Case No: 201601646 A4
Neutral Citation Number: [2016] EWCA Crim 1867
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE LEWES CROWN COURT
HH JUDGE NIBLETT 
T20081106
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/12/2016
Before :

LADY JUSTICE SHARP
MR. JUSTICE STEPHEN MORRIS
and
THE RECORDER OF MAIDSTONE

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Between :

	Fuller	Appellant	
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	Regina	Respondent	

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Ms. Joanne Cecil (instructed by Scott Moncrief & Associates Ltd) for the Appellant
Mr. Ahmed Hossain (instructed by Crown Prosecution Service) for the Respondent

Hearing dates: 16 November 2016
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Judgment
Lady Justice Sharp
Introduction

1.	At the end of the hearing we granted the appellant the necessary extension of time and permission to appeal; we gave leave to refer to the fresh evidence put before us, and we substituted a hospital order pursuant to section 37 of the Mental Health Act 1983, as amended (the 1983 Act), together with a restriction order pursuant to section 41 of the 1983 Act, for the indeterminate sentence that was originally imposed on the appellant. We now give our reasons.
2.	On 6 March 2009, at the Crown Court at Lewes, the appellant was convicted after a trial, of 2 counts of attempted rape contrary to section 1(1) of the Criminal Attempts Act 1981 and one count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He and the victim were 15 years old at the time of the offence. 
3.	On 31 July 2009 he was sentenced to an indeterminate sentence of detention for public protection (DPP) with a tariff of 3 years, less 261 days spent on remand.  The appellant’s date of birth is the 15 October 1992. He was 16 at the time of sentence. He is now 24.  His tariff expired in 2011. He remains detained however pursuant to that sentence. He is currently in a Medium Secure Hospital Unit following transfer under sections 47/49 of the 1983 Act. 
4.	His applications for permission to appeal, against sentence, out of time, and for leave to refer to fresh evidence, were referred to the full court by the single judge.   The appellant has a fresh legal team. No criticism is made of his former legal advisors or of the judge who imposed sentence, HH Judge Niblett. The appellant asks for the substitution of a restricted hospital order under section 37/41 of the 1983 Act to replace the sentence of DPP on the ground that the fresh evidence now confirms he has (and had at the time of the offence) a significant learning disability that was previously undiagnosed and that a hospital order is the best way to ensure his effective rehabilitation and public safety.  
5.	The respondent, represented by Mr Hossain, accepts that the further material relied on as fresh evidence meets the criteria for admission in accordance with section 23(2) of the Criminal Appeals Act 1968; it does not challenge the further evidence from the psychiatrists now placed before us, and is neutral on the merits of the application itself. 
The appellant’s history  
6.	The appellant experienced a disrupted and difficult childhood. For reasons we shall come to, it is relevant to note that he is part of the traveller community. At the time of the offending, he lived with his mother and three younger half siblings. 
7.	He had been known to Child and Adolescent Mental Health Services since 1998. By then he had been diagnosed with significant hearing loss. He was made the subject of a Statement of Special Education Needs in 1999 in respect of Emotional, Social and Behavioural Difficulties following a history of aggressive and abusive behaviour. From the age of 7, he received extra support at school because his behaviour was uncontrollable. He was moved into special education at the age of 9 (Cuckmere House School) where he remained. There he had a long history of very violent behaviour towards peers and staff, as well as sexually concerning behaviour towards a female member of staff. The concerns of the staff were such that a multi-agency strategy meeting was held about him on 2 July 2008, very shortly before he committed the index offences. 
8.	The appellant had a number of psychological assessments during this period. In November 2002, it was noted his general abilities were in the below average range; and by the time of the instant offending in 2008, he was still unable to read or write. In 2003, he was investigated for the possibility of epilepsy, though it was thought that his behaviour was more likely to be psychological in nature. In November 2004, he was seen by a Consultant Child and Adolescent Psychiatrist, Dr. Azabaijani-Do whose opinion was that he was suffering from unsocialised conduct disorder and possible ADHD (attention deficit hyperactivity disorder). He was given drugs for his ADHD. He stopped taking his medication in December 2007. In the same month, his mother (to whom he is close) became concerned that he was becoming increasingly violent and aggressive at home towards her and his younger siblings, including threatening them with knives and scissors; and she was in fear for her safety. She felt her ability to manage the appellant’s behaviour had become increasingly limited as he had become older and physically stronger, to the extent she felt intimidated and controlled by him. 
