Neutral Citation Number: [2011] EWCA Crim 2276
No: 2011/3757/A6 
IN THE COURT OF APPEAL
CRIMINAL DIVISION

REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 6 October 2011
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES) 

MR JUSTICE CRANSTON 

MR JUSTICE HICKINBOTTOM 

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ATTORNEY‑GENERAL'S REFERENCE NO 54 OF 2011   
 
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Mr E Brown QC appeared on behalf of the Attorney General 

Mr J Ryder QC and Mr K Molloy appeared on behalf of the Offender 
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J U D G M E N T (As Approved by the Court)
1.	THE VICE PRESIDENT:  Her Majesty's Solicitor General seeks leave to refer under section 36 of the Criminal Justice Act 1988 a hospital order with restriction order made at the Central Criminal Court upon a defendant who had been convicted of manslaughter and possession of a firearm with intent to endanger life.  The application raises not for the first time, but apparently for the first time in this case, the complex relationship between custodial sentences on the one hand and, on the other, orders under the Mental Health Act 1983 in relation to offenders who suffer from mental disorder.  We give leave.  
2.	The defendant was born on 1st January 1992.  He was a little less than a week past his 18th birthday on the night of 5th/6th January 2010 when this killing occurred.  The defendant came to the United Kingdom originally from Somalia where he was born.  He came first at the age of 11 to join his father who was already here and at that stage lived with him.  However, both father and son returned to Somalia when the defendant was 13 or thereabouts.  Approximately two years after that, and thus when he was only about 15, he came back unescorted to the United Kingdom and since then appears to have been on his own.  He may well formally have been in care after return but all the indications are that since 2008 he has either been in custody or has been living on his own resources and in particular following a life of crime as a supplier of class A drugs, working, it would appear, for others, although also having at least one subordinate ("runner") working for him.  He was removed from school almost immediately after he returned to this country following an incident which led to a sentence of 12 months detention and training order for violent disorder.  Since then he has had no education and has never been in any form of legitimate employment.  He has a number of other convictions, chiefly for possession of drugs, although also for escape from custody, for failing to comply with the licence requirements of his detention and training order and for disorder.  He appears to have been at all material times a reasonably heavy user of cannabis himself, although his accounts of the extent of his use has not always been consistent.  
3.	On 5th and 6th January 2010 this defendant was sent by one of his drug dealing superiors to seek out a rival dealer.  Arrangements were made for him to be armed with what seems fairly clearly to have been a street gun, a shotgun.  He went in search of the opposition with an associate, one of whose roles was to drive him there and away afterwards.  They successfully found their rivals, one of whom was Mahamood Jama, the man who was killed.  He too had an associate with him.  He was himself a violent man, it appears.  Certainly he was armed that evening with a knife and there had been a dispute involving some violence between him and some other parties.  
4.	The defendant hid himself in a darkened building and emerged to confront the opposition.  There was a verbal confrontation and in the course of it he fired his gun vertically upwards into the air.  There then ensued a chase in which the defendant was pursued by the deceased and his associates, eventually into a block of flats where they grappled with each other.  During that fight the gun was discharged again, killing Jama.  En route to the flats the defendant had turned, certainly once and probably twice, pointed the gun at his pursuers and threatened to shoot but had not fired.  
5.	After the struggle in the block of flats culminating in the death of Jama, the defendant ran to the car where his associate was waiting and made good his escape.  The gun was never recovered, apparently having either been destroyed or returned to whoever normally looked after it.  The result of that is that it was impossible to say whether it was a single‑barrelled gun which the defendant had reloaded or a double‑barrelled gun.  The defendant always claimed that it was double‑barrelled and that may well, it seems to us, be the truth.  The relevance of that is that if it was always a double‑barrelled loaded gun it is right to say that he could have discharged it earlier than in the course of the struggle.
6.	Thereafter the defendant took what were plainly practised steps to avoid capture, including the destruction of the SIM card in the mobile telephone that he was using at the time, and remained at large until 27th May, nearly five months later.  It is unnecessary to rehearse the investigation which was no doubt extensive and which eventually proved that he had indeed been the gunman.  
7.	He was tried on an indictment for murder.  He admitted in the face of the evidence possession of the gun but his case was that he meant only to frighten and that the killing was either lawful defence or accident in the course of the struggle.  The jury was faced with evidence of what had happened in the flats only for the defendant on the one hand and the criminal associate of the deceased on the other.  The jury acquitted of murder but convicted of manslaughter.  The basis of that could theoretically have been provocation but it was much more likely to be unlawful act manslaughter and that sensibly was the basis which the judge assumed when passing sentence.
