makes clear, the appellant suffers from a chronic and relapsing psychotic illness, as well as a personality disorder. The fact that he had these disorders was known at the time of sentence in 2009, but contrary to Dr Levy’s opinion provided to the sentencing judge in 2009, it is now clear that the appellant’s paranoid schizophrenia was of a nature (even if not then of a degree) which made it appropriate for him to be treated in hospital. As the two psychiatrists who have treated the appellant over the years both point out, the occasions on which the appellant has assaulted people have occurred when he has ceased taking medication or were linked with his being symptomatic, even if he was taking his medication at the time. The key point is that the appellant’s primary illness, being his chronic paranoid schizophrenia, whilst susceptible to treatment, is nevertheless a relapsing condition. Moreover, if the appellant refuses or takes himself off his medication, which experience shows he has done whilst in prison, then a relapse will follow, at which time his risk is heightened.
We are grateful to Ms Sumnall for raising issues relating to the effect of the appellant’s personality disorder on his level of risk and for examining that link further with the psychiatrists in their evidence at the hearing. We note that, in closing, Ms Sumnall was careful to emphasise that the prosecution was neutral regarding the outcome of this appeal in relation to the best route in managing the appellant’s ongoing risk.
In our view the ongoing risk to the public is best to be managed by replacing the IPP with a hospital order with restriction now. The obvious sense in this is demonstrated by the fact that the appellant has remained in hospital for the last 5 years since his final transfer from prison in 2020 and has committed no further offences during this time. The evidence relating to the differences in the release and post-release recall regimes indicated that the pathway of release from a hospital order will involve the same MAPPA input as would release via the Parole Board, but the conditions under which the appellant would be residing, and the ways in which he would be supported, are different and more conducive to managing his risk given his chronic psychotic illness. Treatment via medication for the appellant’s schizophrenia is key to managing that risk. The fact of a co-existing personality disorder makes the appellant’s treatment more complex and challenging, no doubt, but on the evidence of both psychiatrists the most important factor in managing the risk of further aggressive behaviour is achieving an optimal medication regime directed at tackling the symptoms of the appellant’s chronic paranoid schizophrenia.
Public safety will be better served, in our view, by a regime which involves close attention to and supervision of the appellant’s mental health needs.
Accordingly, we allow the appeal against the IPP sentence passed in 2009. That sentence is quashed and replaced by a hospital order under section 37 with a restriction order under section 41 MHA 1983. The Order will specify where the appellant is currently being detained and that the appellant is suffering from paranoid schizophrenia and anti-social personality disorder.
That being so, and upon Ms Sumnall confirming that the prosecution is essentially neutral on the most effective future management of the appellant’s behaviour, we are entirely satisfied that the route of a hospital order with restrictions offers the best treatment for the appellant and accordingly the best protection for the public going forward. For these reasons we allow the appeal against the IPP, quash that sentence and replace it with a hospital order with restriction order under section 37/41 MHA.
Convictions and sentences post-dating the imposition of the IPP – further appeals
The resolution of the appeal consequent upon the CCRC reference is not the end of the matter. As we noted above, the appellant was convicted and sentenced on three occasions after the IPP sentence was passed on him by Judge Robbins at Southwark in 2009:
On 5th October 2012 at Isleworth Crown Court the appellant was sentenced for an offence of assault occasioning actual bodily harm (AOABH). The court passed a sentence of imprisonment for 2 months, ordered to run consecutively to the appellant’s release from the IPP (“Sentence two”).
On 31st March 2016 at Kingston Crown Court the appellant was sentenced for a further offence of AOABH, receiving 12 months imprisonment consecutive to his current period of imprisonment under the IPP together with sentence two (“Sentence three”).
On 3rd March 2020 at West London Magistrates Court the appellant was sentenced to 16 weeks imprisonment for an offence of assault on an emergency worker. That sentence was also ordered to run consecutively to the appellant’s current period of imprisonment (“Sentence four”).