9.	In August 2008, the appellant went to a barbeque at a friend’s house, where he became fairly intoxicated and smoked cannabis. He was later to tell the author of the pre-sentence report, Ms. Maggie Rudden of the East Sussex Youth Offending Team, that he was “buzzing” but not drunk, and knew what he was doing. He followed the victim into the bathroom.  There was then a prolonged assault, which continued despite the fact that others tried to force their way into the bathroom. During the attack, he digitally penetrated the victim’s vagina, attempted vaginal penetration with his penis, and attempted to penetrate the victim’s mouth with his penis. The appellant also masturbated over the victim, and urinated on her. The offence seriousness was aggravated by the fact that the attack was sustained and prolonged; the appellant did not desist when others tried to come into the room; the degradation of the victim; the possession of a Stanley knife at the time of the commission of the offence and the physical and psychological harm caused to the victim. 
10.	By the time of his conviction, the appellant had received a reprimand for common assault (in 2003); a four-month referral order for theft (in 2007) and a four-month reparation order for criminal damage, a one-year concurrent supervision order for an offence of assault (in August 2008) and a three-month conditional discharge for an offence contrary to section 4 of the Public Order Act (in November 2008). 
11.	Following the appellant’s conviction, sentence was adjourned for a number of months so that a full assessment of his mental health could be made. It is plain that all involved in this matter, including the judge, were concerned to discover whether a therapeutic placement was appropriate for the appellant.  
12.	The appellant was initially placed within a Secure Training Unit (Oakhill).  There he was verbally and physically aggressive to staff; and made several threats to kill them. Physical restraint of the appellant was necessary on several occasions. In consequence, the staff no longer felt able to contain his behaviour; he was returned to court, and remanded to Feltham YOI.     
13.	Dr. Richard Noon is a consultant forensic psychiatrist. He has been involved at various times in the appellant’s case since 2008, and gave oral evidence in support of the appeal. Dr. Noon produced a first report on the appellant, dated 5 November 2008 (therefore before conviction); a second report dated 6 May 2009, and a third report dated 30 July 2009. In his second report, Dr. Noon recommended that the appellant should be assessed by a specialised forensic adolescent service (Bluebird House, a Secure Forensic Mental Health Service for young people in Hampshire) to determine whether it was appropriate to make an interim hospital order under section 38 of the 1983 Act with a view to treatment within a medium secure in-patient facility.
14.	The assessment was carried out by Dr. Yolanda Devine, a forensic adult psychiatrist and a child and adolescent forensic psychiatrist employed at Bluebird House. Her report dated 20 July 2009, was considered by Dr. Noon, in his third report, and by Ms. Rudden, in an addendum pre-sentence report dated 29 July 2009.  
15.	In the event, Dr. Noon and Dr. Devine were in agreement. Having examined the matter with care, the psychiatrists concluded that the appellant did not suffer from a mental illness, requiring treatment, and they did not therefore recommend either an interim hospital order under section 38 of the 1983 Act, or his admission under section 37 of the 1983 Act. In their opinion, he satisfied the criteria for a diagnosis of ADHD, and a ‘conduct disorder’. They each said he was too young to make a diagnosis of personality disorder. However, the early onset of his behavioural abnormalities, coupled with their severity, made it very likely that he would suffer from an antisocial personality disorder as an adult. They both assessed him as being at high risk of committing further violent or sexual offences, and as posing a significant risk of serious harm to the public. 
16.	Dr. Devine in particular, expressed herself in stark terms. She said that the appellant’s potential for extreme and often unpredictable violence either of a physical or sexual nature, cannot be underestimated. She regarded the appellant’s inability to control his aggression, even in a custodial setting, when facing serious charges, as particularly worrying; it indicated his extreme difficulties in controlling his anger, and his failure to learn from previous experiences. She considered medication, though helpful in controlling his arousal levels, would only have a limited role to play in helping him, and his difficulties would best be addressed by a psychotherapeutic approach. Although she and Dr. Noon concluded, as we have indicated, that the appellant was not suitable for in-patient psychiatric treatment, they drew attention to his potential vulnerability in a custodial setting; his history of self-harm, and to the possibility that he may become mentally ill once in custody. 
