No: 200304411/A6 
Neutral Citation Number: [2004] EWCA Crim 3014
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 12th October 2004
 
B E F O R E:

THE VICE PRESIDENT 
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS 
 
MR JUSTICE BEAN 
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R E G I N A 

-v- 

JOHN (AKA JOHN DENNIS) LOMEY (AKA ANDREWS)
 
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Computer Aided Transcript of the Stenograph Notes of 
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MR J DEIN QC & MR J MANN appeared on behalf of the APPELLANT
SIR J NUTTING QC appeared on behalf of the CROWN
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J U D G M E N T
1.	THE VICE PRESIDENT:  On 8th May 1984 at the Central Criminal Court, this appellant pleaded guilty to a number of offences and on 13th June 1984 he was sentenced by His Honour Judge Underhill QC in the following way:  on count 4, causing grievous bodily harm with intent, life imprisonment; on counts 1, 3 and 5, which were of aggravated burglary, 18 months' imprisonment concurrently to each other and concurrently to the life sentence; on counts 2 and 6, assault occasioning actual bodily harm, 2 years' imprisonment concurrently and concurrently to the life sentence; on count 7, for damaging property, 6 months' imprisonment concurrently; and for breach of a suspended sentence, imposed in relation to two offences of criminal damage, 18 months' imprisonment on each concurrently to all the other sentences.  The total sentence was therefore one of life imprisonment.
2.	On 23rd September 1984 an application for leave to appeal against that sentence was refused by the Single Judge.  On 11th December 1984 the Full Court refused a renewed application for leave to appeal against sentence.
3.	He now appeals to this Court, on a Reference made by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, on the basis that there is a real possibility that this Court might conclude that the imposition of a life sentence should now be considered to have been inappropriate and that the appropriate disposal should have been an order under sections 37 and 41 of the Mental Health Act 1983.  The course which Mr Dein QC, on behalf of the appellant, invites us to follow as the preferred alternative is that we should grant an absolute discharge in relation to the offences and, if not that, then the Court should make an order under the Mental Health Act.
4.	Before addressing those two possibilities it is necessary to rehearse, briefly, the circumstances of the offences and the history of the appellant since he was sentenced.  The appellant and his wife were married in 1955.  They had three children, one of whom, sadly, was mentally handicapped.  The marriage came under strain and by 1978 the wife had obtained a judicial separation and court orders preventing the appellant from re-entering the family home.  In 1982 the appellant was convicted of gaining access to the property and causing criminal damage.  In early 1983 the wife was granted a Family Protection Order.  In June 1983, while the wife was away on holiday, the appellant broke a window at her flat, entered and broke furniture.  It was by reason of this that the suspended sentence of imprisonment for 18 months, to which earlier we referred, was imposed on 18th November 1983, for criminal damage.  Five days after that sentence had been suspended, that is to say on 23rd November 1983, the appellant, who was carrying a spade, entered a flat next door to his wife's flat.  With the spade he assaulted the occupier of the flat.  That gave rise to counts 1 and 2 of aggravated burglary and assault occasioning actual bodily harm.  The appellant then went to his wife's flat and smashed a bedroom window to gain entry.  He assaulted his wife with the spade, causing lacerations to her head and fractures to her fingers.  That gave rise to counts 3 and 4 of aggravated burglary and causing grievous bodily harm with intent.
5.	The appellant then went to the flat of his daughter, Kim, who we understand is in Court today supporting the appellant.  She summoned assistance but, before assistance arrived, the appellant assaulted her with the spade, injuring her ankle and causing damage to property.  That gave rise to count of aggravated burglary, count 6 of assault occasioning actual bodily harm and count 7 of damaging property.  
6.	The appellant was arrested.  In interview he said that he had behaved as he did because his family were telling the police about his activities and he complained that his neighbours were racist.  He made a statement under caution in which he said he had intended to poke out a neighbour's eyes with a toothbrush but, when he found he had no tooth brush, he decided to kill his wife's neighbour and his mother.  When that had failed he had gone to his wife's, whom he had given two whacks with the shovel.  He thought she was dead. He had decided to do the same to his daughter, Kim.
7.	The learned sentencing judge referred to the appellant's long record of violent and dishonest offences.  The reports before the Court - and it is accepted by Mr Dein today that this was an accurate summary by the judge of the position in relation to the reports before him - did not permit him to make a hospital order.  The appellant, the judge said, had a personality disorder of severe degree, made worse by resort to alcohol in times of stress.  The judge spoke of the statement under caution making alarming reading and said that the appellant's family and the community needed protection from him.  The sentence of life imprisonment which he felt obliged to pass would ensure that he was kept confined while he remained a danger to others. He could be released when that was not the situation.  As will emerge that is what has happened.