As all of these subsequent sentences had been expressed to run consecutively to the appellant’s current term and as, by the time of the hearing before us, the appellant was still technically detained under the IPP (albeit, by now, under an effectively permanent transfer to hospital from prison), there was an obvious issue as to what was to happen to these consecutive sentences in the event of our replacing the IPP with a hospital order, as we have. We raised the issue with counsel at the hearing and invited consideration of the possibility of further appeals and/or submissions from them on this topic.
The Crown Court sentences
Since then, formal appeals have been lodged (nos 202504310 and 202504311) seeking the necessary extension of time together with leave in respect of the two Crown Court sentences (Sentences two and three). Ms Sumnall has indicated that, in the event of our deciding to replace the IPP with a hospital order, there would be no prosecution objection to the applications made by Ms Ahluwalia for the appellant as regards either of those sentences. Ms Ahluwalia submits that as the time which the appellant has spent being detained (whether in prison or in hospital on transfer) since 2009 more than covers the further periods of imprisonment, the most appropriate order for this court to make would be to quash the order made by each crown court that the terms of imprisonment which it imposed were to run consecutively. The effect of removing that order is that the terms would have run from the date upon which they were pronounced and would now have been fully served, by application of section 29(4) Criminal Appeal Act 1968.
As a court of review, this court will not in general interfere with lawful sentences based on events occurring after sentence except in rare and exceptional cases (see R v Layden [2025] EWCA Crim 659 at [27] and [31], and, as to the circumstances under which it may be appropriate to act, see R v Prenga [2017] EWCA Crim 2149 at [37]-[43]). Ms Ahluwalia has submitted, and we accept, that the circumstances which apply to this appellant are such that it would be appropriate for this court to exercise its discretion to modify the sentences in the way she has described.
As the prosecution is neutral on the form on modification of the sentences, we need discuss the result no further. We grant leave in respect of sentences two and three, allow the appeals and quash the orders made in each Crown Court that the terms of each sentence were to run consecutively.
The magistrates court sentence (Sentence four)
Turning now to Sentence four, it appears that dealing with the sentence imposed at West London Magistrates Court in March 2020 is less straightforward. As before, there is no question but that the 16-week term of imprisonment imposed by the magistrates on that occasion has effectively been more than fully served by now, given the time since 2009 during which the appellant has been detained. The issue, as above, is with the order made by the magistrates that it was to be served consecutively to the IPP under which the appellant, at the time of this appeal, was still being detained.
According to the helpful submissions from counsel, supplemented by further submissions upon the direction of the Registrar, it seems that there are two possible options for this court in dealing with Sentence four now:
This court proceeds by one judge exercising powers as a District Judge (Magistrates Court) (DJ(MC)) under section 66 Courts Act 2003 (s.66) to vary the sentence by removing the order for it to run consecutively, under section 142 Magistrates Court Act 1980 (“section 142); alternatively
This court sits as an appeal court from the magistrates to grant leave out of time and hear the appeal against sentence.
The first of these routes is by far the simplest, in that the adjustment under section 142 can be done by a single judge sitting as a DJ(MC) under section 66 of the Courts Act 2003 (in accordance with the guidance provided in R v Gould & ors [2021] EWCA Crim 447) without a hearing, save only that any variation and the reasons for it must be announced in public (by application of rule 28.4 of the Criminal Procedure Rules 2025).
If a variation of sentence via section 142 is unavailable, then this court would have to sit as an appeal court from the magistrates, to hear an appeal pursuant to section 108(1) of the Magistrates Court Act 1980. Such an appeal cannot be done on the papers (see the requirement for an appeal to be held in public under part 34.8 of the Criminal Procedure Rules). Rule 34.11 of the Criminal Procedure Rules provides that the necessary constitution to hear such an appeal is a judge of the High Court, circuit judge, a recorder or a qualifying judge advocate sitting together with not less than two justices of the peace.
For obvious reasons, therefore, the simplest and most efficient route to make the desired variation to Sentence four would be to proceed to vary under section 142 MCA 1980. But do we have jurisdiction properly to do this? Section 142 provides as follows:
142Power of magistrates’ court to re-open cases to rectify mistakes etc.
A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.
…
Where a sentence or order is varied under subsection (1) above, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs.
The original 28-day time limit on the operation of the power to rectify under section 142 was removed by amendment in 1996, so there is not fetter on jurisdiction in that respect.
