Neutral Citation Number: [2015] EWCA Crim 474
Case No. 2014/04270/A4

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  27th  February  2015

B e f o r e:

LORD  JUSTICE  PITCHFORD

MR  JUSTICE  COOKE

and

MRS  JUSTICE  LANG  DBE
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R E G I N A
 
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DARREN  MARSHALL
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Mr A Walker appeared on behalf of the Appellant
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J U D G M E N T

LORD JUSTICE PITCHFORD:  I will ask Mrs Justice Lang to give the judgment of the court.

MRS JUSTICE LANG:
1.  On 12th March 2014 in the Crown Court at Newcastle upon Tyne the appellant pleaded guilty to an offence of violent disorder, contrary to section 2(1) of the Public Order Act 1986.  On 12th August 2014 he was made subject to a hospital order, pursuant to section 37 of the Mental Health Act 1983, and a Football Banning Order for six years.

2.  With the leave of the single judge he appeals against sentence on the ground that a suspended sentence of imprisonment should have been imposed, not a hospital order.

3.  In April 2013 a violent disorder occurred in Newcastle City Centre on the occasion of a football match between Newcastle United and Sunderland.  Despite heavy police presence, the Newcastle supporters ran amok, broke through the police cordons and attacked police officers, police horses and vehicles with bottles, rocks and anything they could find on the street – from bins to bicycle parts.  Sunderland fans were also attacked.  Ordinary members of the public were intimidated and put at risk.

4.  The judge had regard to the duration of the disorder and its effect.  Although it was not pre-planned, it involved persistent and sequential intimidation and violence in four different locations under the umbrella of constant threats, chanting, gesturing and the throwing of missiles.  It was a serious and notorious incident, fuelled by excessive drinking.

5.  The judge found that, although he had not attended the game, the appellant had joined the crowd voluntarily and was well aware that some were throwing bottles at the police and at Sunderland fans.  He was seen on CCTV by an upturned rubbish bin with other fans, taking out bottles.  He was seen holding a bottle in each hand.  There was no evidence that he threw the bottles, but he was clearly a party to the activity which was going on at that location.  He went with the crowd through the unauthorised entrance to the railway station where police were trying to provide a safe passage for the Sunderland supporters to travel home.  He was captured on camera running away from the police on the platform, and then going back inside the station once he had managed to evade police attention.  He was identified from CCTV and arrested.

6.  When he was interviewed he declined to comment.  He later pleaded guilty at the first reasonable opportunity.

7.  The judge rightly said that when dealing with cases of this kind it was the collective effect of the offending as a whole, not just the individual conduct of the offender, which must be considered when sentencing.  Moreover, when offences of this kind are committed by large groups, the sentences passed must include an element of deterrence.  

8.  The appellant, who was aged 30 at the date of sentence, has eight previous convictions for ten offences, including a sexual assault; four public disorder offences; an offence of battery, for which he was given a community order with unpaid work; and an offence of causing grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861, for which he was given a suspended sentence of imprisonment of 51 weeks and an unpaid work requirement. He completed his unpaid work requirements and had no convictions after 2009 until the index offence.

9.  We agree with the judge that this offence was so serious that only an immediate custodial sentence was justified, and that a suspended sentence or a community order would not meet the seriousness of the offence.  We note the others who were involved in this violent disorder were given immediate custodial sentences.  Those named on the same indictment as the appellant received sentences ranging from nine to eighteen months.

10.  However, the judge made an exception in the appellant's case because he was persuaded by the psychiatric evidence that the appellant was too vulnerable to cope with a sentence of imprisonment by reason of his learning disabilities.  The expert evidence was that his mental state would rapidly deteriorate in prison, and he would most likely be transferred to a psychiatric hospital.

11.  Full assessments were undertaken to explore the options of either treatment in the community or a hospital order.  Under section 37 of the Mental Health Act 1983 the judge had to be satisfied that two conditions were met. First, on the evidence of two registered medical practitioners, that the appellant was suffering from a mental disorder which was of a nature or degree which made it appropriate for him to be detained in hospital and that appropriate treatment was available for him. Second, having regard to all the circumstances, including the nature of the offence, the character and antecedents of the appellant, and to the other available methods of dealing with him, that the most suitable method of disposing of the case was an order under section 37.

