L, R v

Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal must consider the statutory factors when asked to receive fresh evidence, but they are not exhaustive. The overriding consideration is the interests of justice. Fresh psychiatric evidence may be admitted where it is reliable, could affect sentence, and was not obtained earlier because the offender’s mental illness prevented full disclosure of symptoms.

Where the evidence establishes that the conditions for a hospital order under section 37 of the Mental Health Act 1983 were satisfied at the relevant time, the court may quash a custodial sentence and substitute a hospital order.

The applicant pleaded guilty at Liverpool Crown Court to robbery and received four and a half years’ imprisonment. The sentencing judge had psychiatric evidence which identified mental illness but did not support hospital detention.

After a serious suicide attempt, the applicant underwent further psychiatric assessment. Two psychiatrists concluded that he had paranoid schizophrenia, was psychotic when he committed the offence, and had withheld symptoms during the first assessment because of his illness. A hospital bed was available and treatment was expected to reduce any risk of further offending.

The application, brought out of time after refusal by the single judge, raised whether the fresh evidence should be admitted and whether the sentence should be replaced by a hospital order.

1. The application for an extension of time and leave to appeal was granted, and the appeal against sentence was allowed. The court quashed the sentence of imprisonment and substituted a hospital order under section 37 of the Mental Health Act 1983.
2. Section 23 of the Criminal Appeal Act 1968 governed the admission of the further psychiatric evidence. The factors in section 23(2) were not exhaustive; the overriding consideration was the interests of justice. The reports were reliable and could provide a ground for allowing the appeal. The applicant had a reasonable explanation for failing to disclose his symptoms earlier, because that failure resulted from the mental illness from which he was then suffering.
3. The court rejected the suggestion that the applicant had invented his account to obtain earlier liberty. The detailed assessments, his extraordinary and out-of-character conduct, and the consistency of the medical evidence supported its reliability.
4. The new reports were powerful evidence which would probably have caused the sentencing judge to reconsider the original sentence. They established that, at the relevant time, the applicant had paranoid schizophrenia, that hospital treatment could alleviate the illness, and that the conditions for a section 37 hospital order were met. The exceptional circumstances therefore required intervention in the interests of justice.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted out of time and the appeal was allowed: [2003] EWCA Crim 382.
• Crown Court at Liverpool: On 9 November 2001, following a guilty plea to robbery, the applicant was sentenced to four and a half years’ imprisonment.