Neutral Citation Number: [2015] EWCA Civ 56

Case No: C1/2014/2538
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIV COURT (IRWIN J)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/02/2015
Before:
LORD CHIEF JUSTICE OF ENGLAND AND WALES
LADY JUSTICE MACUR
and
MR JUSTICE GLOBE

- - - - - - - - - - - - - - - - - - - - -

Between:

	R (Lucinda Vowles)	Appellant	
	- and -		
	Secretary of State for Justice
and
The Parole Board
	Respondents	
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Hugh Southey QC instructed by Campbell Law Solicitors for the Appellant
Mr Martin Chamberlain QC and Mr James Cornwell instructed by The Treasury Solicitor for the Respondents

Hearing dates: 16 and 17 July, 8 September and 5 and 6 November 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Thomas of Cwmgiedd, CJ: 

This is the judgment of the court to which we have all contributed.

INTRODUCTION
1.	There are before the court: 
i)	sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008.  Each specified a minimum term.  In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under s.37 of the Mental Health Act 1983 (MHA) as amended with a restriction under s.41 of the same Act.  The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under s.47 of the MHA.
ii)	sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody.
The criminal appeals
2.	As we shall explain in more detail a major effect of the decision of a judge to impose an indeterminate sentence of imprisonment as opposed to making a hospital and restriction order under s.37/41 of the MHA is that the decision for release is made by the Parole Board, whereas if a hospital and restriction order had been made under s.37/41, the decision would be made, if the person is detained in England, by the First-tier Tribunal (Health, Education and Social Care Chamber (Mental Health) (FTT) or, if the person is detained in Wales, by the Mental Health Review Tribunal for Wales.  The difference between England and Wales is due to the fact that mental health in Wales is a devolved competence under Schedule 7 to the Government of Wales Act 2006.  However,  there is for the purposes of determination of the issues in such cases as these no material difference between the powers and duties of the FTT and the Mental Health Review Tribunal for Wales.
3.	In each of the criminal cases the outcome which each of the appellants seeks to achieve is to have the release and the terms of release determined by the FTT under the MHA and care after release being provided through health services, rather than having a determination on release and the terms of release made by the Parole Board and the regime after release superintended by the applicable licence regime and supervision by the Probation Service.  The route by which each appellant seeks to achieve this objective is by appeal against sentence to the Court of Appeal Criminal Division in respect of the original sentencing decisions made in each of the cases in reliance on fresh evidence which each seeks to have admitted under s.23 of the Criminal Appeal Act 1968.
4.	We therefore have to determine in each of these cases whether fresh evidence should be admitted and, if so whether, on the basis of that evidence, we can conclude that the sentence passed by the judge should have been a hospital and restriction order under s.37/s.41 or whether the indeterminate sentence of imprisonment passed was correct.  Our task therefore is to apply the principles set out in s.23 of the Criminal Appeal Act 1968 to the circumstances of these particular sentences. 
5.	The six cases were listed together for us to consider how courts should approach such cases.  Although, in the light of the abolition of the sentence of IPP, it will be the case that many fewer indeterminate sentences will be passed, the problems that have arisen in these cases will arise where a judge has to consider passing a life sentence and there is a psychiatric issue such as to give rise to the consideration of treatment in hospital.  As a consequence of these appeals, it seems to us that it would be helpful to give sentencing judges further guidance which, although primarily directed to indeterminate sentences, is also in large part applicable to all determinate sentences.
6.	It is plainly highly unsatisfactory for a court to be revisiting many years after sentence the issue as to whether a judge should, instead of passing an indeterminate sentence, have made a hospital and restriction order under s.37/s.41 in circumstances where the sole objective relates to the regime to determine release and conditions thereafter.  We were able to examine whether there was an alternative in the light of the further material and submissions made in the civil appeal.
The civil appeal
7.	During the hearing of the first of the criminal appeals we learnt that one of the appellants, Vowles, who had been sentenced to IPP, had also commenced judicial review proceedings against the Secretary of State for Justice and the Parole Board in respect of the delays that had occurred in hearing the application to the Parole Board for release from custody.  
8.	The judicial review proceedings were heard by Irwin J on 18 and 19 March 2014.  As we explain at paragraph 79 he dismissed the claim for judicial review in a judgment given on 15 May 2014 reported at [2014] EWHC 1495 Admin.  We heard the application for permission to appeal and the appeal as a rolled up hearing.

PART 1: THE APPLICABLE LEGAL REGIMES
9.	It is necessary first to set out the applicable legal regimes under four headings – (1) the options available to the sentencing judge in a case where there is evidence that the offender suffers from a mental disorder, (2) the power of the Secretary of State for Justice to transfer a prisoner to hospital for treatment of a mental disorder,  (3) the applicable regime for release of an indeterminate sentenced prisoner transferred to hospital by the Secretary of State and (4) the approach to sentencing.
(1)	The options available to the sentencing judge
10.	Where an offender who is to be sentenced suffers from a mental disorder the court has a number of alternatives:
i)	A hospital order under s.37 with or without a restriction under s.41- see paragraphs 12 and following.
ii)	 A determinate or indeterminate sentence of imprisonment and direction for admission to hospital under s.45A – see paragraphs 17 and following.
iii)	An interim order under s.38 – see paragraphs 22 and following. 
iv)	A determinate or indeterminate sentence allowing the Secretary of State to exercise his powers of transfer to a hospital under s.47 with or without a limitation order under s.49 – see paragraphs 24 and following.
11.	It is unlikely that the central issue to which we have referred will arise in relation to determinate sentences, unless the sentence is an extended sentence or is a very long one, as the issue only arises where a decision on release has to be made by the Parole Board.  We will therefore focus in this judgment on offenders where the sentence of imprisonment considered by the judge would be an indeterminate sentence, but similar principles apply to those sentenced to all determinate sentences.
(a)	A hospital order under s.37 and s.41 of the MHA
12.	As we have already indicated at paragraph 2 the primary importance of the determination by the sentencing judge in a case where the option is either to impose an indeterminate sentence or to make a hospital order under s.37/s.41 is the release regime that will apply to the offender.
13.	The substantive conditions for making a hospital order under s.37 of the MHA as originally enacted was set out in s.37(2):
“The conditions … are that—
(a)	the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either— 
(i)	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 in the case of psychopathic disorder or mental impairment that such treatment is likely to alleviate or prevent a deterioration of his condition; … and 
(b)	the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
14.	S.37 has been amended several times since 1983; in particular s.37 (2) was amended by the Mental Health Act 2007 to change the conditions as to mental disorder.
“The conditions referred to in subsection (1) above are that— 
(a)	the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either— 
(i)	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 appropriate medical treatment is available for him; … and
(b)	the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section….”
15.	The significant changes between the original text of s.37 and the text as amended, particularly by the Mental Health Act 2007, are first that the mental condition is no longer restricted to a psychopathic disorder, severe mental impairment or mental impairment and secondly the condition as to treatment is amended so that it is no longer a requirement that treatment is likely to alleviate or prevent deterioration of the condition.  It is sufficient under the amended section that there is appropriate medical treatment available.
16.	However, what has remained the same is the condition in sub-section (2)(b) namely that a court, taking into account the other circumstances, including those enumerated, is satisfied that a hospital order is the correct means of disposal.  This requirement places a very heavy duty on the sentencing judge who must have regard not only to the psychiatric evidence which may well suggest a hospital order, but much wider considerations.
 (b)	A prison sentence and a hospital direction under s.45A of the MHA
17.	The Crime (Sentences) Act 1997 added to the MHA s.45A; its original terms were subject to criticism and the need for amendment: see for example those of the late Dr David Thomas in his comments on R v Newman at [2000] Crim LR 309 and R v IA [2006] Crim LR 79 and the observations of Lord Bingham in R v Drew [2003] UKHL 25, [2003] 2 Cr App R 24 at paragraph 14. 
18.	It was then substantially amended by the Mental Health Act 2007 with effect from November 2008.  The section as amended gives the court power, where the court is considering making a hospital order under s.37, if (1) the court is satisfied that the offender is suffering from mental disorder, (2) that mental disorder makes it appropriate for him to be detained in a hospital for medical treatment and (3) appropriate medical treatment is available, to impose a sentence of imprisonment but make the following directions under s.45A(3):
“(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”); and
(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”).”
19.	It is not possible, given the way in which the power is drafted, to make such a direction in respect of a person under 21 at the time of conviction: see Fort [2013] EWCA Crim 2332 at paragraphs 76-83.
20.	It is clear that the hospital direction has been little used.  Unsurprisingly until 2009 no more than five such orders had been made in any one year.  Since the amendment made by the Mental Health Act 2007 came into force in November 2008, 13 such orders were made in 2010, 19 in 2011, 14 in 2012, and 18 in 2013.  In contrast, the number of hospital and restriction orders under s.37/41 was 331, 334, 291 and 294 respectively and the number of transfers under s.47 was 450, 441, 458 and 455 respectively.  This is despite the fact that in Cooper [2010] EWCA Crim 2335 the judgment of Leveson LJ in this court examined in some considerable detail the use that might be made of such an order.
21.	The advantage of making such an order in an appropriate case is that an offender sentenced to an indeterminate or long determinate sentence can immediately be directed to have treatment in hospital, but the timing of his release is subject to the decision of the Parole Board which has to take a much wider view of the risks to the public than the FTT.
(c)	Interim hospital orders under s.38 of the MHA
22.	The court can, if satisfied on the written or oral evidence of two doctors that the offender is suffering from a mental disorder and that the disorder is such that it may be appropriate for a hospital order to be made, authorise his admission to a hospital under an interim hospital order.  Under s.38(5) a hospital order can only be made for a period up to 12 weeks but can be renewed for further periods of not more than 28 days up to a total period of 12 months.
23.	It is apparent, in some cases, that it is not easy to ascertain the identification of the disorder from which a defendant may be suffering, the extent to which that mental disorder can be appropriately treated or the extent to which that disorder contributed to the offending.  As some of the medical witnesses told us in the course of these appeals, it was often difficult to make an assessment in the conditions pertaining during the short period in which a psychiatrist interviewed the prisoner in prison.  A judge may therefore consider that making such an order may in some cases be the best way of proceeding.  However, for the reasons we give at paragraphs 50.ii) and 56, judges should pause and think long and hard before making such an order. 
 (2)	The Secretary of State’s power under s.47 of the MHA
24.	Under s.47 of the MHA  the Secretary of State can transfer to hospital a person sentenced to imprisonment if the Secretary of State is satisfied by reports from at least two registered medical practitioners:
a)	That the prisoner is suffering from a mental disorder,
b)	That the mental disorder makes it appropriate for the prisoner to be detained in hospital for medical treatment and 
c)	That appropriate medical treatment is available for him.
This power is exercised by means of a transfer direction and is by the express terms of s.47 to have the same effect as a hospital order made under s.37.  In addition, under s.49 of the MHA, the order transferring the prisoner to hospital can be made subject to a restriction order under s.41 of the MHA.
25.	Under s.48 of the MHA the Secretary of State has a similar power is respect of prisoners on remand.
 (3)	Procedure for consideration of release where a transfer is made under s.47
(a)	The statutory procedure
26.	As we have observed at paragraphs 2 and 3, if an order is made under s.37/41 of the MHA, then the release of the offender is determined under the regime specified in the MHA.  An offender is entitled to a review under s.70 at defined periodic intervals (within 6-12 months after admission and thereafter every 12 months).  After an application for a review, the release of the offender, either unconditionally or conditionally, is determined by the FTT: see s.72 and 73 of the MHA.  Under those provisions, the FTT must direct an absolute discharge: 
•	if it is not satisfied under s.s.72(1)(b):
“(i) that he is the suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive treatment; or (iia) that appropriate treatment is available for him”
•	and it is satisfied under s.73(1)(b) that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.
Where the first condition is met, but the second is not, then the FTT must direct a conditional discharge.
27.	However if a prisoner is sentenced to an indeterminate sentence of imprisonment and then transferred under s.47/49 of the MHA to a hospital, then his continued detention is governed by s.74 of the MHA.  If the offender applies to the FTT (as he entitled to do every 12 months), then the FTT must inform the Secretary of State whether in its view, the offender ought to be absolutely or conditionally discharged from the hospital under the tests we have set out in the preceding paragraph.  If its view is that the offender should be conditionally discharged then it may recommend that, if he is not discharged, then he should continue to be detained in hospital. 
28.	If the Secretary of State is notified that that the offender would be entitled to be absolutely or conditionally discharged, then the Secretary of State has 90 days within which to notify the FTT that the offender can be discharged; if the Secretary of State gives no such notification, then the offender is returned to prison unless the FTT has made a recommendation he should continue to be detained in hospital.
29.	If under these provisions the prisoner remains in hospital or is returned to prison, the question of the prisoner’s release from an indeterminate sentence (life or IPP) is then determined by the Parole Board applying the provisions of s.28 of the Crime (Sentences) Act 1997.  These provisions are applicable to prisoners subject to an indeterminate sentence.  Release can only be directed if the Parole Board is:
“satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”
30.	An offender is entitled to a review by the Parole Board at any time after the expiry of the minimum term and thereafter every two years after a previous  determination by the Parole Board (s.28(7) of the Crime (Sentences) Act 1997).
(b)	The lawfulness of utilising two judicial bodies as opposed to a single body
31.	It was contended in the civil appeal that the process under which the application has to be considered by both the FTT and the Parole Board was a breach of Article 5 (4).  A single judicial body should have made the determination.
32.	The regime under the Convention can be briefly summarised:
i)	Article 5(1) provides that no one shall be deprived of liberty save on bases that are enumerated in the Article and in accordance with a procedure prescribed by law; the bases enumerated in the Article include (a) detention after a criminal conviction and (e) the detention of persons of unsound mind.
ii)	Article 5(4) provides that  
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
iii)	States are entitled to choose different methods for discharging this obligation; the content of the obligation might not be the same as regards the different categories of deprivation of liberty.  The Strasbourg Court made that clear at paragraphs 51-54 of its judgment in X v UK (1982) 4 EHRR 188. 
iv)	Nonetheless the State is required to organise and resource its legal system to enable it to comply with the requirements of a speedy determination by a judicial body: see R (Noorkoiv) v Home Secretary [2002] 1 WLR 3284.  
33.	The argument advanced on behalf of Vowles was that as part of its obligation to organise its judicial system to comply with the obligation under Article 5(4) England and Wales had to tailor its system so that the cases were heard effectively; that required the question of detention to be determined by one body and not two.  Furthermore the present system was discriminatory contrary to the provisions of Article 14.  An offender transferred under s.47/49 of the MHA was discriminated against, as consideration of release had to be by two separate judicial bodies.  The position had to be contrasted as an offender subject to an order under s.37/41 of the MHA would only have to satisfy a FTT and an offender sentenced to an indeterminate sentence would only have to satisfy the Parole Board.  There was no justification for having to satisfy two different judicial bodies before a prisoner transferred under s.47 of the MHA could be released.