8.	The defendant was not mentally ill at the time of this offence.  However, whilst on remand he developed a paranoid psychosis and he was transferred to Broadmoor Hospital by the Ministry of Justice in September 2010, that is about four months after his arrest and nine months after the offence.  He was ill but fit to be tried in the Crown Court and he was fit to give and did give evidence in his own defence.  However, he remained ill and he needed to be in hospital rather than in ordinary custody.  
9.	There were some differences between the psychiatrists called on either side in this case but upon the essentials of his condition they were in agreement.  The likely diagnosis is paranoid schizophrenia.  It has involved at different stages the hearing of voices, expressions of grandiosity, irrational and delusional beliefs and thought disorder.  There are also clear signs in this defendant, so the psychiatrists advise, of anti‑social trends properly labelled in a person of his age "conduct disorder" rather than yet an established personality disorder.  He is too young for that diagnosis yet to be made in the terms of ordinary medical advice.  
10.	The paranoid schizophrenia has, as is quite often the case, responded reasonably well to medication, particularly in the secure and skilled environment of Broadmoor.  The defendant needs to continue to take medication for a prolonged period; the suggestion is at least 5 years.  He is conforming with the medical regime, although there are some signs of him having wishes to reduce the dose, which would not be advisable.  The psychiatrist from Broadmoor, who was his treating superintendent, advised the judge that the defendant is likely to need something like four further years of treatment in Broadmoor and thereafter something like two years in the halfway house environment of a medium secure unit.
11.	The judge determined that but for the medical condition he would have imposed a sentence based upon the appropriate determinate term being 12 years.  However, the judge was perfectly satisfied, for extremely good reason, that the defendant was dangerous within the meaning of Part 12 Chapter 5 of the Criminal Justice Act 2003.  Accordingly, if he was to pass a conventional custodial sentence the right form of it, given the defendant's age, would have been a sentence of detention for public protection based upon a notional 12 year determinate term, thus expressed as detention for public protection (that is to say indefinitely) with a minimum term of six years, to which time in custody on remand would count.  
12.	However, Dr Church, the treating psychiatrist from Broadmoor, recommended rather a hospital order under section 37 of the Mental Health Act coupled with a restriction order under section 41.  Conversely, Dr Johns (advising the Crown) suggested that in his view the appropriate sentence was a custodial sentence, although he recognised that for the kind of time period that Dr Church had mentioned such a sentence would be served in Broadmoor or subsequently a medium secure unit.  That would be achieved, if that course were taken, by the Secretary of State directing his transfer under the provisions of section 47 of the Mental Health Act.  Accordingly, either way, the immediate plan was necessarily for the treatment which he needs and which he is receiving to continue.
13.	Faced with those two rival forms of advice, the judge in the end made a hospital order with a restriction order.  It is abundantly clear from the transcript of his very careful enquiries into this question that his primary concern in making the order that he did was to achieve continuity of treatment at Broadmoor.  He knew that if he made an order for detention for public protection, whilst there would almost certainly follow a section 47 transfer order, there would be a hiatus, during which the defendant's treatment in Broadmoor would be interrupted because the existing basis for it would have been removed by the passing of such a sentence.  How long it might be he did not know.  The judge had, if we may say so extremely sensibly, suggested at an earlier stage of the case that it would be wise for the prison authorities to have available a transfer order in advance.  Apparently there had been such an advance transfer order in existence at the time of verdict and if the conviction had been of murder then of course the defendant would have been sentenced that day to the mandatory sentence of life imprisonment and the transfer order for which the Ministry had made arrangements could have taken effect immediately.  Had that happened, he could have continued at Broadmoor without any hiatus or interruption.  Since, however, he was convicted of manslaughter the question of his sentence had to be adjourned for consideration and nobody had brought an advance transfer order to the adjourned hearing.  That was the reason why the judge was persuaded in the end that in order to avoid the hiatus he ought to make a hospital order rather than pass a sentence of detention for public protection.
14.	This very experienced judge has considerable knowledge of the Parole Board system.  He took a good deal of trouble to investigate of his own motion whether there would be a significant difference between the two possible forms of order as to the time that the defendant would be compulsorily detained.  He concluded that the time for which he would compulsorily be detained would be much the same under each of the two forms of order.  It is enough to say that he may very well have been right about that.  Under a sentence of detention for public protection with a minimum term of six years he would be compulsorily detained for about a further five years (because he had served about a year on remand).  After that he would be released as and when he was safe.  Dr Church's prediction for his likely progress if a hospital order was made assumed something like four years in Broadmoor and two years in a medium secure unit, that is to say much the same sort of period.  