Ms Sumnall in her submissions argues that the question for this court is whether the making of the original sentence to run consecutively to the IPP was a mistake, for unless it was, then there is no jurisdiction to intervene under section 142: see the observations of Burnett J (as he then was) in R( Williamson) v City of Westminster Magistrates Court [2012] EWHC 1444 (Admin) at [31]:
The purpose of section 142 as originally enacted was to enable the Magistrates’ Court itself to correct mistakes in limited circumstances to avoid the need for parties to appeal to the Crown Court, or to the High Court by way of case stated, or to bring judicial review proceedings. In our judgment the introduction of the section 142 power was designed to deal with an obvious mischief: namely the waste of time, energy and resources in correcting clear mistakes made in Magistrates’ Courts by using appellate or review proceedings. The removal of the short time limit in 1996 is consistent with that approach. It is the common experience of courts in all jurisdictions that mistakes and slips are often not picked up immediately. The power conferred with regard to sentence explicitly refers to replacing a sentence imposed which was invalid. That might be regarded as correcting a classic ‘mistake’. It could be contended that it would be in the interests of justice to substitute a new sentence on the grounds that the one originally imposed was manifestly excessive. However, the sentencing provisions, whether in their original or new form in section 142, cannot be read as conferring a power to substitute a new sentence in the same way as an appellate court might do so. So far as the jurisdiction relating to convictions is concerned, the amendment enables the Magistrates’ Court to exercise the power in circumstances beyond those originally envisaged. But the power remains rooted in the concept of correcting mistakes and errors. It is not a power equivalent to an appeal to the Crown Court or the High Court, nor is it a general power of review. It would be possible to construct an argument that because a Magistrates’ Court made an error of law, and thus reached a wrong decision, it would be in the interests of justice for the matter to be remitted under section 142 for a rehearing. However, such an interpretation would have the effect of neutering appeals by way of case stated. It would have the effect of conferring a similar power on the bench considering a section 142 application as possessed by the High Court.
Ms Ahluwalia has submitted that the true nature of the power conferred by section 142 is broader, allowing a sentence passed by the magistrate’s court to be varied if it is in the interests of justice to do so, avoiding the delay and additional cost involved in an appeal by way of case stated. There is some support for this wider view in the cases of R (Trigger) v Northampton Magistrates Court [2011] EWHC 149 (Admin) at [32] and R (on the application of Manorgale Ltd) v Thames Magistrates Court [2013] EWHC 535 at [8] but later authorities have reverted to construing the power more narrowly: see Houston v DPP [2015] EWHC 4144 (Admin) and (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin). Blackstone’s Criminal Practice 2026 at paragraph D23.23 suggests that the power to vary under s 142 is akin to that in respect of setting aside a conviction; the latter is discussed at Blackstones D22.72, where it is seen as appropriate where the magistrates made an error of law or there was some defect in the procedure which led to the conviction.
As a magistrate’s court is not a court of record there is no transcript of the West London Magistrates Court’s reasoning when ordering the sentence of imprisonment which it passed on the appellant in 2020 to run consecutively. Nor is there any note from that time of what was said. It is not possible, therefore, to determine whether there is any basis at all upon which we could find a mistake or (even on a broader conception of the power under section 142) some error of law or other defect in the process or the reasoning. On its face the sentence appears to have been lawful. What is really being said is that the magistrates court made an error of judgement in imposing a consecutive sentence in this instance, and that seems to us to be more properly characterised as an error which should be addressed by way of appeal rather than by a variation so long after the event.
In these circumstances, and without deciding definitively on the correct delineation of the power to vary under section 142, we take the view that we cannot rely on that route as the proper means of dealing with Sentence four.
That leaves an appeal under section 108(1) of the Magistrates Court Act 1980. We propose to conduct such an appeal by one of the two High Court Judges of this constitution sitting as a Crown Court judge, with myself and the other judge sitting as DJ(MC)s, as permitted by section 66 of the Courts Act 2003. The case has been listed in open court with counsel present for the purposes of hearing such an appeal. We shall sit to hear the appeal immediately following the handing down of this judgment.