34.	In our view, the Convention does not require that the issues be determined by one judicial body and the current regime is therefore not incompatible with the Convention.
i)	As we have explained a court may determine that the appropriate disposal for an offender convicted of a crime is a hospital order under s.37/41 of the MHA.  If it so decides, then there is only one issue to be determined under the provisions of s.72 and s.73 of the MHA.
ii)	However, as the cases to which we refer at paragraphs 45 and following below make clear, a court is entitled to conclude that considering all the circumstances, including the elements of culpability that merited punishment and the existence of the risk of the offender causing serious harm even if the mental disorder is treated, a prison sentence is appropriate, despite the mental disorder.  In such cases courts have imposed sentences of indeterminate or long sentences of imprisonment and the Secretary of State has often exercised the power under s.47 of the MHA.  Moreover where in view of the future risk an indeterminate or long determinate sentence is one of the options a court must consider for an offender with a mental disorder, it is often the better course for reasons we have given to impose such a sentence with the court making a hospital and limitation direction under s.45A for the treatment of the disorder or leaving it to the Secretary of State to make a transfer direction under s.47.
iii)	In such cases Parliament has determined that there are two issues to be determined - (1) the issue as to whether the mental disorder or the need for treatment to protect the prisoner or the public requires his detention under ss.72-74 of the MHA and (2) the issue as to whether, mental disorder or treatment in hospital under a s.47 direction apart, the protection of the public requires the detention of the prisoner under s.28 of the Crime (Sentences) Act 1997.
iv)	We can see no basis on which it could be said a State is not entitled to choose these different tests; each meets a different concern and a different bases for detention under Article 5(1).
v)	Nor can we see a basis on which it can be said that, given the different nature of the tests set out in the legislation, a State is not entitled to establish differently constituted judicial bodies to determine the distinct issues which may arise in cases.  Although there is almost invariably an interrelationship between the risks arising out of the mental disorder and the risks otherwise arising, the risks are different.  For example, a court may sentence an offender with a mental disorder to an indeterminate sentence because the court has taken the view that even if the mental disorder is effectively treated, the risk of the offender committing serious harm will remain.  If that offender is transferred under s.47 of the MHA to a hospital for treatment, the FTT may determine that he no longer needs to be detained in hospital as the treatment has been successful, but the Parole Board still has its function of determining whether it is still necessary for him to be detained for the protection of the risks that otherwise arise. 
vi)	Although those are our principal reasons for our conclusion, we also agree with the further reasons given by Stanley Burnton J in R (P) v Home Secretary [2003] EWHC 2953 (Admin) at paragraphs 45-54.
vii)	It follows that Article 14 adds nothing to the argument; there was clear justification for the separate determinations.
35.	Although Parliament is not in any way constrained by the Convention by providing for separate judicial bodies, we would observe that there are wider issues which Parliament may wish to take into account in reconsidering the present regime:
i)	We are unpersuaded by the argument advanced by the Secretary of State that the information and evidence that the FTT and the Parole Board receive is different in its focus and origin.  It will often substantially overlap.
ii)	As the evidence before the court demonstrated, it is often difficult to distinguish between the effect of the mental disorder and of other factors.  It is clear that a judicial body, including the Parole Board and the FTT, will in practice, as distinct from theory, require all the relevant information in cases such as the present.  On the evidence we have heard the interrelationship between the mental disorder and the other factors affecting risk to the public will need to be considered in determining both whether the mental disorder has been sufficiently treated to require detention under the MHA and whether the offender can be released under the test set out in the Crime (Sentences) Act 1997.  A clear illustration is the decision of the Parole Board made on 21 March 2013 in the case of Vowles which we set out at paragraph 75 below; the principal reason why the release of Vowles was refused was because the risks linked to her mental disorder had not sufficiently reduced. 
iii)	It is apparent from the cases before us and from all the evidence, that it is very difficult to determine at the time of sentence the appropriate disposal.  As is apparent from the decisions of this court (to which we refer at paragraph 45 and following) and from our observations on the approach a sentencing judge should take (which we set out at paragraphs 51 and following), that a judge must focus on the effect of the different regimes for release, as the nature of the sentence predetermines that issue.  It would be much better if there was a single judicial body which could decide at the time release is being considered the terms of release and the appropriate regime for supervision in the community, rather than this determination being made years earlier without the benefit of all the evidence gathered in the intervening years.
iv)	The concept of burden of proof is not relevant in risk evaluation, even though the risk may be defined differently.  This was determined by the courts in relation to the Parole Board: see R (Sim) v Parole Board [2004] QB 1288; R (Brooks) v Parole Board [2004] EWCA Civ 80.  We agree with the submission that there is no difference in principle to the assessment of risk before the FTT. 
v)	The evidence before us was that in only about 10 per cent of the cases where prisoners transferred under s.47 had made an application to the FTT was a recommendation made under s.74(1)(b) which would require a hearing before the Parole Board.  But that is no reason why in such cases a different approach should not be considered if the limited resources for the determination of the issues are to be more efficiently deployed and made speedily.
vi)	It may well provide a greater degree of public confidence, particularly from victims, if there was a single body presided over by a judge which was bound to take into account all the factors relevant to release, the conditions of release and the regime after release.
Although these are simply our observations, we would urge Parliament to reconsider the issues.
(c) The overall obligation to make a speedy determination
36.	In our view, although the State is entitled to use two separate judicial bodies to determine the issues for the reasons we have given, the obligation to make a speedy determination applies to the overall process for determining whether a person is lawfully detained.  As the choice has been made to have the issues determined by separate judicial bodies, then the speediness must be considered by reference to the overall process of determining the lawfulness of the detention.  This will require tailoring the processes of the judicial bodies and providing them with sufficient powers and resources so that there is compliance with the obligation under Article 5(4).
37.	In Mooren v Germany (2010) 50 EHRR 23 an appellate court held that a lower court had made a defective decision on the remand of the applicant into custody, but did not set the decision aside and the applicant remained in custody.  Although the appellate court had the power to determine the issue as to whether the applicant should be released, it did not do so, but remitted the matter for decision by the lower court with the result that there was a significant delay in releasing the applicant.  The Strasbourg court concluded that in making an overall assessment of the proceedings, there had not been a speedy determination (see paragraphs 96, 103 and 106-7).  
38.	It was submitted on behalf of the Secretary of State that the principle of overall assessment was applicable only to a process where there was an appeal, but not to the review of the continued lawfulness of the detention of an offender where the issues had to be considered by two judicial bodies.  We do not agree.  As we have observed there is a close link between the two bases of detention of an offender with a mental disorder who is sentenced to an indeterminate sentence of imprisonment.  Although, for the reasons we have given, it is permissible to determine the issues separately, viewed both from the perspective of the protection of the public and the interests of the offender, the overriding common issue is whether continued detention is lawfully justified; that single issue is the issue which requires speedy determination.  Thus when those responsible for the material part of the process where it is said delay occurred are before the court – the Secretary of State and the Parole Board -, as they should always be, a court must look at the overall process (cf: In re D [2008] 1 WLR 1499 at paragraphs 32 and 39) and decide whether there has been a speedy determination.
39.	As we explain in more detail in relation to the first case of Vowles at paragraph 74.iii) below, the Secretary of State through an executive agency of the Ministry of Justice (MoJ), the National Offender Management Service (NOMS), has had since April 2010 a policy under which it will act so as to enable the Parole Board to determine the issue on continued detention under s.28 of the Crime (Sentences) Act 1997 within 13 weeks of a decision of the FTT under s.74 (2) of the MHA.  This is a clear recognition of the need to act within a timescale that is applicable overall to the determination of the issues relevant to the lawfulness of the detention undertaken by both judicial bodies – the Parole Board and the FTT, as this time table has halved the timetable for determination where only the Parole Board is involved.  That period of 13 weeks, commencing immediately after the decision of a FTT (provided it has acted with proper despatch), seems to us to be what is required as an energetic and rapid approach (as described in and required by the decision in R (Rayner) v Home Secretary [2009] 1WLR 310 at paragraph 21). 
40.	Furthermore in assessing the period of time within which a case should be determined, it is necessary to take into account the requirement that a Parole Board review takes place two years after the completion of the previous review.  Significant delay in progressing the determination of a review would entail disproportionate delay in the requirement for reviews every two years and the right to make an application for a review by the FTT every year.
(d)	Control of the process by the Parole Board
41.	The determination by the Parole Board is a judicial process.  It is self-evident that the obligation to make a speedy determination under Article 5(4) cannot be realised without active case management by the Parole Board.  The Parole Board has therefore adopted a process called “intensive case management”.  However the procedure so adopted, on the evidence before us, does not comply with its obligations, as active case management does not begin at the point of time at which the case is referred to the Parole Board, but only when the dossier of evidence is provided to the Parole Board by NOMS.  In cases such as the present where there has been a determination by the FTT, the obligation of the Parole Board is to undertake active case management from the moment of referral, in the same way as it is the duty of a court actively to manage its cases from the time cases are commenced before a court.  That is a duty that rests on the Parole Board; it is not dependent on an offender making the running on case management.
42.	There is another aspect in which the Parole Board is further disabled from complying with its obligations to make a speedy determination, as it has no specific statutory powers to enforce its case management directions.  It is difficult to see how it can properly and actively manage cases without such a power.  A party can of course apply for a witness summons to the High Court or County Court under CivPR 34.4, but that is of very limited relevance in enforcing compliance with directions, such as the service of reports.  It is plainly essential that the Parole Board be given such a power.  In the interim, as a significant number of the directions of the Board require action by the MoJ or NOMS, there is no reason, pending the introduction of such a power, why the MoJ and its agency NOMS cannot give an undertaking to the Parole Board to comply with its directions and appropriate administrative or disciplinary action taken by the MoJ and NOMS against employees who do not comply with the directions of the Parole Board.
(e)	The facts of each case
43.	Whether the determination in any given case complies with the obligation of speediness is a matter to be determined on the facts of each case.  We set out our conclusions in relation to the first case, Vowles, at paragraphs 82 and following.
(4)	The approach to sentencing
(a)	The case law
44.	In some of the early cases, and in particular R v Howell (1985) 7 Cr App R(S) 360, there are observations which might suggest that it was usually appropriate, in the event of the psychiatric evidence meeting the test set out in s.37 (2) (a) as it was originally enacted, for a hospital order to be made.  The conditions in (b) were not an important consideration.  For example, in Howell the defendant who had raped twice and was described as extremely dangerous, was suffering from schizophrenia and a serious personality disorder; he had been sentenced by the trial judge to life imprisonment.  The court observed that the trial judge had imposed that sentence to try and ensure that, if the defendant were ever to be released from treatment, he would return to prison and so be subject to the Home Office scrutiny before final release.  The court observed:
“We do not think that the course taken by the judge, although we understand his reasons well, was a proper one.  In circumstances such as these, where medical opinions are unanimous and a bed in a secure hospital is available, we think that a hospital order under s.37 of the Act should be made together with a restriction order without limit of time under s.41.”
This approach was followed in a number of cases, including Mbatha (1985) 7 Cr App R(S) 373, De Silva (1994) 15 Cr App R(S) 296, Mitchell [1997] 1 Cr App R(S) 90, Hutchinson [1997] 2 Cr App R(S) 60, Roden [2006] EWCA Crim 1121 and Evans [2012] EWCA Crim 1193.  
45.	However, these decisions need to be read in the light first of the general background and second of the importance of the amendments made by the Mental Health Act 2007 which came into force in November 2008. 
46.	First, the general background was set out in the greatest clarity in the judgment of this court given by Mustill LJ (as he then was) in Birch (1990) 90 Cr App R 78.  The court made clear that the court had to have regard to the conditions set out in s.37(2)(b).  It pointed out that a hospital order under s.37, without a restriction order under s.41, had the following characteristics:
“A hospital order is not a punishment.  Questions of retribution and deterrence, whether personal or general, are immaterial.  The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment.  The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.”
Mustill LJ went on to point out that when a restriction order was made under s.41 the effect essentially was that the responsibility for the return of the patient to the community was transferred to what is now the FTT.  He also made clear that before the powers under s.37 of the MHA were invoked, the judge had to consider the connection between the defendant’s mental disorder and the offending conduct:
“Where the sentencer considers that, notwithstanding the offender's mental disorder, there was an element of culpability in the offence which merits punishment.  This may happen where there is no connection between the mental disorder and the offence, or where the defendant's responsibility for the offence is “diminished” but not wholly extinguished.  That the imposition of a prison sentence is capable of being a proper exercise of discretion is shown by …
In the absence of any question of culpability and punishment, the judge should not impose a sentence of imprisonment simply to ensure that if the Review Tribunal finds that the conditions under section 73 are satisfied and is therefore constrained to order a discharge, the offender will return to prison rather than be set free: Howell (1985) 7 Cr.App.R. (S.) 360 and Cockburn (1967) 52 Cr.App.R. 134.”
47.	This passage underlined the importance of the observations which Lord Lane CJ had made in Castro (1985) 7 Cr App R(S) 68 where he stressed that the sentence had to be looked at, not only from the point of view of the offender but also from the point of view of the public.
48.	More recently this court has emphasised the need to examine the issues with great care and to take into account not merely the psychiatric evidence but also broader issues such as the extent of the culpability attributable to the mental disorder, the need to protect the public and the regime on release.  For example,
i)	In Khelifi [2006] 2 Cr App R(S) 100 the court concluded the judge was right in imposing a sentence of 5 years imprisonment for conspiracy to defraud, as the psychotic illness from which he suffered responded to treatment and had not been, at the time of the crime, so severe as to disable him from his culpability for participation in that serious crime.  The court made clear that there was no presumption that if the conditions in s.37(2)(a) were met an order would be made.
ii)	In AG’s reference No. 54 of 2011 [2012] 1 Cr App R(S) 106, the defendant killed a person and was convicted of manslaughter.  Although he developed a paranoid psychosis when on remand, he had no mental disorder at the time of the offence.  The judge made a hospital order under s.37/41.  When allowing a reference by the Attorney General and imposing a sentence of IPP with a minimum term of 6 years, Hughes LJ (as he then was) observed that a court had to take into account the significant risk of serious harm if the defendant was released after his psychosis had been successfully treated.
17.  It is true that the detention for public protection regime and the s.37/41 hospital order regime have features in common.  Under both regimes discharge on release is discretionary and in the hands of the Secretary of State, that is to say the Ministry of Justice.  In both cases regard is had in making the discretionary decision whether or not to release to danger.  In neither case is there any absolute right to release.  Secondly, release under both regimes is conditional and the defendant is subject to recall.  That said, there is an absolutely crucial difference between the two forms of regime.  Under an order for detention for public protection release is dependent upon the responsible authority being satisfied that the defendant is no longer a danger to the public for any reason and principally not at risk of relapsing into dangerous crime.  Under the hospital order regime release is dependent upon the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition.  Similarly, and critically, release under the detention for public protection regime is on licence and the licence can be revoked if the defendant shows that he remains a danger to the public from crime.  It is possible and indeed inevitable that the licence conditions will be designed, among other things, to prevent association with dangerous criminals.  Under the hospital order regime, recall is available but only if the defendant’s medical condition relapses.  Simple crime does not trigger a recall under the hospital order regime.