15.	It was having made those investigations that the judge concluded that he should make a hospital order because that would avoid a highly regrettable disruption or hiatus in the treatment at Broadmoor which appeared to be being successful.  He rightly concluded that such a disruption was in nobody's interests.  It was not in the defendant's interests but much more importantly it was not in the public's interest that his apparent recovery should be put in jeopardy.  
16.	We admire the efforts which the judge made to achieve both the treatment of the defendant and his punishment and, crucially, safety for the public.  The difficulty however is that the enquiries made into the time of likely compulsory detention is only part of the story.  A different part of the story was not addressed at all by either side and unsurprisingly therefore not by the judge.  
17.	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.  
18.	We need not set out the law relating to that because it is common ground.  The clearest expression of it, among a number of cases, is to be found in R v Drew [2003] 1 WLR 1213, [2003] UKHL 25 in the speech of Lord Bingham at paragraph 21.  
19.	In this case we hope of course that the defendant will both recover from his illness and reform his hitherto criminal way of life.  But his discharge under the present order will be governed by recovery from illness but not reform and his liability to recall will be triggered by medical relapse but not by criminal relapse.  There exists, given the lifestyle that he was living at the time of this offence, the plainest possible risk, although we hope it does not eventuate, that he may resume a criminal lifestyle.  It is essential that there is available to the authorities the power to recall him if that were to happen.  We hope it will not, but the power simply has to be there.
20.	Mr Ryder QC on his behalf, to whom we are extremely indebted for his careful submissions, advances a number of reasons why nonetheless the order that the judge made should be maintained.  First, he contends that the best hope for the future and the greatest public interest lies in this defendant's recovery and proper treatment.  We agree.  But he is going to have the same treatment under either form of order.  Secondly, says Mr Ryder, if a detention for public protection order is made their exists the risk that he may find himself in conventional custody and that the influences that he is likely there to meet may foster the incipient conduct disorder or anti‑social personality traits which would be very much against the public interest.  We agree that those risks present a possible scenario.  We propose to do what we can to avoid any possibility that there would be an immediate hiatus during which he has to go into conventional custody.  If it is right that he can expect something like six years in medical care, then if at the end of that time he is safe he ought to be released.  But in the last resort if there exists a tension between the risk which Mr Ryder has identified on the one hand and a complete absence of control on licence on the other, we fear that the risk has to be taken in order to achieve the licence control.  Thirdly, Mr Ryder draws attention to the evidence given by Dr Church before the judge to the effect that in his experience the intensity of management which is available to psychiatrists at the time of conditional release and planned transfer to the community under the rubric of a hospital order is generally greater than that available to the Probation Service and the National Offender Management Scheme under indeterminate sentences.  We do not know but it is always possible that that is a realistic assessment.  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.  Lastly, Mr Ryder pointed out that were the defendant to be released and to commit a fresh offence it is at least likely that there would be sufficient possibility in the minds of the supervising psychiatric team that there had been a mental health relapse for there to be a recall, if only for investigation, in any event.  That may or may not be so, but they would not be able to keep him unless there had been a medical relapse.  
21.	We conclude that the decision made in this case in the most careful terms by this very experienced judge simply left out, because nobody explained it to him, the vital consideration which we have endeavoured to set out.  Once one applies one's mind to that consideration there is only one possible answer.  
22.	We ought to add this.  The differences between the two forms of order were one reason for the insertion into the Mental Health Act of section 45A.  That section gives the court the power to pass a sentence of imprisonment and rather than wait for the Ministry to make a transfer order to hospital, itself to make a direction for hospital treatment together with a limitation direction which is the equivalent of a restriction order.  That power, if available, would have met this case perfectly.  Under it, a defendant is subject to imprisonment but he goes immediately to hospital which is where he needs to be and he remains there for as long as his medical condition requires it.  However, the section enables this new form of order to be made only where the sentence is one of imprisonment.  For an offender under the age of 21 imprisonment is not available.  We are bound to say that we have not discerned any reasoned or logical distinction between offenders of 18, 19 and 20 and those of 21 and above which would suggest a deliberate decision to exclude the younger patients from its terms.  It may be that the reason why the section is couched in terms of imprisonment is that when it was drafted it was anticipated that not long in the future imprisonment would be extended to all from the age of 18 onwards, but that, as everybody knows, has not happened.  We would respectfully suggest that those who have the supervision of this legislation should at the very least consider whether there is any reason at all why patients of 18, 19 or 20 should be excluded from the public protection which an order of this kind can give.