17.	In the light of those reports, the judge’s sentencing options were very limited. In his sentencing remarks, the judge said that he had adjourned sentence on a number of occasions to enable the fullest assessment to be made and to give the appellant every opportunity to explore the possibility of a more therapeutic disposal. However, the experts’ reasons for concluding that the appellant satisfied the criteria of dangerousness were cogent, and they did not recommend that a hospital order be made. In the circumstances (albeit with obvious reluctance, and after anxious consideration) the judge considered that he had little option but to pass an indeterminate sentence. Because the appellant was under 21, the option of an order under section 45A of the 1983 Act (to pass a sentence of imprisonment and to make a direction for hospital treatment together with a limitation direction, which is the equivalent of a restriction order) was not available. 
The events after sentence
18.	The events after sentence are dealt with by the appellant’s solicitor, Dr. Janes, in the Gogana witness statement of the 4 April 2016 prepared for the purposes of this application; and in the fresh evidence we admitted. The fresh evidence consists of a psychiatric report by Dr. Withecomb dated 19 April 2012; a neuropsychological report by Dr. David Murphy dated 9 July 2014; a letter from Dr. Callum Ross dated 9 June 2015, and a fourth report from Dr. Noon dated 1 October 2015. The current position is dealt with in a report by a psychiatrist at the medium secure unit, specialising in learning disabilities, where the appellant is currently placed. 
19.	There can be no doubt, on the evidence placed before us, that the appellant has had very significant problems coping with prison life, which became worse when he entered the young adult estate in October 2010.  There were numerous disciplinary problems, and adjudications against him. He spent long periods in isolation, he would self-harm, he became increasingly depressed and suspicious, and complained of hearing voices. During this period, he set fire to his prison cell, and pleaded guilty to a charge of arson, which was dealt with by way of a concurrent prison sentence of 12 months’ imprisonment, imposed on 24 January 2013.
20.	He was not considered suitable for a hospital transfer by the in-reach psychiatrist. However, Dr. Withecomb, a psychiatrist instructed after the expiry of the appellant’s tariff in November 2011, for the purposes of his first parole review, concluded that he had a personality disorder, and that his cognitive functioning required further exploration. She described his mental health picture as complex; and she identified one clear-cut mental illness (depression) as well as a range of other mental health difficulties and needs. 
21.	The appellant’s parole hearing did not proceed however, because following a further assessment by Dr. Noon in January 2013, the appellant was transferred to a medium secure hospital on 13 February 2013 pursuant to section 47/49 of the 1983 Act; provisions which give power to the Secretary of State by executive order to transfer a prisoner from prison to hospital, so as to secure necessary treatment, with restrictions. At that point, Dr. Noon’s opinion was that the appellant was suffering from a depressive illness of moderate severity. He noted the appellant had some paranoid ideas, and thought he could be developing a psychotic illness. He also noted concerns over the appellant’s cognitive ability, and that his functioning may be considerably lower than had originally been thought. However, the appellant’s admission was “eventful”: he was threatening and hostile to staff at the hospital, one of whom he assaulted, and he was transferred back to prison on 8 March 2013.
22.	After the appellant’s return to prison, his parole hearing took place; at that hearing, there was, we are told, a consensus that little could be achieved for the appellant by way of meaningful risk reduction within the prison system. 
23.	The appellant was then seen by Dr. Ross, a Consultant Forensic Psychiatrist at Broadmoor Hospital, where he is the head of personality disorder services. Dr. Ross’s opinion was that the appellant suffered from an antisocial personality disorder of a nature and degree that would require continued treatment in hospital; and that he may fulfil the criteria for a diagnosis of learning disability though this needed to be assessed. The appellant was then accepted for admission at Broadmoor and he was transferred there (after some administrative delay) under sections 47/49 of the 1983 Act on 22 April 2014, with Dr. Ross as his responsible clinician. 