After referring to the evidence as to the regime that would be available if a hospital order was made, Hughes LJ continued: 
20…. The psychiatric authorities have a good deal fewer people to deal with for one thing.  But whilst that may be true, the intensity of supervision is no substitute for the test for release and the test for recall to which the supervision has to be directed.
iii)	In Jenkin [2013] 2 Cr App R(S) 15 the defendant was sentenced to life imprisonment with a direction under s.45A of the MHA and a restriction under s.41.  He suffered from a delusional disorder which was responding to anti-psychotic drugs.  Lord Judge CJ in giving the judgment of the court concluded that the sentencing judge was right to reject the recommendation of a hospital order under s.37/41.  Even if the mental disorder was cured or substantially alleviated, the risk of serious harm remained.  
iv)	In Teasdale [2012] EWCA Crim 2071 the defendant’s schizophrenia had not been diagnosed at the time of sentence and life sentences were imposed.  Fresh evidence was admitted which demonstrated the diagnosis.  It was the court’s view that a hospital order under s.37/41 should be substituted for the reasons set out at paragraph 26 of its judgment, including the better protection of the public, the consideration that the FTT would be better able to deal with the decision on release and the regime on release would better protect the public.  A similar conclusion was reached in Colborne  [2014] EWCA Crim 286.
49.	Second, the amendments made by the Mental Health Act 2007 must be taken into account when considering the earlier decisions.  The most important is the amendment to s.45A.  As we have noted in paragraph 20 above, the fact is that few hospital directions under s.45A have been made since the section was amended to take into account the criticisms made of it.  It is striking, as is apparent from the commentaries of the late Dr David A Thomas on the cases decided prior to the amendment (to which we have referred at paragraph 17), how it was anticipated that the section would, after amendment, address the issue so evident in many of the decisions of this court as to the appropriate balance between ensuring treatment in a hospital and protecting the public; see also his commentary on Welsh at [2011] Crim LR 421.  That anticipation should have been realised, but, as the numbers make clear, it has not been.  The availability of such a direction is therefore a further factor which necessitates care when considering the observations in cases prior to 2008.  However, as the sentencing in each of the appeals before us took place before s.45A came into force, it is unfortunate that we have not been able to consider its application in any of the appeals.
(b)	The evidence from the psychiatrists 
50.	The task of the judge in determining which is appropriate is seldom easy given the following factors which the oral evidence of the psychiatrists, particularly Professor Don Grubin, Dr James Stoddard and Dr Patricia Abbott, who gave evidence before us, highlighted:
i)	As we have set out at paragraph 23, it is often very difficult to make a definitive diagnosis after the usual type of interview in prison.  There were the difficulties in getting into the prison and the environment for the interview was not usually calm or peaceful, but subject to the ordinary incidents of a prison regime.
ii)	Although an interim hospital order under s.38 of the MHA would enable a much better assessment to be made, an increase in the use of such orders would have severe implications for secure hospital bed usage at a time when there is severe pressure on secure hospital beds.  The statistics provided to us showed that the number of restricted patients has risen each year.  In 2003 there were 3,118 such patients.  In 2013 there were 4,449; of those detained in 2013, 3,083 had committed offence of violence against the person, 592, sexual offences, and 221 robbery.
iii)	A hospital and restriction order under s.37/41 is more likely to be appropriate in a case where the mental disorder is a severe mental illness (particularly a psychotic illness or an organic brain disorder) rather than a personality disorder.  That is because it is more likely that such an illness may have a direct bearing on the offender’s culpability and because the illness is likely to be more responsive to treatment in a hospital.  In contradistinction it is more difficult to attribute a reduction in culpability to a personality disorder and at present individuals with severe personality disorders are less likely to benefit from hospitalisation.
iv)	It is very rare for a person to have solely a psychotic illness such as schizophrenia or solely a personality disorder.  A person who suffers from schizophrenia alone is very rare.  It is usual for a person suffering from psychosis also to have a personality disorder and/or drug and alcohol problems. 
v)	Treatment in hospital for those with personality disorders under a hospital and restriction order under s.37/41 of the MHA should generally only be considered for those who also have a mental illness or brain damage.  There are two major considerations.  First if an order is made under s.37/41 of the MHA, then if the disorder is in the result untreatable, there is a risk that the offender will remain in hospital for an indefinite period, as the FTT cannot release him if the risk to the public continues.  Psychiatrists are therefore concerned to ensure that they are not “stuck” with such an offender.  This is a serious risk which psychiatrists are anxious to avoid.  Second a range of treatment of those with personality disorders is available in a range of specialist prisons. 
vi)	If an offender sentenced to prison is subsequently diagnosed as having a psychotic illness, a transfer under s.47 of the MHA will be made.  However two difficulties not infrequently arise.  The first is that on return to prison, the offender does not take anti-psychotic medication and suffers a relapse.  Second the provision of supervision in the community is likely to be less robust than the provision of supervision available to those subject to orders under s.37/41.
vii)	If an offender on remand is transferred under s.48 to hospital (exercising the power to which we have referred at paragraph 25), a court should always have the evidence of the treating clinician made available to it.
(c)	Our guidance on the approach to be adopted
51.	It is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions.  A judge must therefore consider, where the conditions in s.37 (2) (a) are met, what is the appropriate disposal.  In considering that wider question the matters to which a judge will invariably have to have regard to include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release.  There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out. 
52.	As to the fourth of the considerations to which we have referred, Lord Bingham at paragraph 23 of his judgment in Drew, which was decided prior to the amendment of s.45A, accepted that there was force in the submission of the Secretary of State that where the medical criteria were met, judges had given less than adequate weight to the conditions governing release.  He was, at that time, unpersuaded that a change in practice was desirable.  In the light of the amendments to s.45A, the observations of Hughes LJ which we have referred at paragraph 48.ii) and the general evidence before us, we consider that a judge when sentencing must now pay very careful  attention to the different effect in each case of the conditions applicable to and after release.  As is shown by the case of Teasdale to which we have referred at paragraph 48.iv), this consideration may be one matter leading to the imposition of a hospital order under s.37/41.
53.	The fact that two psychiatrists are of the opinion that a hospital order with restrictions under s.37/41 is the right disposal is therefore never a reason on its own to make such an order.  The judge must first consider all the relevant circumstances, including the four issues we have set out in the preceding paragraphs and then consider the alternatives in the order in which we set them out in the next paragraph.
54.	Therefore, in the light of the arguments addressed to us and the matters to which we have referred, a court should, in a case where (1) the evidence of medical practitioners suggests that the offender is suffering from a mental disorder, (2) that the offending is wholly or in significant part attributable to that disorder, (3) treatment is available, and it considers in the light of all the circumstances to which we have referred, that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, consider the matters in the following order:
i)	As the terms of s.45A (1) of the MHA require, before a hospital order is made under s.37/41, whether or not with a restriction order, a judge should consider whether the mental disorder can appropriately be dealt with by a hospital and limitation direction under s.45A.  
ii)	If it can, then the judge should make such a direction under s.45A(1).  This consideration will not apply to a person under the age of 21 at the time of conviction as there is no power to make such an order in the case of such a person as we have set out at paragraph 19 above.
iii)	If such a direction is not appropriate the court must then consider, before going further, whether, if the medical evidence satisfies the condition in s.37(2)(a) (that the mental disorder is such that it would be appropriate for the offender to be detained in a hospital and treatment is available), the conditions set out in s.37(2)(b) would make that the most suitable method of disposal.  It is essential that a judge gives detailed consideration to all the factors encompassed within s.37(2)(b).  For example, in a case where the court is considering a life sentence under the Criminal Justice Act 2003 as amended in 2012 (following the guidance given in in Attorney General's Reference (No.27 of 2013), R v Burinskas [2014] 1 WLR 4209), if (1) the mental disorder is treatable, (2) once treated there is no evidence he would be in any way dangerous, and (3) the offending is entirely due to that mental disorder, a hospital order under s.37/41 is likely to be the correct disposal.
iv)	We have set out the general circumstances to which a court should have regard but, as the language of s.37 (2)(b) makes clear, the court must also have regard to the question of whether other methods of dealing with him are available.  This includes consideration of whether the powers under s.47 for transfer to prison for treatment would, taking into account all the other circumstances, be appropriate.
55.	If the court, after considering the matters set out in s.37(2)(b), considers that a hospital order is the most suitable method, then it will generally be desirable to make such an order without consideration of an interim order under s.38 unless there is very clear evidence that such an order is necessary.
56.	Although the course of these appeals might suggest that making an interim hospital order might be an appropriate step to take, a judge should pause long and hard before making such an interim order.  Although, as was the evidence before us, there are now a number of private providers to the NHS who have facilities at which offenders who are the subject of interim orders can now be held, the making of such an order has the consequence that as regards the victim of the crime there is no closure until the final order is made, there are significant costs to the general administration of justice in bringing a case back to court and there is acute pressure on the availability of secure beds.

PART 2: THE CIRCUMSTANCES OF EACH APPEAL	
I	LUCINDA VOWLES
57.	It is convenient first to set out a narrative account of the circumstances of the offence, the decision of the sentencing judge, and the subsequent history of her transfer under s.47 and the hearings before the FTT and Parole Board.  We will thereafter set out our decision on the civil appeal and then the evidence on the criminal appeal and our decision on that appeal.
(1)	The factual background
(a)	The offence and the sentence
58.	On 13 March 2008, Vowles set fire to some newspapers on her bed in her flat and left the premises.  She telephoned a neighbour to warn her of the fire.  She did not check whether other people would be endangered by the fire.  A neighbour and her child had to be evacuated.  Damage in the region of £1,500 to £3,000 was caused.
59.	When questioned about the offence, Vowles said that she had lit the fire because she felt unable to cope, due to the poor condition of the flat, the fact her landlord was demanding rent and that her girlfriend was in prison. 
60.	On 14 May 2008, the applicant Lucinda Vowles was sentenced by Mr Recorder Nicholas Parry (as he then was) at the Crown Court at Mold to IPP (with a minimum term of 18 months’ imprisonment) for the offence of arson under s.1(2) and (3) of the Criminal Damage Act 1971, to which she had pleaded guilty.  She did not appeal, but in 2010 applied to the Criminal Cases Review Commission who declined to refer her case.  She then sought leave to appeal in April 2010.  That was refused by the Single Judge. 
61.	In May 2013, over two and a half years after the refusal, Criminal Defence MK Solicitors sought on her behalf to renew her application to the Full Court.
(b)	Her previous history
62.	Vowles, who was born on 20 September 1963, had been admitted to hospital on numerous occasions under the MHA.  In 1982, a hospital order under the then equivalent of s.37 was made after an offence of attempting to administer poison to her father.  She was convicted of two offences of arson in 1980 and 1981.  She claimed to hear voices and had repeatedly tried to self-harm and harm others.  She committed various other criminal offences in the period to 1988, the most serious of which was causing grievous bodily harm with intent; there were no recorded convictions between 1988 and 2008.  She was detained in psychiatric hospitals on various occasions.
63.	In 2004 Vowles suffered a brain injury following an attempted suicide by jumping from a bridge. 
64.	On 10 March 2008, she was admitted to hospital with suicidal thoughts.  On 12 March 2008, the day before committing the offence of arson, she voluntarily discharged herself. 

(c)	The evidence before the sentencing judge

65.	There was before the sentencing judge at the sentencing hearing a pre-sentence report dated 13 May 2008 and a psychiatric report from Dr Heads, a consultant forensic psychiatrist at Bryn-y-Neuadd Hospital, Conway dated 29 April 2008.  Both reports concluded that Vowles posed a high risk to the public. 
66.	Dr Heads’ opinion that was she suffered from a borderline personality disorder which manifested itself in disturbed and impulsive behaviour, repeated and serious self-harming, aggressive outbursts and low mood; in addition she had some degree of brain damage due to her head injury in 2004.  Although she suffered from significant mental health problems, he did not consider she suffered from problems of a nature or degree that would benefit from hospital admission.  She could receive treatment for her mental health problems in prison.
67.	As a consequence, it was not open to the sentencing judge to make a hospital order under s.37.  The sentencing judge took the view that despite Vowles not having committed any offences for 20 years, she had been convicted for arson on two previous occasions, and so he was entirely satisfied that Vowles was dangerous and a sentence of IPP was necessary.
(d)	The review by the Parole Board in 2010

68.	Vowles’ tariff expired in September 2009; she had not completed any of the courses because of her behavioural problems and violence. 
69.	On 4 June 2010, a panel of the Parole Board (unidentified in accordance with the practice of the Parole Board) considered her case.  The evidence of Dr Norrington-Moore, a consultant forensic psychiatrist was that she should be assessed at a brain injury unit.  The panel concluded that she should not be released because she continued to pose a very high risk.  She was notified of this on 8 July 2010 by a letter from the Public Protection Casework Section at the National Offender Management Service, an executive agency of the MoJ, (NOMS).  The letter stated that her next review would commence in November 2011, with a hearing in May 2012.
(e)	Her transfer to hospital in July 2010
70.	 On 27 July 2010, she was transferred from HMP Styal under s.47/49 of the MHA to the National Brain Injury Unit at St Andrew’s Hospital, Northampton where she underwent psychological work primarily targeted at her brain injury.  Her time there was characterised by acts of self-harm and aggression, but from September 2011, her condition improved.  It was recommended by her treating clinician, Dr Chu, that she be moved on to have her personality disorder treated.  It was Dr Chu’s view that there was a clear nexus between the offence and her mental disorder
(f )	The review by the FTT in 2011
71.	On 24 May 2011, Vowles applied to the FTT for a review of her detention under the MHA.
72.	On 12 December 2011, the FTT (Judge Peter Morrell and two members) determined that Vowles was suffering from a mental disorder which made it appropriate for her to be detained for treatment but that it was not necessary for the safety of the public she be detained for such treatment.  The FTT would have ordered her conditional discharge provided suitable arrangements were made for that conditional discharge, if she had been detained under s.37/41 of the MHA rather than under s.47.  It recommended her continued detention in hospital if she was not discharged, as otherwise her improvement would be put at risk.  She should be moved on from St Andrews to a low secure unlocked unit or to an appropriately staffed hostel.
(g)	The reference to the Parole Board in 2012  
73.	Her case was therefore referred to the Secretary of State under s.74(2) of the MHA; that sub-section imposed on the Secretary of State an obligation to notify the FTT within 90 days of his decision in relation to Vowles’ discharge.  It was the policy of the Secretary of State set out in Chapter 10 of the MHCS Casework Manual never to agree to a conditional discharge in such cases.  The case therefore had to be referred to the Parole Board.  The panel of the Parole Board did not make its decision until 13 March 2013 – a delay of some 16 months from the decision of the FTT and 22 months after Vowles’ application to the FTT. 
