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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> S, R v [2001] EWCA Crim 743 (12 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/743.html Cite as: [2001] EWCA Crim 743

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Monday, 12th March 2001

Monday, 12th March 2001

JUDGMENT
1. LORD JUSTICE KEENE:On 1st September 1999, after a two-day trial in the Central Criminal Court before Blofeld J, this applicant was convicted of rape. He was subsequently sentenced on 22nd October 1999 to seven years' imprisonment. He appeals now against sentence by leave of the full court.
2. The appellant (who is aged 24) raped a 17-year-old girl whom he had met at their place of work. Although she had willingly gone out with him on the evening in question and had gone to his flat, he there struck her around the face and in the mouth when she resisted his advances. He also put a blanket over her head for a short period of time before penetrating her, which he did more than once.
3. The appeal is brought not on the basis that the seven year term of imprisonment was in any way manifestly excessive in the circumstances, but because of the evidence about the mental condition of the appellant. At the time of trial, the medical evidence indicated that the appellant was fit to stand trial although there was evidence that he had been suffering from paranoid schizophrenia. At various stages in recent years he had been admitted to hospitals because of psychiatric problems including suspected schizophrenia and he had been prescribed medication for that condition. Indeed, he had been to see a psychiatrist just two days before the offence complaining of hallucinatory experiences.
4. After his arrest for the offence of rape he was seen by a number of psychiatrists. A report dated 14th June 1999 by Dr Needham-Bennett concluded that the appellant suffered from a mental illness of a paranoid schizophrenic nature but stated that there was no evidence that his illness was of a nature or degree that would have impaired his ability to appreciate events for what they were. Dr Needham-Bennett also noted that the appellant's mental state had improved while on medication. He anticipated that if the appellant was convicted a further period of assessment would be sought by the court.
5. After conviction, the trial judge acceded to a defence request for a further period of psychiatric assessment. When the matter came before him again on 22nd October 1999, there was a further letter dated 8th October 1999 from Dr Needham-Bennett available, stating that he was still of the opinion that this man suffered from a mental illness of a paranoid schizophrenic nature, but adding this:

"I feel at present unable to recommend a definitive psychiatric disposal under section 37 of the Mental Health Act 1983. I feel that further assessment is required as an inpatient to assess his personality further and to come to a better understanding of whether his mental illness was involved in the commission of the offence. If we were to recommend a section 37 at this stage I have little doubt that the court would be considering imposing restriction orders under section 41 of the Act and this obviously has implications in terms of supervision following eventual discharge. In summary, I feel that he needs a further period of assessment now that he has been convicted of rape. To this end I provide the court with two medical recommendations for an interim hospital order under section 38 of the Mental Health Act."