12.  The pre-sentence report assessed the appellant as posing a medium risk of causing serious harm to the public.  This was the third specified offence he had committed.  His offending behaviour was linked to alcohol abuse, his inability to assess risks and manage anger, and a tendency to be easily influenced by others.

13.  There was a consensus of opinion among the medical experts, Dr Hughes (a Clinical Psychologist), Dr Thorp (a Consultant Forensic Psychiatrist), and Dr Ince (a Consultant in Forensic Learning Disability Psychiatry).  In summary, the consensus was that that the appellant had a mental disorder, namely, a mild learning disability associated with abnormally aggressive and irresponsible conduct, and that he required intensive therapeutic treatment.  His mental state was of a nature and degree which warranted attention in hospital.  He represented a risk to others, as demonstrated by his previous convictions, and also other patterns of behaviour which had not resulted in criminal convictions but were cause for concern.  He was also at risk because of his history of self-harming and his vulnerability to exploitation.

14.  The medical experts concluded that the appellant needed a structured specialist programme of treatment for emotional regulation and anger management, sex offending and alcohol misuse.  
15.  The Community Learning Disability Team (which included the Clinical Psychologist Dr Hughes), had had experience of seeking to support and assist the appellant since 1995.  There was a history of the appellant failing to attend appointments, not taking medication, and refusing to engage in any meaningful therapeutic work.  In the light of the difficulties which had been experienced with treating him, the medical experts were unanimous in their view that the appellant would be non-compliant with treatment in the community, and if he did attend appointments, he would do so only to fulfil the terms of the order.  He would refuse to engage in a meaningful way with any treatment offered.

16.  The probation officer also agreed with the recommendation of a hospital order.  She advised that the appellant had been assessed as unsuitable for unpaid work, programmes or a curfew, because of his mental health.

17.  The judge gave careful consideration to all the relevant material and concluded that the section 37 conditions were met, and that a hospital order was the most suitable method to deal with him.  

18.  Following the grant of leave to appeal, a further psychiatric report was obtained from Dr Thorp, who is the responsible clinician since the appellant was admitted to hospital on 12th August 2014.  The report is dated 9th December 2014.  In summary, the appellant has self-harmed and been verbally and physically aggressive to staff and fellow patients.  The report concludes that he is most appropriately placed in hospital in order to undergo therapeutic work which will ameliorate his risks in the community.

19.  The appellant, through his counsel, conceded that the section 37 conditions were met, but submitted that a hospital order was not the most suitable disposal for him, either at the time of sentencing or now.  His offending behaviour and his mental state merited a suspended sentence with supervision, unpaid work and a curfew.  Counsel submitted that a hospital order was draconian, because it was likely to continue much longer than the prison sentence he would otherwise have received.  

20.  In our judgment the sentencing judge was entitled to reach the conclusion that a hospital order was the most suitable disposal for the appellant in the light of his history, his mental state, and the unanimous opinion of three medical experts, supported by the probation officer.  The suspended sentence proposed by the appellant was not realistic in the light of his non-compliance with treatment and the risk which he represented to the public and to himself.

21.  It is important to note that the appellant's discharge from hospital has not been restricted by an order under section 41 of the 1983 Act.  As the Court of Appeal said in R v Birch (1990) 90 Cr App R 78, per Mustill LJ at 84:

"Once the offender is admitted to hospital pursuant to a hospital order … without restriction on discharge, his position is almost exactly the same as if he were a civil patient.  In effect he passes out of the penal system and into the hospital regime.  Neither the court nor the Secretary of State has any say in his disposal.  Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled.  If the authority expires without being renewed, the patient may leave.  Furthermore, he may be discharged at any time by the hospital managers or the 'responsible medical officer'. …

…

… 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 ...  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."

22.  These passages were approved by the House of Lords in R v Drew [2004] 1 Cr App R(S) 8, per Lord Bingham, at paragraphs 9 to 10.

23.  In this case, although the medical experts thought that the likely period of treatment could be four to five years, the appellant has the right to apply to the independent tribunal for discharge after six months, and thereafter on an annual basis.

24.  Having reviewed the updated psychiatric report, we are satisfied that the conditions for a hospital order under section 37 continue to be met, and it remains the most suitable disposal.

25.  Despite Mr Walker's impressive submissions, we have concluded that for these reasons the appeal must be dismissed.

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