74.	The events that explain the delay after the decision of the Parole Board can be summarised:
i)	The decision of the Parole Board was received by the Mental Health Casework Section at the MoJ on 19 December 2011. 
ii)	On 9 January 2012, a senior manager considered the Parole Board decision and confirmed that he was content with the legality of the decision.  On the same day, NOMS began the Generic Parole Process set out in Prison Service Order 6010.  Under the Generic Parole Process, there was a 26 week timetable for the preparation by NOMS of the dossier for the Parole Board ending on the start of the month in which the hearing was to take place, subject to adjustments in particular cases.
iii)	The process set out in Prison Service Order 6010 should not have been applied; instead NOMS should have applied the revised Chapter 15 of Prison Service Order 4700 which, although in force since 19 April 2010, was unknown to the relevant officials dealing with the case.  Under that Order, in the case of a prisoner who was subject to life imprisonment or IPP, whose minimum term had expired and in respect of whom the FTT had recommended conditional discharge or detention in hospital if not discharged, NOMS should have referred the case to the Parole Board for listing as soon as possible to consider release direct from the hospital.  The timetable was 13 weeks and not 26 weeks.  Those at NOMS dealing with the case were unaware of the proper policy.  The Parole Board were unaware of the policy until 17 March 2014, the day before the hearing before Irwin J.
iv)	The Parole Board was informed on 10 January 2012 that the process of a reference to it had begun.  The evidence given by Mr Davidson, a senior civil servant at NOMS, was that extra time was needed as the Offender Manager would not have seen Vowles for some time.  The 26 week timetable (which NOMS wrongly applied) was therefore adjusted so that an oral hearing was set for August 2012.
v)	Applying that timetable, the Offender Manager’s report was scheduled for 28 March 2012 with the provision of the dossier to the Parole Board on 4 April 2012.
vi)	On 2 March 2012, a partly completed dossier was sent to the Parole Board; it was missing the Court’s sentencing remarks and the Offender Manager’s report. 
vii)	Campbell Law Solicitors (who had instructed Mr Southey QC) had been pressing the MoJ since 15 December 2011 for a decision and then a speedy hearing of the Parole Board proceedings.  On 30 January 2012, they wrote a letter before action to the MoJ alleging a lack of expedition.  On 21 March 2012, these solicitors were granted legal aid funding and commenced on 26 March 2012 judicial review proceedings on the basis that the delay in listing the Parole Board hearing amounted to a breach of Article 5(4).  An urgent hearing was sought.  Leave was refused by Lang J on 27 March 2012.  However Criminal Defence MK Solicitors continued to act for Vowles in the proceedings before the Parole Board.
viii)	On 29 March 2012, NOMS sent the completed dossier to the Parole Board.  Although the Offender Manager had seen Vowles on 6 February 2012 at St Andrews, the report was delayed for reasons that is said to be due to sick leave; no details of this were provided.  The Offender Manager advised against release and recommended that she be detained in a secure environment.  He mentioned a possible transfer to Plas Coch, an independent hospital near St Asaph, for treatment of her personality disorder.
ix)	It was only then that the Parole Board took charge of the case and commenced its “intensive case management process”.  On 4 April 2012, a single panel member (unidentified in accordance with Parole Board practice) made intensive case management directions; these required the Offender Manager to provide a short addendum report by 30 April 2012 dealing with the proposed transfer to Plas Coch and behavioural issues.  However, as a result of what was described in the Parole Board evidence as an “administrative oversight”, the directions were not sent to the parties until 23 April 2012.  Criminal Defence MK Solicitors (who continued to deal with the hearing before the Parole Board) requested an extension of time to file representations; this was granted and the representations filed on 10 May 2012.
x)	Although the matter was subject to the case management procedure of the Parole Board, NOMS, in contrast to the procedure followed by Criminal Defence MK Solicitors, decided without reference to either the Parole Board or Vowles’ solicitors that it would not comply with the Order of the Parole Board.  Instead it gave the Offender Manager until 4 May 2012 to comply with the Order for an addendum report.  The Offender Manager promised the report by that time, but did not in fact provide it until 27 June 2012, some 8 weeks after the due date.  She supported the move to Plas Coch.  
xi)	No proper explanation was given to us as to why NOMS acted as it did in failing to seek a variation of the directions and acting unilaterally. 
xii)	 Following the receipt of the Offender Manager’s report, the legal advisor at the Parole Board dealing with the judicial review contacted Criminal Defence MK Solicitors on 29 June 2012 to inform them that she was thinking of putting the case before the panel of the Parole Board, but wanted first to know whether they wanted to consider the Offender Manager Report or take instructions first.  The solicitor at Criminal Defence MK Solicitors dealing with the matter was away and then said she wanted to see her client.  On 4 July 2012, the Board notified these solicitors that the case would not be put to the panel until they had seen Vowles and taken instructions.
xiii)	On 4 July 2012 Vowles was moved to Plas Coch Hospital.
xiv)	On 9 July 2012, the renewed application for judicial review was heard by Mr Philip Mott QC, sitting as a Deputy Judge.  In a careful judgment, he refused permission as the delay was not at that stage unreasonable, but made clear that the matter should be dealt with as expeditiously as possible.  Applying the timetable set out in the Intensive Case Management order, he observed that the hearing should be by the end of September, but expressed the hope that the hearing would be expedited.  All the indications were that it would be.
xv)	On 8 August 2012, an update was received from Criminal Defence MK Solicitors stating no further representations were to be made.  The papers were then forwarded to the single member of the Parole Board; it appears that the single member was not made aware of the decision of Mr Philip Mott QC.  The single member made further directions on 17 August 2012, directing that a report from the responsible clinician at Plas Coch was required by 31 October 2012.  The directions stated:
“The panel has directed that his case progress to an oral hearing but has been deferred for three months… Ms Vowles has been transferred to Plas Coch in early July and a report will be required from the lead clinician… Once this report is available the offender manager will be required to provide an updated parole report outlining risk assessment from her perspective and overall case management responsibilities. 
….
The case will not be put forward for an exact hearing date until all the above Direction(s) are fully complied with.  When the case is ready it will be put forward for the next scheduled listing exercise.  Scheduled listing exercises take place three months ahead of the hearing month” (emphasis added)
xvi)	The directions were not sent to the parties until 5 September 2012; no explanation was provided for this delay.  In the e-mail forwarding the directions, the case manager stated that the single member had also deferred the case for a period of 3 months.  Availability of witnesses was sought for December 2012, January 2013 and February 2013.  The e-mail concluded:
“Under the introduction of the Generic Parole Process, it will no longer be the Parole Board’s responsibility to implement [Intensive Case Management] directions or obtain witness availability.  This is the responsibility of the Prison Service and will be overseen by the Public Protection Casework Section at the Ministry of Justice ….” 
	As we have explained, the Parole Board were unaware of the policy that had replaced the Generic Parole Process for prisoners in the position of Vowles.
xvii)	The report of the responsible clinician, Dr Gupta, was provided on 19 November 2012.  He set out his management plan which envisaged a gradual increase in unescorted leave.  He concluded by recommending that the Panel should give more time (3-4 months) to see how unescorted community leave progressed.
xviii)	On 21 January 2013, the Parole Board fixed the hearing for 12 March 2013.  On 27 February 2013, the Offender Manager’s further report dated 19 February 2013 was sent to the Parole Board.  He concluded that the risks had not sufficiently reduced to enable her to be managed in the community.
xix)	Her responsible clinician Dr Gupta, in a further report dated 1 March 2013 recommended a further 3-6 months to test unescorted community visits.  Dr Sandeep Matthews, a consultant forensic psychiatrist, who assessed Vowles on 13 December 2012 and on 13 February 2013, also produced a report.  He did not obtain any detailed information about any therapeutic work she may have undertaken, but he simply recorded that his limited understanding was that she had not addressed her offending behaviour, as she had refused to do so.  He concluded that in the absence of any successful programme for reducing arson risk and considering Vowles’ impulsive behaviour which was still evident, she still posed a high risk of future fire-setting.
xx)	Ms Krause instructed by Criminal Defence MK Solicitors represented Vowles at the hearing on 12 March 2013.  She did not seek Vowles’ release, but invited an adjournment of 6 months for a programme of unescorted visits and preparation of arrangements for her to be managed in the community. 
(h)	The decision of the Parole Board in March 2013
75.	On 21 March 2013 a panel of the Parole Board (again unidentified in accordance with Parole Board practice) made its decision.  It declined to adjourn the hearing, but determined that Vowles continued to pose a significant risk of fire-setting and decided not to direct her release:
“In summary, the panel accept the argument presented that your risks of aggression and fire setting are intrinsically linked to your mental disorder and that those risks have not reduced to a level commensurate with their safe management in the community….  Numerous mental health professionals, including consultant forensic psychiatrists have confirmed the relevance of both your personality disorder and the effects of your brain injury to your current presentation of risk.”
76.	On 18 April 2013, NOMS informed Vowles that her next review would commence in March 2014; the process leading to a hearing would take 26 weeks.  The hearing would have a target date of September 2014.
(i)	Decision of the Mental Health Review Tribunal for Wales
77.	Vowles applied later in 2013 to the Mental Health Review Tribunal for Wales, the Welsh equivalent of the FTT.  The Mental Health Review Tribunal for Wales heard the application on 18 December 2013, but had to adjourn the application
78.	On 28 February 2014, the Mental Health Review Tribunal for Wales (Mark Powell QC and two members) reached a similar conclusion to the decision which the FTT had reached in 2011.  She was coping well with stressful situations and had long periods of unescorted leave.  The Tribunal expressed the view that all the evidence that they had heard reinforced their surprise that when sentenced she received a sentence of IPP rather than a hospital order under s.37/41.  Recall to prison would be completely inappropriate; it would be likely to undermine all the therapeutic work that had brought about the improvement in her health.
(j)	The judicial review of the decision of the Parole Board: the decision of Irwin J in May 2014
79.	On 23 July 2013, the Court of Appeal granted permission to bring judicial review proceedings.  The hearing of the judicial review took place before Irwin J on 18 and 19 March 2014.  He concluded that criticisms could be made of what had been done by NOMS and the Parole Board; a timetable should have been set in accordance with the revised policy for April 2012.  However, a faster timetable and the elimination of delays would have made no difference as it was essential to have proper evidence of Vowles’ progress after transfer to a low secure unit.  Nothing would have been gained by a hearing in April 2012, as Vowles would not have been at Plas Coch by then.  Once she was placed there in July 2012, it was apparent that time would be needed to assess her progress.  It was reasonable to have ordered a report from the responsible clinician in August 2012 and the responsible clinician, Dr Gupta, had asked for a further 3-4 months in November 2012 and the hearing had then been fixed for March 2013 – within that period.  There was therefore no breach of the obligation to make a speedy determination.
(k)	Parole Board Decision of 13 November 2014
80.	After the argument in the criminal and civil appeals a panel of the Parole Board made a further decision on 13 November 2014.  It found that she had engaged with psychologists in relation to her personality disorder and that there were no current mental health problems; she was working with the police and fire service in relation to fire-setting; she was spending much more time in the community.  As there was a robust risk management plan in place and the panel was satisfied that there were no real concerns about compliance, her release would be directed on conditions including complying with conditions imposed by her Offender Manager, attending all appointments with psychiatric services and complying with all treatment recommended.
(2)	Our conclusion on the civil appeal
(a)	The submissions made on behalf of Vowles
81.	It was the submission of Mr Southey QC on behalf of Vowles that the delay had been unreasonable:
i)	The Parole Board had been unable to progress the case because no dossier was sent to it until 29 March 2012.  Although time was needed by NOMS to prepare papers, the process was mechanistic and not directed at considering the circumstances of particular cases.
ii)	There were periods of administrative delay in sending out the orders for directions between 4 and 23 April 2012 and between 17 August and 5 September 2012 which were never explained and were inexcusable.
iii)	The delay in listing after the receipt of the psychiatrist’s report on 19 November 2012 was inexcusable.
iv)	There was no need in the circumstances for decisions by both the Parole Board and the FTT; if there was then no steps had been taken to expedite the proceedings; there had been significant periods of time when the Parole Board had not exercised any, or any proper, judicial control over the proceedings.
v)	The fact that Vowles was not successful was irrelevant; she was entitled to a speedy determination and that had been denied to her.
 (b)	Was there a failure to act speedily?
82.	It is first necessary to consider the process actually adopted.  As we have set out at paragraph 36, it is necessary to look at the overall time taken to determine the lawfulness of her detention.  Although no criticism was made of the time taken by the FTT in reaching its decision, it is necessary to keep in view the fact that that determination had taken from May 2011 to December 2011, a period of 7 months. 
i)	As soon as the decision of the FTT had been made, it was clear, in the light of the policy of the Secretary of State never to agree to a conditional discharge (see paragraph  73), that the case would have to be referred to the Parole Board.  The only lawful and proper course for the Secretary of State to have followed in the light of that policy and the obligation to make a speedy decision was an immediate referral of the case to the Parole Board within days of the decision. 
ii)	As the Parole Board acts in a judicial capacity, the only proper course for it to have followed was to make directions immediately on referral to it.  There was a sufficiency of material in the FTT’s decision and its previous decision to enable the single member to make detailed directions; it did not require the provision of the dossier.  There was no reason why this could not have been done within 14 days of the referral of the case to the Parole Board, rather than in April 2012.
iii)	 The directions then made would have provided for the timely preparation of the report by the Offender Manager; as the FTT decision made it clear she should be transferred to a low secure unit, the directions should have provided that the Offender Manager report on the up to date position.
iv)	The Parole Board should have monitored compliance with its directions and with progress in the case with considerably greater diligence and effectiveness; it did not do so, but permitted one of the parties, the MoJ, unilaterally to vary the directions.
v)	We can see no reason why therefore in this case, compliance with the 13 week timetable could not have been achieved by prompt referral by the Secretary of State and proper case management by the Parole Board.
vi)	In the circumstances, it is not necessary to consider the administrative failings that were also evident, particularly the failure by the Parole Board on two occasions to send its orders out promptly, the failure to fix hearing date in September 2012 in accordance with the observations of Mr Phillip Mott QC and the delay in listing the case thereafter.
(b)	Was there a failure to make a speedy determination under Article 5(4)?
83.	Although our criticisms of the MoJ, NOMS and the Parole Board go further than the criticisms made by the judge, the real issue in the appeal is whether, in view of the need to assess Vowles in a low secure unit, that determination could have been made in a materially shorter time than it was actually made. 
84.	We accept that there can be a violation of Article 5(4) even if the determination is adverse to the claimant; the claimant is entitled to insist on observance of his procedural rights (see for example, R (Sturnham) v Parole Board [2011] EWHC 838 (Admin)).  Indeed as the Supreme Court determined in R (Faulkner) v Secretary of State for Justice; R (Sturnham) v Parole Board  [2013] 2 AC 254, a prisoner is entitled to damages on a modest scale if it is established he has suffered feelings of frustration and anxiety even where it is not established that an earlier hearing would have resulted in earlier release  (see paragraph 13 of the judgment of Lord Reed).
85.	However, in the present case, the issue is not as to the outcome of the determination, but as to whether a determination conducted without the failures which we have set out in paragraph 82 would have been possible given the need to assess Vowles at a hospital, such as Plas Coch, that was able to address other aspects of her mental disorder that could not be addressed at St Andrews, as recommended by the FTT in its decision of 2011. 
86.	In our judgment, it is clear that no decision could have been made to release Vowles until there had been a proper period of assessment at hospital such as Plas Coch.  No criticism was or could be made of the period of time that elapsed before her transfer there in July 2012; nor could any criticism be made of the decision to set an initial period for assessment until late October 2012 or of the request of Dr Gupta made in November 2012 for a further period of assessment of 3-4 months.