24.	Whilst at Broadmoor, the appellant underwent a detailed assessment by Dr. Murphy, a Chartered Forensic Consultant Clinical Neuropsychologist. In his report of 9 July 2014, Dr. Murphy said that although the appellant presented as more cognitively able than he was in reality, and had some adaptive functioning skills, on assessment of his intellectual functioning, he functioned in the “extremely low” range, with an estimated IQ of between 51 and 59. 
The current views of Dr. Noon and Dr. Ross
25.	In the light of Dr Murphy’s opinion, both Dr. Noon and Dr. Ross undertook further assessments of the appellant. Their evidence, both in writing and at the hearing before us, can be summarised as follows.
26.	The appellant’s detention under the 1983 Act would have been appropriate at the time of sentence, as he was suffering from a mental disorder that was susceptible to treatment, such that it is highly likely that a detention under that section with a section 41 Restriction Order would then have been recommended, and considered appropriate.
27.	Taking it in stages, first, the appellant’s learning disability associated with his abnormally aggressive and seriously irresponsible behaviour, constituted a mental disorder for the purposes of section 37 of the 1983 Act.  
28.	Secondly, the learning disability, which was two standard deviations below the mean, and meant the appellant functioned at an extremely low intellectual range, was highly likely (Dr. Noon) to have been present at the time of the offence. Dr. Ross said he was confident that it was. There was nothing, for example a discrepancy between verbal and performance IQ, or a head injury, to indicate there had been a deterioration in his premorbid functioning since his sentence.  Further, this was a lifelong, permanent condition. 
29.	Dr. Noon said the appellant had been referred back to his care because of a whole raft of difficulties, including episodes of self-harm, and pseudo-psychotic symptoms; and at that point, he was still working on the primary diagnosis of a personality disorder. In the event however, it had taken a very long time to get to the bottom of what was wrong with the appellant. 
30.	Dr. Noon’s original opinion had been based on previous assessments that the appellant’s intellectual functioning was borderline/below average. But there had never been a full investigation into his learning disability or its extent, until the comprehensive assessment conducted by Dr. Murphy at Broadmoor where there had been a proper opportunity to investigate the matter thoroughly. This had shown that the appellant had a substantially impaired intellect – much greater than Dr. Noon had previously thought to be the case. 
31.	When Dr. Noon was asked why he had not picked this up earlier, he said: “You continue to learn.”  Though it was known for example, at the time of the original assessment that the appellant could not read or write, this was not an uncommon feature in people that he sees.  The appellant had also provided a “good social cover” for his disability and to a certain extent, played to his background as a traveller. 
32.	Thirdly, the link between the appellant’s offending and mental disorder was complex. There were a number of factors that were likely to have played their part in that offending, including the appellant’s disturbed and dysfunctional background, his use of alcohol on the night, and the lack of adequate adult supervision at the party. However, effect of the appellant’s mental disorder upon the offending was of very considerable significance in this regard. Dr. Ross said the appellant’s mental disorder, and the offence were inextricably linked. Both psychiatrists considered that the level of the appellant’s learning disability was such, that he was simply unable to understand or recognise social norms, interpret social cues, and understand social situations.  
33.	Fourthly, the level of the appellant’s functioning meant he was never going to manage or to progress within the prison estate. Quite apart from his obvious vulnerability, the prison estate did not have the ability or the facilities to manage someone with this low level of functioning. Dr. Noon said the average IQ of those within the prison estate was in the mid-80s. The latest studies showed that seven per cent of the prison estate had IQs of less than 70 i.e. falling within the learning disability range. They were catered for by specialist programmes that were available. However, in his opinion, the appellant’s IQ was simply too low for that. 
34.	Fifthly, Dr. Noon and Dr. Ross addressed the issue of treatment, risk reduction and future release. 
35.	Both considered that the appellant’s learning disability was life-long; that his mental disorder was not curable, but was treatable, and treatment would diminish the appellant’s risk over time. Dr. Noon said, there was a lot that could be done, through the use of adaptive and cognitive skills treatment together with individual work in relation to sex offending, supported by antipsychotic medication, which reduces arousal. He said current reports showed the appellant’s progress was “bumpy”, but he is improving, as would be expected. However, the length of time it would take for there to be a reduction in risk should not be underestimated: there was a “long pathway” in front of the appellant. He estimated the appellant would be in hospital for at least another 8 to 10 years, and even after that, he would never be able to live independently, but would require long-term (and 24 hour) community support. 