8.	The appellant was born in October 1935 and he is therefore only a few days short of his 69th birthday.  He has a considerable number of convictions, since 1955, mostly offences against property, though including a considerable number of offences of violence and a conviction for manslaughter in 1970, when he was sentenced to 3 years' imprisonment.
9.	It emerged, within a comparatively short time of the sentencing process, that the appellant suffered from paranoid schizophrenia which responded to medication. After the matter had been considered by the Full Court, when they had refused the renewed application for leave to appeal against sentence in December 1984, a report was obtained which referred to the appellant's psychotic symptoms, ameliorated by medication and saying that the appellant had for many years suffered from a paranoid psychotic disorder.  In May 1985, by reason of the medical reports then available, the Secretary of State exercised his powers of transfer in relation to the appellant and he was transferred from prison to Park Lane Mental Hospital.  For the 19 years since then he has not been in prison.  In a moment we shall come to what, more recently, has been his position.  
10.	There was a report from the Mental Health Tribunal, in September 1993, referring to the appellant's tariff date as being November 1991, his mental illness as then being well controlled by medication and recommending that his discharge should proceed in a gradual manner.  There was a further psychiatric report, in May 1999, saying that his schizophrenia had been in remission for years and was no longer of a nature or degree to render him liable to detention under the Mental Health Act.  There was a report, in January 1999, from the Mental Health Tribunal saying that he now posed little risk to others.  His mental illness had been controlled for many years and he was fit to be conditionally discharged.
11.	There were reports by Dr Duffield which formed the basis of the Criminal Cases Review Commission's Reference, referring to the transfer to hospital within less than a year of the sentence to life imprisonment being imposed. There is substantial evidence that he suffered from his mental illness at the time of the offences and at the time when he was sentenced to life imprisonment, and that he would have met the criteria for orders under sections 37 and 41 of the Mental Health Act.
12.	A further psychiatrist's report, in February 2000, referred to the appellant's good insight into his illness, his need to continue taking medication and to refrain from taking inappropriate drugs and alcohol, and saying that there was a low risk of future dangerous behaviour.  He is presently the subject of 24 hour nursed care with close supervision in conditions at St Martin's Taurs House into which he was released on 8th September 2000.  He was released there by reason of a decision of the Parole Board's Lifer Panel and he was released there on life licence.  He has been at liberty ever since, under the supervision of the probation service and the care of Dr Duffield.
13.	The basis of the Reference to this Court is that this Court might now make the orders which it is said would have been appropriate when the appellant was sentenced to life imprisonment had the court then had the material now available, that is to say, an order under section 37 of the Mental Health Act 1983, with a restriction order under section 41 of that Act.  The difficulty with that course, as was pointed out to Mr Dein during the course of his realistic submissions to this Court, is that, although by virtue of section 11(3) of the Criminal Appeal Act 1968, on which Mr Dein relied, this Court does have power to pass such sentence or make such order as is appropriate and as the court below had power to pass, the nature of this Court's powers under the Mental Health Act are statutorily circumscribed.  In particular, there are two preconditions for the order which is sought under that Act which are simply not fulfilled.  First, there is no bed available for Mr Lomey, and secondly, of more significance, he does not suffer, now, from a mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital.  On the contrary, it is common ground that he does not require such treatment and he does not require such detention.  Accordingly, however sympathetic the Court may be to the position of Mr Lomey, it seems to us that we simply do not have the power to make orders under the Mental Health Act of the kind which Mr Dein invites us to make.
14.	The preferred alternative advanced before us by Mr Dein, (although, as is apparent from what we have said, this was not contemplated on the Reference), is that we should impose an absolute discharge on the appellant in relation to these serious offences.  The way in which Mr Dein puts the matter is that the risk to Mr Lomey of his being recalled under the Life Licence to which he is presently subject, is a real injustice which can only be ameliorated by an absolute discharge.  It is to be pointed out that, for almost 20 years, Mr Lomey has not been in prison and for the last 4 years he has been at liberty.  Coupling those matters of history with his age, it seems to us that the risk of him now engaging in behaviour which might require his recall to prison is for breach of life licence minimal and academic.  We do not disregard the fact that Mr Lomey would now wish not to have the stigma of a life licence.  But, as is apparent from the history of this case, in the wholly unlikely event of Mr Lomey behaving in a way which requires his recall, it is inconceivable that he would not then be transferred to hospital. In any event, as we have already said, that is a minimal risk.  We are not persuaded that it would justify this Court in passing sentences of absolute discharge in relation to these grave offences which did and do not merit such an order either by the sentencing judge or by this Court.  Accordingly, despite our sympathy for Mr Lomey, this appeal must be dismissed.