87.	That period of assessment was therefore essential for a determination to be made.  A speedy determination therefore must take into account the factors that enable a determination to be made.  On the facts of this case the predominant factor was the need for an assessment at a hospital such as Plas Coch.
88.	Thus on the particular facts of this case, despite the deeply regrettable failures of NOMS and the Parole Board which we have enumerated, we agree with the conclusion of Irwin J that there was no breach of the obligation under Article 5(4) as a speedy determination could not in fact have been made more quickly than it was.
89.	For this reason therefore, although we grant permission, we dismiss the appeal against the order and judgment of Irwin J.
(1)	The criminal appeal
(a)	The application in the Criminal appeal and the evidence
90.	In her application to the Full Court in the criminal appeal, as renewed in May 2013, we were asked to quash the sentence of IPP and make an order under s.37/41 of the MHA on the basis of fresh psychiatric evidence from Professor Grubin, Professor of Forensic Psychiatry at Newcastle University and the holder of a number of other posts, and Dr Lyall, a consultant forensic psychiatrist at the John Howard Centre, East London.  We were not initially told of the judicial review proceedings; we only learnt of them after we had heard the evidence of Professor Grubin.  This was because different solicitors and counsel were instructed in the judicial review and the criminal appeal. 
91.	It was the evidence of Professor Grubin in his report of 27 September 2013 and in his oral evidence to us that, when sentenced in 2008, Vowles had a longstanding diagnosis of Borderline Personality Disorder; in this respect he agreed with Dr Heads.  She had also suffered a traumatic brain injury.  It was his view that the personality disorder met the criteria for a psychopathic disorder under s.37 (2) (a) (i) of the MHA as it then stood in 2008 as set out at paragraph 13 above but a hospital order could not have been made unless it was treatable.  Although Dr Heads had not actually said Vowles’ condition was not treatable, this could be implied from her report; that was an understandable conclusion given Vowles’ history.  Many psychiatrists would prefer to have such a person transferred under a s.47 order as there was a clear pathway to discharge that person from hospital by a return to prison after treatment.  In his view, Dr Heads had not given sufficient weight to the brain injury; the appropriate course would have been to make an interim order under s.38 with the likelihood that an order under s.37 would have followed, as it would have become apparent that that would have been the appropriate order. 
92.	 Dr Lyall’s evidence in his report dated 11 December 2013 agreed with the views of Professor Grubin.  He did not consider that Dr Heads had carried out a full and thorough analysis of Vowles’ treatment needs, especially of symptoms related to Ms Vowles’ acquired brain injury.  He considered that if Ms Vowles had been detained under s.38, it would, as shown by what actually happened, have become apparent to her treating clinicians, after a period of assessment in hospital, that a s.37 Order would have been the correct disposal in 2008.
93.	 Professor Grubin and Dr Lyall also believed that Ms Vowles’ eventual release into the community would best be achieved in hospital rather than in prison.  This is because only in hospital would Ms Vowles receive treatment for her mental illness, which was the cause of her offending behaviour.
94.	In his oral evidence to this court, Professor Grubin stated that he had not examined Ms Vowles’ risk of future fire-setting.  However, he believed Ms Vowles’ offence was not due to a fascination with fire but rather poor judgment.
95.	Professor Grubin disagreed with the Parole Board’s view that Ms Vowles should not be released until she had completed certain offenders’ courses.  This was because none of the courses addressed fire-setting.  The key issue that Ms Vowles needed to address was her coping mechanism.
96.	Dr Khan, her responsible clinician at Plas Coch, confirmed that a bed was available for her.
(b)	Our conclusion on the criminal appeal
97.	Despite the very impressive evidence of Professor Grubin we are unpersuaded by his evidence and all the other new psychiatric evidence that has been placed before us during our consideration of both the civil and criminal appeals, that the sentence imposed by the judge was wrong in principle.
98.	The evidence before us showed that taking into account the nature of her mental disorder, her culpability for the offence, the need for punishment and  the risk to the public, a sentence of IPP was appropriate, leaving her mental disorder to be treated in hospital under s.47.
99.	We therefore dismiss the appeal.
II	CARL BARNES
The offences and the sentence
100.	On 11 June 2007, Carl Barnes was sentenced by HH Judge Byrne at the Crown Court at Preston to IPP (with a minimum term of 28 months’ imprisonment) for offences of theft, robbery and obtaining property by deception under ss.1, 8 and 15 of the Theft Act 1968.  His application for leave to appeal many years later has been referred to the Full Court by the Single Judge
101.	On 3 May 2006, Barnes and his cousin visited the home of the victim, an elderly man.  Barnes threatened the victim with a knife and demanded money.  The victim handed over his wallet containing £55 cash and two credit cards.  Barnes held the cards under the running tap to remove any finger prints.  Barnes pulled off a gold chain the victim was wearing.  He cut the telephone line to prevent the victim telephoning the police.  He stole details of the victim’s pin number and the next day made two unsuccessful attempts to withdraw money using the stolen cards.  Barnes pawned the gold chain, worth £500, for £124 and used the money to buy heroin and beer.  Barnes carried out the offences whilst he was on bail for stealing a mobile phone from a schoolboy on 7 April 2006.
Psychiatric evidence at time of sentence
102.	Barnes was 31 at the time.  He had a long criminal record – 66 offences on 36 separate appearances before a court.  His first custodial sentence had been in 1990 at the age of 14 for robbery.  In 1999 he had been sentenced to 30 months for attempted robbery.  In 2001, he received a 21 month sentence for another offence of attempted robbery and 18 months imprisonment in 2005 for theft.  The judge rightly described it as appalling
103.	The judge had a pre-sentence report dated 18 September 2006 and a psychiatric report from Dr Ahmed, a locum consultant psychiatrist at Guild Lodge Preston, dated 12 December 2006.  The pre-sentence report made clear that Barnes admitted that he carried out the index offence because “he was desperate to ‘get money’ to fund his heroin use”.  His risk of reoffending and causing serious harm was high.  There were no constraints that operated to control his behaviour and he was unable himself to take control of it; he lacked “internal controls”.  Dr Ahmed in his psychiatric report recorded that Barnes had told him that on the day of the offence he “consumed 4-5 bags of heroin and described himself to be ‘sky high’ on drugs”.  Dr Ahmed concluded that Barnes “suffers from a mild depressive illness which…is not of a nature or a degree that warrants detention in hospital to receive medical treatment for his mental condition”.  In an addendum report dated 8 February 2007, Dr Ahmed considered that Barnes would benefit from psychological interventions to address his substance misuse, enhance his stress coping skills, to offer opportunities for employment or education and to treat any mental disorder.  All of this could be done within the prison and probation system.
104.	It was not open to the judge on this evidence to make any order under the MHA.  
Transfer to hospital
105.	Mr Barnes’ tariff expired on 7 September 2008.  On 23 February 2010, Mr Barnes was transferred to Calderstones Hospital under s.47 of the MHA 1981 and on 27 June 2011 to Gisburn Lodge, a medium secure unit.  He was diagnosed as having mild learning disabilities and a dissocial personality disorder.  In a report dated 27 November 2012, Dr S F Foster, a consultant psychiatrist and director of Gisburn Lodge, noted that Barnes had paranoid symptoms; he was treated with antipsychotic medication and his mental state considerably improved.  He was transferred in July 2013 to the West Drive, a low secure unit, under the care of Dr Razzaque, as the responsible clinician.  
The evidence placed before us
106.	We are invited to quash the sentence of IPP and substitute for it a hospital order with restrictions under s.37/41 of the MHA on the basis of fresh psychiatric evidence from Professor Grubin to the effect that at the time of sentence he was suffering from a disorder that would have made such an Order the correct sentence. 
107.	Professor Grubin provided a report to us dated 28 April 2013 and gave oral evidence to us on 16 July 2014.  His opinion as summarised in his report was that Barnes:
“suffered from both a learning disability and a dissocial personality disorder when sentenced in 2007; indeed both have been evident from a young age”.
 He considered that a hospital order would have been an appropriate result at the time of sentencing had a bed been offered.
108.	He noted in his report that Barnes had had little formal psychiatric history prior to the examination for the psychiatric report of Dr Ahmed.  Professor Grubin told us that Dr Ahmed had not recommended a hospital order under s.37/41, as he had failed to explore fully Mr Barnes’ learning disability.  Dr Ahmed had not commented on the presence of either the personality disorder or learning disability.  Instead, he had focused on the question of whether or not Mr Barnes suffered from a mental illness which required treatment in hospital, concluding that while there was evidence of mild depression this was not of a nature to warrant a hospital order.  His narrow focus, however, meant that the possibility of exploring whether a hospital order should have been made was overlooked.  In his view a more thorough assessment should have been made under an interim order prior to sentence; if that had happened, it was possible that his response to medication and treatment might have been positive and justified the making of an Order under s.37/41 of the MHA; an interim order was the first step, as no doctor would have been prepared to suggest a hospital order unless he had been treatable. 
109.	He accepted that at the time, Barnes was describing himself as a heroin addict and attributing his offence to that; he agreed that his substantive misuse had to be treated.  However, he considered it likely that his drug misuse was associated with his personality disorder.  It was difficult to disentangle out what might be the case if he did not have a mental disorder.
110.	Only clinical psychologists could, in his view, offer the mental health treatment which Mr Barnes required.  Clinical psychologists were only employed in hospitals and not in prisons, who relied on forensic psychologists. 
111.	Subsequent to the hearing and at our direction, Dr Razzaque, as the responsible clinician, prepared a report dated 24 July 2014.  His view of his present condition was the same as Professor Grubin and it was likely that he suffered from his learning disability and the dissocial personality disorder at the time he was sentenced.  A bed was available for him at Calderstones.
112.	In our view, the evidence of Dr Razzaque and Professor Grubin does not persuade us that the sentence imposed by the judge was wrong.  It is evident that Barnes had a serious criminal record; he was a heroin addict and this played a significant part in his offending.  It would not have been possible to  consider anything other than an interim hospital order and, on the evidence, it is uncertain what his response might have been.  Taking into account the fact that it cannot be said that the personality disorder and his learning disability as distinct from his drug addiction were the driving factors at the time, we are not persuaded that on the evidence before us a court could properly have made a hospital order.  
113.	Although we grant leave, we dismiss the appeal.
III	DANIELLE VICTORIA COLEMAN
The offences and the sentence 
114.	On 7 October 2005, the appellant Danielle Coleman was sentenced by HH Judge Fox QC at the Crown Court at Teesside to IPP (with a minimum term of 2 years) for attempted robbery and assault with intent to resist arrest contrary to s.38 of the Offences Against the Person Act 1861.  She appeals many years later by leave of the Single Judge.
115.	On 22 July 2005, Coleman attempted to steal £30 from a woman at an ATM machine.  A male member of the public intervened and the woman was able to retain her money and debit card.  When the police arrested Ms Coleman, she kicked and injured an officer.  She committed the offence while she was subject to a three year Community Rehabilitation Order.
116.	When questioned about the offence, Ms Coleman said that she had carried out the offence after drinking two bottles of wine and did not know what she was doing.
Her earlier offending and mental illness
117.	Coleman has an extensive criminal record and a history of mental illness.  She received 11 convictions for 20 offences, mostly criminal damage and offences against the person, between 1997 and 2005.  Coleman was admitted to the Roycroft Unit in Newcastle in 1999 and diagnosed with atypical psychosis.  She was admitted to St Luke’s Hospital in 2001 and 2002.  In 2002, the mental health team decided that Ms Coleman’s personality disorder was untreatable and she was discharged.  Coleman has continued to suffer paranoia, hallucinations and to hear voices. 
118.	In October 2004, Coleman was charged with intention to rob and received a Community Rehabilitation Order with a requirement to attend psychiatric treatment.  She failed to engage with mental health treatment.    
Psychiatric evidence at sentence
119.	The judge made no reference to Coleman’s mental health problems at the time of sentence.  That was because although it was acknowledged in the pre-sentence report, dated 13 September 2005, that Ms Coleman “has recognised mental health issues that are arguably inextricably linked to both this offence and many of her previous convictions”, “there was no credible alternative to custody”, because of her failure to engage with the mental health services. 
120.	In 2005, Dr Richard Pyatt and Dr Dawn Carson, consultant forensic psychiatrists at the Hutton Centre, St Luke’s Hospital, Middlesbrough, assessed Coleman whilst she was in remand at HMP Newhall for attempted robbery.  Each doctor in a separate report diagnosed Ms Coleman as suffering a personality disorder, but concluded that she did not require detention in hospital. 
121.	Dr Pyatt, in a report dated 17 January 2005 stated that Coleman:
“a)	at times [that she] does demonstrate symptoms of mental illness and can, at times, be particularly paranoid and will voice ideas with the nature of delusions.  I do not believe that Miss Coleman suffers from an illness such as schizophrenia, however.
b)		suffers from a disorder of personality…there is evidence of a disturbance from a very early age
c)		at the time of  my interview…she did not demonstrate symptoms of mental illness and her illness appeared to be in remission.”
122.	Dr Carson prepared two psychiatric reports dated 7 March 2005 and 6 October 2005.  In the March 2005, report Dr Carson stated that: 
“Miss Coleman has an emotionally unstable personality disorder …such disorders tend to be life-long and cannot be cured as such…this mental disorder is such that it requires, and is susceptible to treatment, but does not warrant her detention under a hospital order.”
123.	In the October 2005 report, Dr Carson said that she met Ms Coleman two days after the offence.  Dr Carson said that Ms Coleman’s “offending behaviour appears to be precipitated by excess alcohol consumption and other traits of her personality order” and that Ms Coleman’s mental health needs could be managed adequately in prison.
Fresh Evidence of Dr Kini and Dr Ejara
124.	When held in HMP Low Newton, Coleman was initially treated on the basis of the diagnosed personality disorder, but her symptoms gave rise to a consideration of the possibility of a co-morbid mood disorder with psychotic symptoms.  On 16 March 2009, she was transferred to the medium secure unit of Roseberry Park Hospital under s.47 of the MHA on the recommendation of  Dr R  Kini, a consultant forensic psychiatrist at the Roseberry Park Hospital, Middlesbrough, who had first seen her in June 2007.
125.	Since her transfer to hospital, Coleman has been diagnosed as suffering from schizophrenia at the time of sentence.  
126.	Dr Kini, who became her responsible clinician until October, was instructed by Coleman’s solicitors, Meikles, to report on her mental state.  In a report dated 19 September 2012 he set out her history from the time he had first seen her and concluded, having seen Coleman’s mental disorder evolve over five years, that her:
“psychotic presentation in 2004 and 2005 was consistent with prodromal and early manifestation of Schizophrenia in conjunction with her underlying personality disorders.”
His view was that she needed treatment in hospital and a transfer to prison would result in a significant risk that her mental health would deteriorate.
