K v Harrow Crown Court

An appeal court must identify a statutory basis for jurisdiction. An appeal against sentence following a magistrates’ court committal to the Crown Court is available only within the cases specified by section 10 of the Criminal Appeal Act 1968. A hospital order under section 37 of the Mental Health Act 1983 is not a sentence of imprisonment or detention for six months or more.

Where sharply conflicting psychiatric evidence is material to a hospital order, the sentencing judge must recognise the conflict and explain why particular evidence is accepted. An order cannot stand where the evidence does not justify detention for treatment.

The applicant pleaded guilty in the magistrates’ court to assault occasioning actual bodily harm. He was committed to the Crown Court for sentence and made subject to a hospital order under section 37 of the Mental Health Act 1983.

He initially sought to appeal against sentence. At the hearing, the court identified that the statutory appeal jurisdiction was unavailable. It reconstituted itself as a Divisional Court and treated the matter as an application for judicial review.

The central issue was whether the Crown Court had been entitled to make the hospital order despite substantially conflicting psychiatric evidence about whether the applicant suffered from a mental illness requiring hospital detention.

1. The court held that it had no jurisdiction to hear a conventional appeal against sentence. Section 9 of the Criminal Appeal Act 1968 concerned sentences following conviction on indictment. Although the proceedings fell within section 10(2)(a), the hospital order did not constitute imprisonment or detention in a young offender institution for six months or more under section 10(3)(a). Nor did section 10(3)(b) apply, because the magistrates’ court had power to make a section 37 order.

2. The court therefore proceeded as a Divisional Court on a deemed application for judicial review. Scott Baker J held that the Crown Court judge had misstated the medical evidence by treating all doctors as agreeing that the applicant was mentally ill. In fact, two oral experts and a written report did not support that conclusion.

3. Where expert evidence is sharply opposed and is material to a hospital order, the judge must accurately assess the disagreement and explain why one body of evidence is accepted over another. The failure to do so was an error of approach.

4. On reconsidering the evidence, the court preferred the evidence of Dr McClintock and Dr Barrett. It held that the evidence of mental illness was insufficient to justify an order under section 37 of the Mental Health Act 1983. Psychiatric experts may consider the whole picture, including hearsay material, but must assess its reliability and weight. The court also endorsed the view that, ordinarily, an expert should not conduct an investigation by obtaining the victim’s account without the patient being able to answer it.

5. The section 37 order was quashed. Acting by judicial review, the court had no power to impose a substitute penalty. It indicated that a two-year conditional discharge would have been appropriate and remitted the case to the Crown Court for sentence. Astill J agreed.

• High Court, Queen’s Bench Division, Divisional Court: The court reconstituted itself to determine a deemed judicial-review application, quashed the hospital order, and directed that the case be remitted to the Crown Court. The hearing had begun as a proposed sentence appeal under [2003] EWCA Crim 1052.
• Crown Court: On 11 December 2002, the judge made a hospital order under section 37 of the Mental Health Act 1983.
• Magistrates’ Court: The applicant pleaded guilty to assault occasioning actual bodily harm and was committed to the Crown Court for sentence.