36.	Realistically, he considered the only route to reducing the appellant’s level of risk was in hospital. He said the prison estate could not properly address let alone recognise the subtlety of the appellant’s condition. Further, his release would be dependent upon a mental health assessment, whether it was made via the Parole Board “route” or through the Mental Health Tribunal (the FTT). Either way, if the appellant were to be released, mental health services would be best placed to identify the risks that might give rise to a recall; and their management of the offender would offer the best protection to members of the public.  Further, he was concerned that unless a hospital order was made, there might be pressure from the hospital authorities further down the line to transfer the appellant back to the prison estate once he had reached a certain level of manageability and compliance, and if that were to happen it would have a significant impact on the appellant’s mental health, and the circumstances of his release, when he would be monitored only by the probation services who would not have the necessary expertise to do so. 
37.	Dr. Ross was of the same view. He also said that the appellant was currently being treated by anti-psychotic drugs “off-licence” at the maximum dosage, which had very severe side effects. The appellant would require these drugs long-term. He was not confident this could be managed within the prison estate: and the risk the appellant posed was significantly increased if he did not take his medication. Dr. Ross was not confident either, that the probation service would “pick-up” on the appellant’s compliance with his medication regime, whereas the mental health professionals would. Overall, he was clear that the appellant would be better supervised after release through the mental health pathway, where he would be monitored by a multidisciplinary team. He made the additional point that the appellant was currently pre-occupied with the possibility that he might have to return to prison, and his agitation in this respect was itself affecting the progress of his treatment. 

The current position
38.	On 8 October 2015, the appellant was transferred to his current placement, which is in a medium secure hospital, where we are told, he continues to make progress and remain suitable for treatment, and a bed continues to be available for him.  We have before us a very recent letter (undated, but received by the appellant’s solicitors on 10 November 2016) from his responsible clinician, a consultant forensic psychiatrist. She describes his current diagnosis as Mental Retardation Personality Disorder (mixed type – borderline and anti-social) and that in her view, he is appropriately placed in a secure hospital under medium security conditions. We are also told he is engaging well in treatment, and that the care pathway envisaged for him (on the assumption that a hospital order is made, and subject to a satisfactory risk assessment at every stage) is eventual progression to a low security unit and then discharge into the community. 
Discussion
39.	The relevant parts of section 37 of the 1983 Act provide that. 
“(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law,. . . and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order…
(2) 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…—
(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.
40.	Section 41 of the 1983 Act permits the court to make an order restricting an individual from being discharged or transferred from hospital without the consent of the Secretary of State. 
41.	The principles which should guide a court in determining whether to make a hospital order under the 1983 Act either at the time of sentence, or on appeal in substitution for a custodial sentence, are identified in R v. Vowles and ors [2015] EWCA Crim 45; [2015] EWCA Civ. 56: see in particular paras 44 to 56. 
42.	In Vowles it was emphasised that the issues which arise when the court is contemplating making a hospital order, must be examined with great care. The court is not bound to accept the psychiatric opinions which are put before it; and it must take into account, not only the psychiatric evidence, but also broader issues such as the extent of the culpability attributable to the mental disorder, the need for punishment, the need to protect the public and the regime which may be available on release: see para 48. We obviously bear those matters very much in mind.
43.	The appellant, if we can put it this way, is clearly in the right place at the moment. The evidence that he is suffering from a complex mental disorder that needs very specialist treatment in hospital is comprehensive, and we accept it. The nature of his mental disorder, as described by the doctors with recent care of him since his transfer from the prison estate, is lifelong and remitting. We are also quite satisfied that he was suffering from this mental disorder when he committed the index offences, and that the disorder contributed significantly to their commission. The appellant’s disorder was not identified at the time, for the reasons Dr. Ross has explained; and as the fresh evidence demonstrates, the nature and severity of that condition, did not emerge until the very thorough assessment of the appellant subsequently undertaken at Broadmoor.  