127.	Dr Abebe Ejara, a consultant forensic psychiatrist at Roseberry Park Hospital, who became her responsible clinician from October 2012 and had first seen her in December 2008, was instructed by Meikles to report in 2013.  He was later instructed by the Registrar of this Court to prepare a report.  In the  report dated 6 December 2013 prepared for this Court, he also concluded in agreement with Dr Kini that, with the benefit of hindsight, Coleman:
“was suffering from schizophrenia (as well as Emotionally Unstable Personality Disorder) at the time of her index offence and sentence in 2005; on balance her Mental Disorder at that time was of a nature and a degree that warranted disposal by way of Hospital Order”
He considered that her psychosis could have been missed because of her lack of engagement with the psychiatric services because of her drug and alcohol problems and the diagnosis of personality disorder.  It would have been difficult to diagnose schizophrenia without in-patient observation.
128.	Dr Ejara, in a further report dated 26 March 2014, stated that from early 2004, Coleman had: 
“a number of psychotic symptoms suggesting persecutory and paranoid delusions, hallucinations…she believed there was a conspiracy against her…she believed her friends and family were not real but part of the experiment…she believed cameras had been put in her eyes…she believed she was possessed by the devil.”
129.	In his oral evidence to this Court, Dr Ejara said that he was 80 to 90% sure that Ms Coleman’s schizophrenia was present at the time she committed the index offence.  Dr Ejara said that when Ms Coleman committed the index offence she believed that she was in a game or daze and was not connected to reality.  According to Dr Ejara, Ms Coleman’s personality disorder caused her to take drugs and alcohol.  
130.	Both doctors said that Ms Coleman’s schizophrenia fluctuated.  Dr Kini and Dr Ejara believed that Dr Pyatt and Dr Carson failed to diagnose Ms Coleman’s schizophrenia because they had not assessed Ms Coleman over a sufficiently long time-frame.  Dr Kini said in the September 2012 report that:
“the psychiatric team involved in her care at the time of her sentencing in October 2005 did not have the benefit of working with her over a sufficiently long period of time to make a conclusive diagnosis of Schizophrenia.”
131.	In his oral evidence, Dr Ejara said that it was unlikely that Ms Coleman’s schizophrenia was in recession at the time of the offence since her behaviour had been extremely volatile at that time.  Dr Ejara said that there was a possibility that Ms Coleman’s schizophrenia went into recession whilst she was in prison and receiving anti-psychotic drugs, and consequently was not diagnosed by Dr Pyatt and Dr Carson. 
132.	Both doctors said that Ms Coleman’s mental health needs required hospital treatment and could not be managed adequately in prison.  If she was returned to prison, she would relapse; she was unlikely to engage with the requirements imposed in prison for release as a prisoner subject to IPP.  She would continue to pose a risk of violence due to the chronic nature of her illness; she would be best managed in the community under conditional discharge under the MHA where she would receive psychiatric and social supervision and be liable to recall to hospital in the event of a relapse or concerns about the risk she posed.
Conclusion
133.	It is clear on the evidence that Coleman was suffering from schizophrenia as well as a personality disorder at the time of the offence in 2005 and that the offending behaviour was attributable to her schizophrenia.  On the evidence we are satisfied that it is entirely understandable why the schizophrenia was not diagnosed in 2005; this diagnosis only became clear some years later.  Taking into account the nature of her mental illness, its causal connection with the offence, its treatability and the clear evidence that her condition will be better managed on release under the MHA regime and the public better protected, we quash the sentence of IPP and substitute for it a hospital order under s.37 with a restriction under s.41 of the MHA. 
IV	JUSTIN OBUZA ODIOWEI 
The offence and the sentence
134.	The appellant Odiowei was 20 when he was sentenced by Henriques J in the Crown Court at Manchester Crown Square to custody for life with a specified term of four years in April 2001.  He had been convicted of wounding with intent after trial, but was acquitted of attempted murder. 
135.	He was transferred to Ashworth Hospital from prison in March 2002 with a restriction direction pursuant to s.47 and 49 of the MHA.  He has remained in a medical institution ever since but notionally could be transferred back to prison.
136.	In November 2013 the Full Court granted him an extension of time, leave to adduce fresh evidence, implicitly the reports of Dr Patricia Mary Abbott dated 5 December 2007, her letter dated 31 January 2011, and the report of Dr Melanie Higgins dated 9 August 2012, and consequently leave to appeal against sentence.
137.	The sole ground of appeal is that the sentence of imprisonment was wrong in principle, as there is expert opinion available now to show that Odiowei was suffering from paranoid schizophrenia at the time of the offence and continuing at the date of sentence, which amounted to a mental disorder of a nature and degree which made it more appropriate for him to be subject to a hospital and restriction order pursuant to ss.37 and 41 of the MHA.
138.	The facts of the offence may be stated in stark terms.  In April 2000, Odiowei after watching films and drinking alcohol for a number of hours with two friends, stabbed one of them as he lay asleep in his bed.  He stabbed him twice in the chest, three times in the back and once to the top of the left thigh with a steak knife.
139.	He was arrested and interviewed but made “no comment”.  He admitted his guilt after conviction but before sentence.  He was observed by the judge to have exhibited a “callous indifference” during the course of the trial and displayed “not the slightest contrition” in leaving his victim for dead amidst a vast amount of blood.
140.	He had been on licence at the time of the offence, having been released from a sentence of 9 months detention in a Young Offenders Institution imposed in 1999 for an offence of affray.  His other convictions included five offences of public disorder, possession of an offensive weapon in a public place in 1997 and some minor dishonesty.  
The report before the judge
141.	He claimed to Dr B A McInerney, a forensic consultant psychiatrist at the Humber Centre for Forensic Psychiatry in Wilbery who was commissioned by the prison service to prepare a report for the purpose of sentencing, that he had been cautioned for robbery using a knife when he was 15, which is not reflected in the records stored in the police national computer, and had on another occasion, when he was 16, used a knife to threaten someone who had “grassed” on his brother.  This may well relate to his convictions in 1997 for the possession of an offensive weapon in a public place and using threatening words with intent to cause fear or provocation of violence.  In addition he informed her that he had been suspended from school on numerous occasions for fighting with other pupils and teachers and had broken a fellow pupil’s nose.
142.	Dr McInerney interviewed Odiowei when remanded in custody on 23 February 2001.  She studied his inmate medical record which revealed complaints of him hearing a male voice telling him to kill people in January 2001.  Nevertheless Dr Mullins, who saw him at that time in the prison healthcare centre, concluded that he did not suffer from a mental illness but presented a risk to staff by “virtue of alleged voice and his tendency to lose control”.  His anti-psychotic medication prescribed in January had been withdrawn after four days.  Subsequently there were persistent threats to kill officers.
143.	Dr McInerney’s own examination of his mental state caused her to remark upon his “marked gaze avoidance” but uncovered no evidence of a mood disorder, mental illness “for example schizophrenia”, any thought disorder, delusions or hallucinations, the “voice he had previously claimed to hear had been absent for six months.”  He claimed to gain self esteem from his gang membership and to earn respect through fear.  His status within the gang was maintained by his willingness to engage in violent acts.  He showed no signs of guilt, remorse or empathy.  Reluctant to diagnose a personality disorder in one so young she nevertheless concluded that there were “worrying signs of psychopathic personality disorder”.  In her view Odiowei was “a dangerous young man who has many personality difficulties but is at present not ready to address his difficulties.  Consequently she recommended that if the court were to “impose a lengthy custodial sentence his mental state, including his personality, could be assessed again in a few years time but at present I feel this would be a fruitless exercise.”
144.	In the circumstances it was hardly surprising that the trial judge, Henriques J, determined Odiowei to constitute a serious danger to the public which called for a sentence of life imprisonment. 
His transfer to hospital
145.	He was further assessed on 13 November 2001 by Dr M F Croy, a consultant forensic psychiatrist at Ashworth Hospital.  She noted that reports of auditory hallucinations had recommenced following sentence and had been recorded in January 2001.  He was violent and aggressive.  On 18 October 2001 he attempted to suffocate his cell mate.  His poor eye contact was commented upon by medical and prison staff.  During mental state examination he was gaze avoidant and referred to auditory hallucinations and paranoid thoughts of others trying to poison him.  He alleged that previously he had shown significant violence to family members.  In her opinion there was “some suspicion of a mental illness” and 
“although it could be argued whether the level of suspected illness is of a degree which would make admission to hospital necessary, his account does suggest that some of his violence may be linked to symptoms and it would, therefore, be worth bringing him in for a period of assessment and also to see whether his level of risk to others could be reduced.  Given his level of violence, this could only be done safely in conditions of maximum security.”
He was transferred to Ashworth in March 2002.
The reports and evidence of Dr Abbott and Dr Higgins
146.	The Full Court gave leave to adduce the reports of Drs Abbott and Higgins.  Dr Abbott is a consultant rehabilitation psychiatrist at Ashworth.  Dr Higgins is also consultant forensic psychiatrist at Ashworth.  We have also admitted the letter dated 15 July 2014 from Dr Andrew Haddock, consultant forensic psychiatrist who is ‘covering’ for Odiowei’s “substantive consultant” presently on long term sick leave and which confirms Odiowei’s continued good progress in medium security conditions. 
147.	Dr McInerney has prepared a short response to the grounds in a letter dated 1 February 2014.  She states that her conclusions in 2001 were based on Odiowei’s presentation at the time of her interview and other information available at the time.  She notes that the reports from Drs Higgins and Abbott are based on detailed assessments carried out since the time she assessed Odiowei.  Dr Mullins cannot be traced.   
148.	In November 2013, the Full Court further directed that depending on the doctor’s responses only one doctor should attend this hearing, presumably to give oral evidence in accordance with s.41(2) of the MHA, if this court was minded to substitute a hospital and restriction order in place of the life sentence.  Clearly, this court’s powers are statutorily circumscribed as are those of the court at first instance.  (See R v Lomey [2004] EWCA Crim 3014.)  
149.	Realistically, given the circumstances in this case and the first hand assessment of a very experienced High Court trial judge as to Odiowei’s criminality and culpability, the mental health of Odiowei at the time of the index offence is of significance for the purpose of our assessment of the factors specified in s.37(2)(b) and consequently the merits of this appeal.  Accordingly we have permitted both Drs Abbott and Higgins to be called.  
150.	Each has acted as responsible clinician for Odiowei respectively and consecutively over a significant period of time whilst he has been housed in Ashworth Hospital and until his transfer to a medium secure unit six months ago.  Whilst good practice would dictate that a court should receive and hear evidence in support of hospital and restriction orders from a treating doctor (see R v Blackwood [2001] EWCA Crim 743), we are satisfied that Odiowei’s mental disorder is an enduring rather than fluctuating condition and their expert opinions are not undermined by the intervening period between Odiowei’s transfer from their immediate care and the listing of this appeal. 
151.	 In her report dated 5 December 2007 in connection with a possible appeal against sentence,  Dr Abbott concludes that in her opinion:
 “following extensive examination of this case Mr Odiowei suffers from schizophrenia … Symptoms of this illness have included paranoid (persecutory) delusions and auditory hallucinations as well as high arousal, all of which appear to have contributed to a wide range of violent acts, including the index offence…..there is strong evidence that Mr Odiowei was suffering from schizophrenia from the age of about 15 or 16 years and he may have entered a prodromal phase considerably earlier than this, around the age of 13 years.  It is my opinion that the evidence available is consistent with Mr Odiowei having been mentally ill on a continuous basis from his mid teens  up until  the time that his mental illness was effectively treated with antipsychotic medication after admission to Ashworth Hospital”. 
152.	In a letter dated 31 January 2011 she expressed surprise “at the certainty of the conclusion that there is no mental illness present” in the report of Dr McInerney.  However, in oral evidence she was sympathetic to her colleague’s plight.  Odiowei had obviously not been forthcoming as to his symptoms, he had made no comment in interview, there was no information from his family, no observations over a 24 hour period, and he was “chaotic” at the time.
153.	Dr Abbott retired from her post at Ashworth Hospital twelve months ago.  She had been employed there for over 18 years.  During that time she had been the responsible medical officer for Odiowei between 2002 and 2008 and then 2009 to 2011.  Initially she saw him on a daily basis, interviewed him weekly and participated in weekly multi disciplinary meetings.  Subsequently as his symptoms were controlled and he was nursed on lower dependency wards, she saw him less often on her ward rounds although still interviewed him on a regular basis and participated in monthly disciplinary meetings.  
154.	Her oral evidence confirmed her written reports and demonstrated a link between symptoms observed for at least a year in Ashworth which mirrored his presentation during interview with Dr McInerney, namely his gaze avoidance and guardedness.  This, she thought was a marked feature, only capable of explanation by Odiowei when he had been sufficiently and consistently administered high doses of antipsychotic medication, in terms that he had held a paranoid belief that if he looked at the person interviewing him he would have to assault them.  The same prolonged period of assessment enabled her to conclude that many of the features suggestive of a personality disorder disappeared after medication and he, once a “hard man” in the hospital setting, had become vulnerable to bullying by others.  If there had been a personality disorder element in his presentation this had been relatively small in comparison to the psychosis.  In her opinion he would need long term management in the community once released, best afforded by the conditions that would attach following discharge from a s.41 restriction order.
155.	Dr Higgins prepared a report dated 9 August 2012 in connection with a possible appeal against sentence, the previous application not having been proceeded with, apparently because Odiowei failed to return relevant documents to his solicitor.  She was certain that “the years that [Odiowei] has subsequently spent at Ashworth have served to categorically confirm the presence of paranoid schizophrenia which was present from at least …teenage years” and that “it is very clear that he does not suffer from a psychopathic personality disorder.” She considered that “(f)rom the body of evidence that has been collected at Ashworth, it is clear that [Odiowei], as is common with many patients , was not forthcoming with regards to his symptoms and it is not unexpected that at a single interview Dr McInerney was not able to elicit the depth and range of psychotic symptoms..” and that [Odiowei’s] presentation which led Dr McInerney to suggest he had a personality disorder are equally valuable evidence that at the time of this interview he was indeed suffering from mental illness symptoms and had been at the time of his index offence.” She noted a significant number of patients motivated to conceal their paranoid delusional beliefs, whether through fear of psychiatric units, ridicule, and administration of medication or else the auditory hallucinations themselves warning against disclosure.  Odiowei was “floridly psychotic on admission” but subsequently controlled by medication, which had been managed to achieve maximum result and regularly administered alongside psychological therapies which has led to a “considerable improvement in [his] mental state.  He no longer presented as disordered and violent and there is no evidence to suggest that he had a persisting personality disorder.
156.	Dr Higgins was responsible for Odiowei at the time of his discharge to the medium secure unit, Edenfield Centre.  She confirmed the contents of her report and adopted the opinions and conclusions in Dr Abbott’s oral evidence as to Odiowei’s mental state at the relevant times and his future management. 
Conclusion
157.	We were satisfied that the assessment process undertaken over an appreciable period of time in Ashworth Hospital was thorough and objective.  We were impressed by Dr Abbott’s in-depth and reasoned analysis of information derived from a number of sources in order for her to diagnose Odiowei’s mental condition at the time of the index offence, sentence, his admission to Ashworth Hospital and throughout the years that she had charge of his care.  Dr Higgins, too, was a distinctly impressive witness – analytical, objective and thoughtful.  She considered that life-long treatment would be necessary.  A s.41 order would best manage the risks presented by paranoid schizophrenia.  A named clinician in the community and adherence with medication would be priorities.  She considered the management of his condition in the prison setting likely to be poor and result in relapse and the re-emergence of symptoms.