23.	We agree with the judge that interruption to the current period of treatment at Broadmoor is highly undesirable for all the reasons which we have tried to explain.  We propose for that reason to adjourn this hearing now until Thursday 20th October, when we will return to it.  We express the hope that by then it will be possible to tell us that arrangements are in place for this man to be transferred immediately under section 47 to Broadmoor, so that if, as we anticipate, the sentence is converted into one of detention for public protection he will go straight back from this court to Broadmoor.  We do not of course control the decision about a transfer order.  We can do no more than hope, but we make it clear that the combined opinion of both psychiatrists is that without doubt it is essential that there is no interruption, however short, in this man's treatment at Broadmoor.  
24.	Lastly, the Solicitor General takes a second point that the notional determinate term of 12 years was itself unduly lenient.  It ought, he submits, to have been 15 years.  There is no basis for saying that the difference between those two figures creates a sentence which comes anywhere near the test of undue leniency applied on a reference by the Attorney General.  There is no gross error of any kind and in any event under an order for detention for public protection the notional determinate term governs only eligibility for consideration of release; it does not give an entitlement to release.  The judge was perfectly entitled to take the view that at the age that this man was 12 years was the appropriate notional determinate term.  We are unimpressed accordingly by the second ground of the application.  
25.	In those circumstances, we make no order at this stage other than to adjourn the case to be relisted before this court please for five minutes on Thursday 20th October.  There is no occasion for leading counsel to attend unless they want to.  Indeed, if there is in place an assurance of the kind which we would like to hope that there might be, there is no reason for anybody to attend if we have it in writing.  Otherwise somebody from the Crown must come please to tell us what the position is. 
26.	MR BROWN:  My Lord, the information I am in possession of now tells me at least that my Lord will not need to wait until 20th October.  Indeed later today it would be in place.  I do not know whether either way‑‑ 
27.	THE VICE PRESIDENT:  At the moment we will say that we will adjourn it until Thursday 20th unless later today we are told that we need not and again the same applies later today, if you are in a position to help at that stage or if somebody behind you is, there is no need please for leading counsel to wait.  Thank you very much both of you for your help.  
Later: 
28.	MR BROWN:  My Lord, in fact all was in place.  Nobody, as it were, in charge of these things should be criticised.  It is my fault for not knowing that was the position.  They are well aware of the case, but I am told that the transfer order under section 47 needs something to bite upon.  It needs to be transferred from something and what will happen, as I understand it, is that as soon as sentence is passed here your clerk will draw up the order, that can be faxed ultimately to the Mental Health Unit at the Ministry of Justice, the paperwork in respect of section 47 has already been completed, it is in place, they need to be satisfied that they are asking for a transfer to be made from something and the Secretary of State has agreed and indeed the medical reports are here now with us and so everything is in place but it needs something to bite upon.  We would ask the court to pass sentence with the full expectation today that he can be transferred and taken to Broadmoor and those waiting to transport him are downstairs.   
29.	THE VICE PRESIDENT:  So he will go straight back to Broadmoor. 
30.	MR BROWN:  That is the intention.  
31.	THE VICE PRESIDENT:  What is the formality, Mr Brown?  I will ask Mr Ryder in a moment, but there is time in custody which has to be specified, does it not?  Do you have the figure?  It is about a year.  We know the date of his arrest which was 27th May and sentence was passed on 15th June the following year.  ... Somebody has done the arithmetic.  Shall we say 382 days with the customary caveat that if it should turn out to be different it can be dealt with administratively.  
32.	Mr Ryder, subject to the point of principle which we have already decided, do you agree that this is the right course now.  
33.	MR RYDER:  My Lord, yes, certainly. 
34.	THE VICE PRESIDENT:  Thank you very much indeed.  
35.	For the reasons which we set out at a little length earlier this morning, we quash the sentence of hospital order and section 41 order, we substitute for it on each count concurrent a sentence of detention for public protection with a minimum term of six years less 382 days already served.  If further calculation should show that that figure is wrong by a few days the correction should be made administratively.  Is that sufficient, Mr Brown.  
36.	MR BROWN:  Yes.  
37.	THE VICE PRESIDENT:  Thank you all very much.