Rogerson, R v

A sentencing court may lawfully impose a custodial sentence on the same occasion as a hospital order with an unlimited restriction order. However, the court should not make orders which cannot operate together in practice. Since a custodial sentence takes effect on the day it is passed, it is practically inconsistent with an order requiring the defendant’s immediate transfer to hospital. In that situation, the custodial terms may be quashed and no separate penalty imposed for the relevant offences, while ancillary driving disqualification and testing orders may remain in force.

The appellant pleaded guilty to manslaughter and to motoring offences. At Preston Crown Court, Morland J made a hospital order under Mental Health Act 1983, section 37, with an unlimited restriction order under section 41 for the manslaughter. He also imposed concurrent terms of detention in a young offender institution for dangerous driving and driving with excess alcohol, together with driving disqualification and an extended driving test requirement.

The appellant appealed against sentence. The issue was whether the custodial sentences should stand when the hospital order required his immediate transfer to hospital.

1. Appeal allowed. The concurrent custodial sentences for dangerous driving and driving with excess alcohol were quashed. No separate penalty was imposed for those offences.
2. It had been lawful for the judge to impose sentences of detention on the same occasion as a hospital order under section 37 of the Mental Health Act 1983, with a restriction order under section 41. Lawfulness did not resolve the practical incompatibility between the orders.
3. A custodial sentence takes effect on the day it is passed. It was therefore impracticable to give effect simultaneously to the custodial sentences and to the order requiring the appellant’s immediate transfer to a mental hospital.
4. The driving disqualification and extended driving test orders remained in force. No defence costs order was made.

• Court of Appeal (Criminal Division): allowed the appeal against sentence and quashed the custodial terms imposed by Preston Crown Court.
• Preston Crown Court: Morland J made a hospital order under sections 37 and 41 of the Mental Health Act 1983, and imposed concurrent custodial terms for motoring offences.
• Lancaster Magistrates’ Court: following guilty pleas, committed the appellant to the Crown Court for sentence under sections 3 and 6 of the Powers of Criminal Courts (Sentencing) Act 2000.