158.	Both confirm their recommendation that he fulfils the criteria for a hospital order cited in s.37(2)(a) of the MHA and should be subject to a restriction order pursuant to s.41 of the Act.  Neither is, however, able to provide evidence in support of the additional criteria necessary for the making of a hospital order as provided by s.37(4).  This has subsequently been confirmed by Dr Haddock who has confirmed that a bed continues to be available to him. 
159.	We have also considered the papers before the Mental Health Review Tribunals and FTT (Mental Health), but it is the integrity and force of the fresh medical evidence from Dr Abbott and Dr Higgins which persuades us that the judge ought to have made an order under s.37/41.  The offending was attributable to his mental illness; it is treatable, but a life-long condition.  The public would be better protected through consideration of release by the FTT, his liability to recall and his treatment in the community under the care of the psychiatric services.
160.	We therefore quash the sentence of custody for life and substitute in its place a hospital and restriction order pursuant to s.37 and 41 of the MHA.
V	DAVID STUART IRVING
The sentence, appeal and reference
161.	This appellant David Stuart Irving was 25 when he was sentenced in May 1997 by His Honour Judge Burke QC sitting in the Crown Court at Minshull Street, Manchester to life imprisonment with a minimum term of eight years.  He had been convicted of seven offences of arson, one offence of criminal damage and one offence of threats to kill.  He was acquitted of a further count of arson and an offence of arson being reckless as to whether life was endangered.  
162.	His first appeal against sentence was heard in December 1997.  The sentence of life imprisonment was upheld by this court (Swinton Thomas LJ, Harrison J and Judge Dyer, the Recorder of Bristol).  The minimum term was reduced to six years.  
163.	He was transferred to Calderstones Hospital from prison in September 2002 with a restriction direction pursuant to ss.47 and 49 of the MHA.  He has remained in a medical institution ever since but notionally could be transferred back to prison.  As we set out below, there have been a number of hearings before the Mental Health Review Tribunal.  He was transferred in 2012 to Jigsaw Independent Hospital where he remains a patient under s.47/49.
164.	On 9 November 2011, RMNJ Solicitors applied to the Criminal Cases  Review Commission that the sentence should be referred to this Court on the grounds that the sentence of life imprisonment was wrong in principle and a hospital order should have been made.  They relied on the fresh evidence of Dr Simon Halstead and Dr Moodley.
165.	On 1 January 2014, the sentence passed on Irving was referred to us by the Criminal Cases Review Commission on the basis that “ongoing treatment and assessment of Irving has revealed the nature and degree of his mental impairment” and that “had the true extent of his impairment been recognised at the time he was sentenced” that “the appropriate sentence” would have been a hospital and restriction order pursuant to ss.37 and 41 of the MHA.
The offences in 1996 and the information before the sentencing judge in 1997
166.	The facts of the offences of which he was convicted may be stated shortly.  Over the course of two consecutive nights, 31 August 1996 and 1 September 1996, Irving set fire to six cars parked in private residential driveways.  In addition, in the early hours of the second day he threw a brick through the window of an occupied dwelling and subsequently phoned the occupants on several occasions making threats to the residents that he would “burn them alive” if they did not meet his demands.  It was subsequently noticed that a pair of curtains had suffered fire damage.  He was arrested during the course of that day.  He smelt of petrol, was carrying a can of lighter fuel and was found to have photographs of fire damaged property at his home address.  He denied the offences in interview, blaming another who had threatened him with being “burnt alive” if he identified him.  He had previous convictions for dishonesty and also for making nuisance telephone calls and “giving false alarm of fire”. 
167.	The sentencing judge had a raft of psychiatric reports available to him dated between October 1996 and May 1997 prepared by consultants, three of whom were forensic psychiatrists.  Dr Joanne Holloway, a consultant forensic psychiatrist at the Prestwich Hospital, considered he had learning disabilities in the borderline range and that his state of arrested or incomplete development of mind included significant impairment of intelligence and social functioning associated with abnormally aggressive or seriously irresponsible conduct.  Dr R P Ayra, a consultant psychiatrist in learning disabilities, considered him to be educationally subnormal with a mild degree of learning disability, problems with social functioning and a pathological maladaptive way of dealing with his problems.  Dr A C Wilson, a consultant forensic psychiatrist at the Prestwich Hospital, thought his range of intellectual impairments and the level of his functioning seemed to border on the formal learning disability range and that he otherwise agreed with Dr Holloway.  Dr O’Malley, a consultant psychiatrist at the Trafford General Hospital who saw Irving after conviction, rejected his self reported auditory hallucinations as genuine, found he had several features of an anti-social personality disorder and that whilst he “may have mild learning disabilities” he had been living independently and able to read to a limited degree so as to suggest that they were as a result of “social deprivation and poor education”.  Dr C Mulligan, a senior registrar in forensic psychiatry, relied on Dr Ayra’s opinion as to learning disability and reached the same conclusion as to the presence of a mental impairment as the other psychiatrists.  All psychiatrists interviewing Irving for the purpose of pre-sentence reports found him to be an unreliable historian given to fantasy, as had a community consultant psychiatrist in 1995 – who was also sceptical as to his self reported symptomology.  The two psychiatrists who interviewed him post conviction were each requested by Irving to “section him for two years”.  All five reporting experts concluded that he satisfied the criteria of mental impairment as defined by the MHA but that it was not of a nature or degree that required or would respond to inpatient psychiatric treatment.
168.	In the seventeen years that have elapsed since the sentence was passed, there have many more psychiatric reports, and other reports, case notes and discharge plans.  We have had regard to all that were placed before us.  We summarise the key reports which are necessary to an evaluation to the evidence before us.
Reports whilst Irving was in prison: 1997-2002
169.	Irving was interviewed in prison in 2001.  Dr P Bendall, a consultant in forensic psychiatry (Learning Disability) at Rampton, considered that he had a significant degree of learning disability, described as the “lower end of the mild range” and “significantly more than the borderline suggested in reports done for his trial”.  In her opinion there needed to be work done to address “self esteem, communication skills, social skills and problem solving” together with psychotherapy in a “learning disability service…He requires a health disposal”. 
170.	In 2002, Dr S D Geelan, a consultant forensic psychiatrist at Arnold Lodge, Leicester reported on Irving for the purpose of a Parole Board Review.  Dr Geelan reported him to be of “severely limited intellectual capacity….in the mild retardation range…In [her] opinion the only way forward for [Irving] is to be transferred to a hospital setting specifically able to address with his range of difficulties and needs.”
Reports after Irving’s transfer to Calderstones Hospital: 2002-2012
171.	After Irving’s transfer to Calderstones in September 2002, under s.47/49 of the MHA, further psychiatric, psychologist and social work reports were prepared in late 2002 for the purpose of treatment plan or Mental Health Review Tribunal.  A further assessment of intellectual functioning took place in October 2002.  The results suggested “a mild learning disability” with a style which enabled Irving “to present as being more able than his IQ assessment presents.” (His IQ was retested in 2005 with similar results).  A “mild” mental retardation is used in comparison to moderate, severe and profound retardation and is a significant disability.  A written statement was provided to the Mental Health Review Tribunal by Dr Anil Kumar, consultant psychiatrist in learning disability at Calderstones; he also gave evidence.
172.	The Mental Health Review Tribunal convened in Irving’s case in March 2003 decided  that: 
“having heard evidence (including from Irving) …the Tribunal is satisfied that [Irving] suffers from a mild learning disability”, but were “not satisfied that it is of such a nature and degree which makes it appropriate for him to be detained in hospital for treatment…..Until such time as he is returned to prison or released into the community, his detention in hospital…is in our view unjustified.”
That decision was quashed by consent in judicial review proceedings in May 2003 on grounds that it had failed to state why it rejected the evidence of Dr Kumar. 
173.	In a further report to the Mental Health Review Tribunal prepared in August 2003, Dr Anil Kumar, made clear that he had been involved in the treatment of Irving during his time in Calderstones.  He reported the opinion of Mr Lord, Principal Forensic Psychologist, undertaking an assessment of clinical and personality profile, noted “a strong tendency to exaggerate clinical problems ... and extremely high disclosure … suggesting that the outcomes of the test must be interpreted with extreme caution”.  Having  reviewed the  progress of Irving in Calderstones,  Dr Kumar’s opinion was that he agreed with the classification of  mental disorder previously identified but that it appeared to him  that “no effective treatment can be given…at Calderstones Hospital”, and therefore Irving was “inappropriately detained in hospital under the provisions of ss.47 and 49” of the MHA.
174.	In early 2006, RMNJ Mental Health Solicitors instructed Dr Bernard Nwulu, a consultant psychiatrist at Rampton Hospital, apparently with a view to an appeal.  He reported in March 2006.  He too questioned Irving’s fitness to plead in 1997 by virtue of his low intellectual capacity and ultimately gave his opinion that if the account of a third party given to a consultant psychologist in 2005 had been available in 1997 to the consultant psychiatrists who reviewed Irving’s case, he would have been made subject to a hospital order with restriction rather than imprisonment.  He considered Irving to have a mental impairment which warranted detention in hospital rather than in prison.
 “The degree of this disorder fluctuates but on balance I think that his interest would best be served in hospital under a hospital care order with restriction.  Treatment in hospital has so far prevented his deterioration. … His mental impairment equates to emotionally unstable personality disorder, impulsive and borderline type.” 
175.	In the annual statutory report for the Home Office, dated October 2006, Dr Adewunmi, consultant psychiatrist, advised that Irving should continue to be detained in hospital in order to undertake further psychological work, to establish the role of mental retardation and other relevant investigations into his offending.  This work could not be carried out in prison.
176.	Ms Jeanette McDonagh, consultant clinical psychologist, detailed the intensive psychological intervention “directed at understanding his psychopathology more”, provided to Irving in Calderstones.  In her opinion, reported in September 2007, Irving’s history indicates “a propensity for highly dangerous behaviour…associated with his long standing mental impairment and personality difficulties”.  She recommended “eventual rehabilitation through the hospital”.
177.	A report for the Mental Health Review Tribunal in February 2009 prepared by Dr Salanki, Associate Specialist on behalf of Dr Razzaque, Medial Director and consultant psychiatrist, urged that Irving remained detained in hospital.  The report details incidents of ongoing aggression.
178.	In June 2009 the Mental Health Review Tribunal (chaired by Mr Richard Marks QC) heard evidence from Dr Razzaque, Jeanette McDonagh, Irving and others, and accepted the unchallenged evidence of Dr Razzaque of “mental disorder involving mild mental retardation with significant behavioural impairment”, but in its reasons expressed the need to be “somewhat guarded as to the extent to which such progress as he has made, may be continued in the future.” A transfer back to prison would not be appropriate.
The transfer to Jigsaw Independent Hospital
179.	Irving was transferred to Jigsaw Independent Hospital on 31 January 2012.  In a report prepared for the FTT (Mental Health) dated 30 May 2012, his responsible clinician Dr Chowdhury, consultant psychiatrist, gave his opinion that “both the nature and degree of his mental disorder were relevant to his detention.  The nature of his mental disorder is … lifelong, chronic and continuous … and likely to deteriorate without ongoing treatment”.  The FTT  (chaired by His Honour William Morris) decided on 14 October 2012, after hearing evidence from Dr Chowdhury and Dr Moodley (to whom we refer at paragraph 183 below) and others, were satisfied that Irving suffered from mild learning disability, exacerbated by significant deficits in his memory, a recurrent depressive disorder and elements of a complex personality disorder.  They decided that he should continue to remain in hospital and be treated. 
180.	Dr Chowdhury provided a further report for the Criminal Cases Review Commission dated August 2013.  He commented on his perceived borderline and paranoid personality trait and amplified his views as to the learning disability as one that “could if anything have been worse previously”.   He was critical of the opinions of the psychiatrists who advised the sentencing judge in 1997 to the effect that they were not of the opinion that Irving’s mental disorder was of a nature or degree that would benefit from inpatient treatment particularly bearing in mind that “medical treatment under the MHA is a very wide ranging definition and includes treatment “likely to alleviate or prevent deterioration”.  As at 22 August 2013, he indicated a willingness to continue to act as his responsible clinician and that a bed within the Jigsaw Independent Hospital would be available to him. 
181.	A further report was commissioned by the Criminal Cases Review Commission.  Dr Obinwa, Specialist Registrar in Forensic Psychiatry at Reaside Clinic interviewed Irving in September 2013 in Jigsaw Hospital and reported “it was obvious to me that he was an individual with learning disabilities”.  He concluded that Irving had a mild learning disability which was a lifelong condition, “fairly static”.  “The degree of [Irving’s condition] although less relevant than nature, has ameliorated with time/maturation and treatment ...” He considered that “with the benefit of hindsight” Dr Arya may have over-estimated Irving’s intellectual abilities and therefore considered him more in need of social support than specialist intervention.  Dr Obinwa noted the treatment received to have been “fairly comprehensive” and overall that Irving “has received great benefits from treatment”.  He concluded that the authors of the pre-sentence reports should have considered an assessment in hospital to investigate whether Irving was likely to respond to treatment.  He was of the view that Irving presently satisfied the criterion for imposition of a hospital order with restriction pursuant to ss.37/41 of the MHA. 
The reports of Dr Moodley and the reports and evidence of Dr Halstead
182.	It is against that background that we turn to consider the reports of Dr Devan Moodley and the reports and evidence of Dr Halstead, both of whom were instructed by RMNJ Solicitors for Irving.
183.	Dr Devan Moodley is described in the reports as Clinical Lead for Personality Disorder Services of Alpha Hospitals, Bury and subsequently as Medical Director of Hanover Health Care.  The first opinion was a psychiatric opinion in March 2009 “to assist in a forthcoming Mental Health Review Tribunal and in consideration of…grounds to appeal against sentence”.  Having reviewed the case documents and following interview he stated :
 “As there is now much more known about the case than when he was originally convicted, the appropriate treatment test is certainly met………it is my opinion that [Irving] should remain within the hospital setting and not return to prison.” 
In a balanced appraisal of previous opinion, he noted that a number of reports have “documented the ‘static’ nature of his disorder” in terms of his underlying intellectual functioning.  In his opinion “in the light of information now available…the severity of his underlying disorder was not precisely determined at the time of sentencing  and as such the prognostic aspect of the nature of his disorder was misperceived….as one that could be appropriately managed …other than [in] a specialist healthcare facility.” He fairly conceded “My view however is provided in retrospect and with the advantage of several other views and robust inpatient psychological assessment.” Further, he noted that the “treatability" aspect of the MHA was still in place and Dr Holloway 
“would have to have been satisfied that [Irving] met the criteria for the treatability test in addition to nature and degree before recommending hospital disposal.  The treatability test has now been replaced with the appropriate medical treatment amendment and it would therefore be a different interpretation if the case was now before the Courts.” 