44.	We are in no doubt that had the judge known of the appellant’s mental disorder at the time of sentence, he would have made a hospital order rather than the order of DPP which he imposed, with evident reluctance, on the deeply troubled young man, who appeared before him.  The judge had very much in mind, so it seems to us, the issues of welfare and rehabilitation which are relevant to sentencing someone of the appellant’s age at the material time. Ms Cecil mentioned this issue in the course of her submissions in relation to the issue of punishment, but as she pointed out, she did not need to develop them, since the appellant is now 5 years post-tariff and the issue of punishment is therefore an academic one.   
45.	We are told, and have no reason to doubt, that the treatment the appellant requires to manage his mental disorder, and reduce his level of risk, is not available to him in the prison estate. In those circumstances we can understand the concern expressed by Dr. Noon and Dr. Ross, at the prospect that the appellant may be returned to prison at some time in the future, if the treatment he is currently receiving reduces his risk to a manageable level. The effectiveness of the current treatment and its benefit in reducing his level of risk is demonstrable from the evidence of the appellant’s progress since his admission to the high secure unit at Broadmoor, which has allowed for his subsequent transfer to a medium secure unit.  It is anticipated that at some point, very much in the future, he may progress to the point where his release into the community can be contemplated, although even then, as Dr. Ross has said, he will be likely to require full-time supervision and careful monitoring by a multidisciplinary mental health team. 
46.	This brings us to what might be described as the principal purpose of this appeal. In this case, as in those considered in Vowles, the appeal is brought to ensure that the appellant’s release should be via the mental health pathway, rather than through the prison estate, and after consideration by the Parole Board. 
47.	There are differences between a hospital order and an indeterminate sentence in relation to both release, and recall. These were summarised by Hughes LJ as he then was in AG’s reference No 54 of 2011, [2012] 1 Cr App R(S) 106, at para 17, in a passage cited with approval in Vowles at para 48:
“It is true that the detention for public protection regime and the section 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.”
48.	The making of a hospital order with restrictions will not however merely affect the threshold test for the appellant’s discharge into the community or the trigger point for his recall. There are other practical differences between a section 37/41 order and a section 47/49 order as the court explained in R v Semanshia [2015] EWCA Crim 2479 at para 27: 
“Under a section 37/41 order an offender can continue to receive treatment in a secure setting in a supported and secure environment, permitting his being tested and over time stepped down as regards level of security as he progresses, until a conditional discharge in the community (subject to conditions and to recall so as to reduce risks to the public) is in place. He would also be far more likely to receive the forensic psychiatric help he requires when eventually discharged into the community. Under section 47/49 he will at some stage be transferred back to a prison environment and discharged back into the community following a parole hearing. He might then be put in contact with local mental health services, but will not have the same level of scrutiny, supervision and support, nor be subject to conditions or recall, thus increasing risks to his well-being and public safety.”
49.	In our view, the interests of the appellant, which in truth, are aligned with the public interest, are clearly best served if his release is made pursuant to the 1983 Act regime, that is through the First-tier Tribunal (Health, Education and Social Care Chamber (Mental Health)), who can then determine his terms of release; with his (close) care thereafter being provided through mental health services. As his treating doctors have made clear, the appellant’s release into the community can only be contemplated if he is properly monitored by a multidisciplinary mental health team, who are aware of his mental health condition; and who will be best placed to identify any non-compliance with any medication regime for example, or deterioration in his condition which could elevate his level of risk, and require his return to hospital for further treatment. In short, a hospital order with restrictions is most suitable for the appellant and ultimately, for the protection of the public.
Anonymisation
50.	Finally, we turn to a discrete issue relating to the anonymisation which we have been asked to address.  Ms Cecil invites us to anonymise in this judgment the appellant’s name, the medium secure unit in which he is now placed, and the name of his responsible psychiatrist there. She does not however ask us to make an order to this effect, which would bind third parties. Ms. Cecil relies on R v. F [2003] EWCA Crim 3268, on the decision of the Supreme Court in R (on the application of C) v Secretary of State for Justice [2016] UKSC 2 and on Part 6 of the Criminal Appeal Rules 2016 (CPR). 