6. Dr Needham-Bennett did not attend in person.
7. The learned judge refused the application for an interim hospital order on the basis that the evidence did not indicate that the rape was caused by the appellant's mental illness, but was, as he put it, "deliberate criminal conduct". He therefore saw prison as being inevitable.
8. There was consequently no such interim order or adjournment and a seven year prison sentence was passed. The judge directed that a medical report should be sent to the prison so that if the appellant required any treatment it could be arranged by the prison authorities.
9. We are bound to say that we consider that the learned judge placed undue emphasis on the absence of any causal link between mental illness and the offence. On the authorities, the better view seems to be that such a link is not a precondition to the making of a hospital order under section 37 of the Mental Health Act 1983: see R v McBride [1972] CLR 322 and R v Hatt [1962] CLR 647. Indeed, such is the wording of that section that it seems that a hospital order may be made even though the mental disorder suffered by the defendant has developed since the date of the offence.
10. One can well understand that the trial judge felt some concern about the absence of any firm proposal from the psychiatrists for disposal, and about the somewhat brief letter which was all that had emerged in the course of over seven weeks since the conviction, but it was somewhat unfortunate that the application for an interim hospital order was refused.
11. In the event, this court now has available to it fresh evidence in the form of a number of reports from psychiatrists for the production of which we have given leave. Dr Harvey Gordon, a consultant forensic psychiatrist at Broadmoor Hospital, concludes that the appellant is suffering from a chronic schizophrenic illness with delusional ideas and auditory hallucinations, including those of a command nature. He records a number of episodes of violence and sexual assault in the appellant's history and recommends a hospital order together with a restriction order under section 41 of the Mental Health Act.
12. Dr Brooke, consultant and senior lecturer in forensic psychiatry, has been the appellant's consultant psychiatrist for some time until about three weeks ago. We have had the benefit this morning of hearing her give oral evidence before us, as well as of reading her two reports of 10th May and 16th October 2000. Dr Brooke has referred to the appellant hearing voices as well as to other psychotic experiences. She too concludes that the appellant is suffering from paranoid schizophrenia, which is a mental illness within the meaning of section 37(2) of the Act. Like Dr Gordon she tells us that his illness can be ameliorated by detention in hospital and by medication while there. Already medication has improved his mental state, according to Dr Brooke, although not cured him.
13. In our judgment, this indicates that it is appropriate because of the nature of his illness that he should be detained in hospital for treatment. That, as we understand it, is the opinion of the medical practitioners to whom we have referred. That meets one of the other requirements of section 37(2). Because of risk to the public, Dr Brooke recommends not only a hospital order but also a section 41 restriction order.
14. At the court's request, the prosecution have attended today. On their behalf, Ms Cobbs does not oppose the hospital order with appropriate restrictions. Indeed the Crown regards such orders as being appropriate in this case because of the fresh evidence which is now available to this court.
15. Undoubtedly, this court has the power to substitute orders under the Mental Health Act for a prison sentence. That follows from the wording of section 11(3) of the Criminal Appeal Act 1968. We have, however, to be satisfied that a section 37 order is the most suitable method of disposal having regard to all the circumstances, including the nature of the offence, the character and antecedents of the offender and the other available methods of dealing with him. We are so satisfied.
16. In addition, we have to be satisfied that arrangements have been made for his admission to the specified hospital within 28 days. The position is that the appellant is currently at the Bracton Centre, which was until recently part of Bexley Hospital. He is there at the moment under section 48 of the Act, the Secretary of State having exercised his powers to transfer him there as a serving prisoner.
17. Having heard Dr Brooke, we are satisfied that appropriate arrangements have been made as required by section 37(4). A medium secure unit (such as the Bracton Centre) is something which we are satisfied is an appropriate place for the appellant in current circumstances.
18. Although this appellant did not have previous convictions for violence before this conviction for rape, he does have a history of some violence and that, combined with this offence itself and the evidence from the psychiatrists, satisfies us that it is necessary for the protection of the public from serious harm that a restriction order under section 41 of the Act should be made as well as a hospital order. The restriction order will be without limit of time.
19. We therefore quash the sentence of seven years' imprisonment. In its place we substitute a section 37 hospital order specifying mental illness, namely paranoid schizophrenia, as the mental disorder and specifying the Bracton Centre as the hospital. A section 41 restriction order without limit of time is also made.

MR TAYLOR:My Lord, I am grateful. Can I just hand up, if it is necessary, the latest pro forma for the section 37 and 41.

My Lord, there is one other matter. On the last occasion those instructing myself had initially been acting on a pro bono basis. Limited legal aid was initially granted for conference. Then, on the last occasion, legal aid was granted from the date of that hearing and Henry LJ said that we should apply at this hearing for it to be backdated. Can I ask that that be done? We have been working on the case since February 2000.

LORD JUSTICE KEENE: Yes. We will grant legal aid, backdated in the terms in which you seek it.

MR TAYLOR:Thank you.

LORD JUSTICE KEENE: Thank you both very much. I am very grateful to Dr Brooke for attending today.