184.	Dr Moodley prepared an addendum report in December 2010, expressing his view that the “treatability test” would have been satisfied in 1997, since the House of Lords had determined that treatability covered anything from “cure to containment” and it was therefore sufficient if the manifestations of a disorder are contained and risk is managed, regardless of curative outcome.  He considered that since sentence “there has been a consensus regarding both the nature and degree of [Irving’s] disorder and that he warranted treatment in hospital….he should have satisfied the legal criteria for detention.” 
185.	We interpolate that it is clear from the summary of the reports above that Dr Moodley is entirely inaccurate regarding  a  ‘consensus’ in this case.
The reports and evidence of Dr Halstead
186.	In February 2003 Dr Simon Halstead, Medical Director and Honorary Senior Lecturer, approved under s.12(2) of the MHA produced an “independent” psychiatric report at the request of RMNJ  solicitors.
“in order to assist at [Irving’s] forthcoming Mental Health Tribunal” but also indicating that he had “been asked to address…whether or not the client’s mental disorder was correctly documented and reported at the time of the trial leading possibly to grounds of appeal regarding the appropriateness of the sentence.” 
On examination he diagnosed “mild mental retardation” but that Irving appeared to function “at a higher level than he in fact does”.  He said that the 
“defect of comprehension, reasoning and general intelligence is stable over time and does not wax and wane like a mental illness.  There is every reason to suppose that it would have been present at the time of the index offence and at the time of examination of Dr Holloway and Dr Arya.  I do not know why a hospital admission was not arranged as part of the pre-sentence report process.” 
187.	He went on to agree the presence of a mental impairment, considered that it was “of a nature at least which makes it appropriate for the patient to be detained in hospital”, did not “see how he would have been fit to stand trial” and that “if properly assessed at the time of conviction, could have been made subject to a hospital order…with restriction”.
188.	In a supplemental report dated September 2003, Dr Halstead noted “the disagreement within the clinical team” as to whether the mental disorder is of a nature or degree which makes it appropriate for hospital detention or is “treatable”.  He expressed his opinion to be that the disorder was of necessary nature but not degree, suggesting that the hospital was preventing deterioration if not some degree of alleviation.  He did not consider it to be in the public or Irving’s interest for Irving to be returned to prison.
189.	Dr Halstead prepared a supplemental report in May 2009.  He indicated his intent to “focus on the medical information, and defects therein, available to the Court at the time of sentence.”  In doing so apparently he considered it necessary to transcribe at some length his interview with Irving.  We have not found this long section of his report informative in any degree.  We note that whilst his criticism of  Dr Arya’s testing of Irving’s IQ or the results may have some substance,  he misquotes Dr Arya’s in ascribing to him the opinion that Irving was not mentally disordered.  In fact, Dr Arya found no evidence of “any active treatable mental illness”.  Further, Dr Halstead wrongly states that Drs Holloway and Mulligan “excluded [Irving] from classification within the meaning of s.1 of the MHA as it was at the time” – they did not.  Drs Holloway and Mulligan were concerned with nature, degree and treatability of the mental disorder.  This report is unhelpful and misinformed.He prepared a further report in June 2010.
190.	Given the large number of psychiatric reports, and more particularly those prepared in 2013, we were surprised to be invited to hear evidence from Dr Halstead, who had last seen Irving in 2008.  No thought appeared to have been given to the necessity of this court to be satisfied of the requirements of ss.37 (4) and 41(2) of the MHA in relation to the making of a hospital and detention order, if we were able to be persuaded to substitute the same in place of the sentence of life imprisonment.  The fact that Dr Halstead ‘agreed’ with the subsequent diagnoses of Drs Chowdhury and Obinwa lacked forensic worth.  He was not in any position of authority in relation to present day treatment, prognosis or management of Irving.  We regarded his suggestion that he would be able to speak on behalf of the hospital managers or present day responsible clinician on the basis of a telephone conversation to be totally unacceptable.  Consequently we adjourned the hearing. 
The evidence of Dr Montazeri
191.	At the resumed hearing of this appeal on 8 September 2014 we heard from his current responsible clinician, Dr Montazeri.  She had prepared a report dated August 2014.  We were impressed by her straightforward manner in both her written and oral evidence.  She confirmed the current situation informed by IQ tests administered by psychologists to reveal a “mild” learning disability and also attendant personality disorder with prominent paranoid, schizotypal and depressive features and symptoms on antisocial, borderline and avoidant scales.  She was clear that she did not attempt to address the circumstances at the time of his offending or sentence. 
192.	Significantly, now as then, she felt the link between the offences of arson and Irving’s learning disabilities were difficult to analyse.  However, at this time she considered that Irving fulfils the criteria for the imposition of a hospital order under s.37. 
“His mental disorder is associated with seriously irresponsible conduct and remains of a nature and degree that requires inpatient treatment in a hospital setting and which continues to be associated with risks to others, as well as to his own health and safety.  I believe the risk to others would justify special restrictions under section 41.” 
193.	She has confirmed that she will continue as responsible clinician and that a bed is available for Irving at the Jigsaw Independent Hospital.
Our conclusion
194.	We have found this a troubling case.  We have no doubt that the sentencing judge cannot be categorised as wrong in principle in imposing a life sentence on the basis of the facts of the case and the contents of the psychiatric reports then before him.  The Court of Appeal so decided in December 1997.  We are however mindful that the views of the reporting consultant psychiatrists were dependent upon what is now adjudged to be a faulty assessment of the degree of Irving’s learning disability.  On the basis of the evidence before us we are satisfied that his learning disability was underestimated.  Nevertheless we are conscious that a range of opinions has been expressed in the interim period as to the dubious necessity of in-patient treatment in the knowledge of updated IQ tests and the resultant identification of mild retardation rather than borderline learning disability.  That said, we note that  the majority of the latest expert opinions come down firmly in support of the view that the first instructed psychiatrists made a mistaken assessment of “treatability” at least in terms of preventing Irving’s further deterioration and should have recommended hospital and detention orders.  
195.	We have no doubt that Irving is rightly placed now within the hospital system rather than in a prison environment.  This does not establish that the sentencing judge was wrong to impose the sentence he did. 
196.	The fact of mental illness enables the sentencing court to consider an alternative to immediate imprisonment, but is not a passport to a medical disposal as many of the psychiatric opinions we have considered in this case appear to presume.  The sentencing judge must have regard to “all the circumstances, including nature of offence, character and antecedents and the other available means of dealing with [a defendant]” (MHA s.37(2)) and thereafter only make a hospital order if it is the “most suitable method of disposal”.  
197.	Acknowledging that there is no necessity for the sentencing judge to be satisfied of a causal link between a defendant’s mental disorder and the offences in order to make a hospital order under s.37 or to direct hospital admission under s.45A it remains a legitimate factor to weigh in the balance of the circumstances as a whole. 
198.	We are not satisfied in this case that the ‘fresh’ expert evidence  has established any sufficient causal link which would tend to support the argument that the first instance judge was wrong in principle to impose a prison sentence rather than a hospital order.  In the light of the differing views of the nature and degree of Irving’s disorder throughout the years we find it doubtful that an interim hospital order would have resolved the issue for the judge. 
199.	We dismiss his appeal.
VI	GORDON MCDOUGALL
The offence and the sentence
200.	On 20 December 2007, the appellant Gordon McDougall, who was then 28 years of age, pleaded guilty to wounding his mother, Isobel McDougall, on 8 August 2007 with intent to cause her grievous bodily harm.  He was sentenced by HH Judge Forrester to an indeterminate sentence of IPP with a minimum term of 2 years and 50 days.  He appeals against sentence by leave of the single judge.
201.	The prosecution opening and the judge’s sentencing remarks no longer exist.  The tapes have been destroyed.  There is no agreed note from counsel.  The judge’s notes do not assist as to the reasoning.  However, all the source material that was before the judge has been retained.
202.	McDougall had had a troubled relationship with his mother over a number of years and had threatened to be violent to her on numerous occasions in the past, although he had never previously carried out any such threat.  He had no previous convictions for violence.  His convictions were limited to an offence in 1998 when he was conditionally discharged for sending a threatening letter to a friend and an offence in 2002 when he was made subject to a Community Order for harassing his mother. 
203.	On 8 August 2007, McDougall visited his mother’s home, informed her that he wanted to commit suicide and requested her to allow him to drive the family car off a cliff.  Upon her refusal, he became more and more agitated and attacked her with a knife delivering blows to her face, scalp and neck causing superficial injuries to her eye, nose, right cheek, neck, back of her scalp and right hand. 
The reports before the judge
204.	The judge had before her a pre-sentence report and psychiatric reports from Dr Green, a consultant forensic psychiatrist at The Hutton Centre, St Luke’s Hospital, Middlesbrough, and Dr Turner a consultant forensic psychiatrist at Bamburgh Clinic, St Nicholas Hospital, Gosforth, Newcastle. 
205.	In his report dated 10 October 2007, Dr Green referred to a hostile, dependent and jealous relationship that McDougall had with his mother.  In his opinion, McDougall was not suffering from a major mental illness but had profound and severe personality problems with pronounced paranoid, dependent and schizoid personality traits.  However, Dr Green added that he was unable completely to rule out the possibility that he might be in the early stages of the development of a mental illness such as schizophrenia.  He suggested that if a hospital disposal were to be considered, McDougall would have to be classified as suffering from a psychopathic disorder.  He recommended further assessment prior to sentence as to McDougall’s mental condition and the issue of treatability.
206.	In the pre-sentence report dated 7 December 2007, the OASys assessment was that McDougall was at medium risk of re-offending, a medium risk of harm to the general public and a high risk of harm to his mother.  The author of the report, Mr Stuart, noted that Dr Green did not dismiss the fact that McDougall might be in the early stages of an illness such as schizophrenia.  He supported Dr Green’s recommendation that there be a further assessment of McDougall’s mental condition.
207.	Dr Turner reported on 10 December 2007.  He had access to the prosecution papers and McDougall’s general practitioner records, but was not provided with copies of Dr Green’s report or the pre-sentence report.  In his opinion, McDougall was possibly suffering from a personality disorder with cluster A and C features.  He observed that, prior to the offence, McDougall had developed frank paranoid delusions that may have been related to a depressive illness, but he considered the offence was primarily a result of personality difficulties.  Dr Turner did not consider McDougall posed a significant risk to the general public but there was an ongoing risk to his mother.  He suggested that McDougall required pharmacotherapeutic treatment and psychological interventions that would most appropriately be delivered following transfer from prison after sentence under s.47 of the MHA.  He recommended a referral after sentence to the Oswin Unit at the Bamburgh Clinic, St. Nicholas Hospital in Newcastle, which is a specialist medium secure unit for treating patients with personality disorders.  He provided no explanation as to why referral under s.47 of the MHA was preferable to a hospital order under s.37 of the Act.
McDougall’s transfer to the Oswin Centre and the fresh evidence
208.	Almost immediately after sentence, McDougall was referred to the Oswin Unit at the Bamburgh Clinic.  He was eventually transferred there under s.47 in July 2008.  He has remained there receiving treatment since that time. 
209.	For the purposes of the appeal, we have been assisted by comprehensive psychiatric reports prepared by Dr Stephen Barlow, a consultant forensic psychiatrist at the Rampton Hospital dated 9 August 2012 and Dr James Stoddart, a consultant forensic psychiatrist at the Bamburgh Clinic dated 16 November 2012.  Additionally, we have received oral evidence from Dr Stoddard who has regularly liaised with the approved clinician who has overall responsibility for McDougall’s treatment.  He is authorised to confirm that a bed remains available to McDougall at the Oswin Unit at the Bamburgh Clinic. 
210.	The medical records from the Oswin Unit indicate that McDougall was initially diagnosed as suffering from a major depressive disorder with psychotic features and a personality disorder with avoidant and dependent traits.  However, following an exploration of his history, which included obtaining corroborative information from his mother, the diagnosis was revised; the current view being that he has suffered from schizophrenia or a schizoaffective disorder.  The records further confirm that his illness has responded well to treatment with antidepressant and antipsychotic medication with McDougall being fully co-operative with the treatment plan which has included supervised access in the community for a range of occupational, social and leisure activities, ongoing psychological treatment and support and medication.
211.	Dr Barlow’s conclusion is that McDougall has suffered a major psychotic illness that appears to have developed gradually during his late teens and early twenties, against a background of genuine problems with delayed pubertal development, culminating in a florid psychotic episode in the months leading up to the offence.  There is strong evidence that McDougall was suffering from an acute schizophrenic episode at the time of the offence and, notwithstanding a long history of aggressive and threatening behaviour to his mother, this would have been a significant causal factor in the offence.  He has responded well to treatment.  Dr Barlow is of the opinion that, if there had been an assessment prior to sentence, as recommended by Dr Green and Mr Stuart, McDougall would have been classified as suffering from a mental illness that was significantly causative of the offence and which was susceptible to treatment and the most appropriate disposal would have been a disposal under ss.37 and 41 of the MHA.
212.	Dr Stoddart’s conclusion is that, at the time of sentence, although the precise diagnosis was uncertain, both Dr Green and Dr Turner acknowledged that McDougall had a mental disorder within the meaning of the MHA that either definitely or most probably needed treating in hospital.  Dr Green, as supported by Mr Stuart, suggested further assessment before sentence.  Dr Turner did not explain why the use of the MHA after sentence was appropriate.  The clarification of McDougall’s diagnosis following his transfer to the Oswin Unit soon after sentence establishes that he had had psychotic symptoms for some time before the offence that were substantially linked to the events of that day.  He either had a depressive illness with psychotic features or a schizoaffective disorder, which is a disorder that shares equal features of schizophrenia and an affective mood disorder, which in McDougall’s case was depression.  Although there is also evidence of a personality disorder that is being treated within the Unit, the extremely significant cause and strong mitigating factor of the offending was the depressive illness with psychotic features or the schizoaffective disorder.  It is a chronic condition.  It is treatable.  It is being treated with antipsychotic medication that has been prescribed more or less continually since the date of the offence.  McDougall is co-operative and has responded well to treatment.  Under treatment, the risk to the public and particularly his mother is controlled.  Dr Stoddart’s conclusion, therefore, is that, at the time of the offence, McDougall did have a mental disorder within the meaning of the MHA that required treatment in hospital and that it would have been appropriate for orders under s.37 and 41 of the MHA to have been made.  Such orders remain available now.
Our conclusion
213.	At the time of sentence, the judge had limited medical information before her upon which to base a decision as to whether a hospital order with or without restrictions should have been made in preference to an indeterminate sentence.  For the reasons articulated by Dr Green and Mr Stuart, an assessment prior to sentence was justified.  If that had been done, the judge would have been assisted by a clearer diagnosis and would have had a better understanding of the significant causal connection between McDougall’s mental condition and the offence.  The fresh evidence of Dr Barlow and Dr Stoddart places McDougall’s offending into much clearer context.  We agree with their conclusions. 
214.	Despite the very considerable passage of time since sentence, some seven years, the factors that we have set out in the preceding paragraph make clear that there was a very strong causal connection between his mental illness and the offence, that the illness is treatable and the public is likely to be better protected if his release, the conditions of his release and his psychiatric care in the community  is governed by the provisions of the MHA.
215.	We therefore quash the indeterminate sentence of IPP.  We substitute in its place a hospital order with restrictions under ss.37 /41 of the MHA.