51.	The genesis of the application is the appellant’s concern that other patients in his current facility might find out about the nature of his offence if this case is reported. This led his solicitors to ask his responsible clinicians to comment on the impact such reporting may have on his rehabilitation. Dr. Ross expresses the view that such reporting, or even the mere fact that he may learn that his name is in the public domain, has the potential to have a negative effect on the appellant’s risk management, because it would be stressful, and the appellant responded poorly to stress. His current responsible clinician agrees with Dr Ross. 
52.	There is no doubt that the court has the power to publish a judgment other than in its usual form, to ensure that it does not infringe a party's article 8 Convention rights and therefore act unlawfully under section 6 of the Human Rights Act. See for example, the observations of Lord Rodger in In re Guardian News and Media Ltd and ors [UKSC 1][2010] 2 AC 697 at paras 28. In that case, the court was concerned with the approach to be adopted when it was asked to make an anonymity order, and held it was necessary to balance the competing interests engaged under article 10 of the ECHR in freedom of expression, and the open justice principle on the one hand, and the applicant’s rights under article 8 of the ECHR on the other. At para 52, Lord Rodger said: "… the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
53.	In R (C) the Supreme Court decided that the appellant, a mental patient, should be granted anonymity in unsuccessful judicial review proceedings brought to challenge the refusal of the Secretary of State to give consent for the appellant to have unescorted leave in the community.  The appellant was in hospital, pursuant to a direction by the Secretary of State under section 47 of the 1983 Act; and his crime, a double murder, committed some 14 years earlier was a notorious one. 
54.	Lady Hale, with whom the other members of the court agreed, rejected the submission that there should be a presumption of anonymity in civil proceedings in the High Court relating to a patient detained in a psychiatric hospital or otherwise subject to compulsory powers under the 1983 Act. At para 1 she said: 
"The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge."
55.	At para 36 she said:
"The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them. On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he is no longer a risk either to himself or to others. That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way which enables the public to identify the patient. It may also be put in jeopardy unless patients have a reasonable expectation in advance that their identities will not be disclosed without their consent. In some cases, that disclosure may put the patient himself, and perhaps also the hospital, those treating him and the other patients there, at risk. The public's right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure."

56.	The application made on behalf of the appellant in this case was not opposed, and we did not hear fully developed argument on the issues that it raises. Our view however is that there is no difference in substance between the principles which apply when the court is invited to anonymise a judgment without an order, and those that apply when the court is asked to make an order to that effect which is binding on third parties. It is true that the incursion into the article 10 rights of third parties (to report the name of a party) is obviously much greater in the latter case than the former.  Either way however, there is a derogation from the principle of open justice which requires to be justified on grounds of necessity, and the procedures in Part 6 of the CPR, Reporting etc. Restrictions, with any relevant adaptation, should be followed. 
57.	The court in R(C) came to the conclusion that an anonymity order was necessary in the interests of the patient on the facts of that case, because without it there was a very real risk that the progress C had made in the long years of his treatment in hospital would be put in jeopardy, and his reintegration into the community, which was an important purpose of his transfer to hospital would not succeed: see paras 37 to 40. 
58.	Ms. Cecil argues that the same considerations apply to this case. We do not think that they do. We quite accept that the appellant is vulnerable. It is true too, that the nature of the issue before the court has required us to refer to the appellant’s medical records, his mental health condition and his treatment. But these matters do not on their own give rise to a case for anonymity. The appellant is currently in a specialist unit for those with severe learning disabilities. We have been told, and accept that he is likely to remain in that unit, or somewhere similar for about ten years. This case, unlike that of R(C) is not notorious; it has attracted no media interest and there is no immediate or imminent prospect of the appellant’s reintegration into the community. We would add that we have not named the unit where is he currently placed, or his responsible clinician. These are steps short of anonymisation we think it reasonable to take. 
59.	In all the circumstances, we think it very unlikely that those within the appellant’s current placement would come to know of this judgment on their own; and we regard the prospect that the appellant’s rehabilitation or treatment will be impeded by naming him in the judgment, to be remote.  None of the arguments advanced persuade us that it is necessary to anonymise the judgment, and we decline the request that we should do so.