John (Aka John Dennis) Lomey (Aka Andrews), R v

The Court of Appeal’s power to substitute a sentence or order under section 11(3) of the Criminal Appeal Act 1968 remains subject to the statutory conditions governing a hospital order and restriction order. Such orders cannot be made where no hospital bed is available and the offender does not currently have a mental disorder of a nature or degree making hospital detention appropriate. An absolute discharge is not justified solely to remove the remote and academic risk of recall under a life licence. The gravity of the offences and the limited practical risk of recall remained material to the exercise of the court’s sentencing discretion.

In 1984, the appellant pleaded guilty at the Central Criminal Court to aggravated burglary, assaults, causing grievous bodily harm with intent, criminal damage, and breach of suspended sentences. He received life imprisonment for the grievous bodily harm offence, with concurrent sentences on the remaining counts.

Later medical evidence established that he had paranoid schizophrenia at the time of the offences and sentence. He was transferred to hospital in 1985 and, by 2000, had been released on life licence into supervised care. The Criminal Cases Review Commission referred the sentence appeal under section 9 of the Criminal Appeal Act 1995. The appellant sought either a hospital and restriction order under the Mental Health Act 1983 or an absolute discharge.

1. Appeal dismissed. The Court could not substitute a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983.
2. The Court accepted that section 11(3) of the Criminal Appeal Act 1968 empowered it to pass an appropriate sentence or make an order which the sentencing court could have made. That general appellate power did not displace the statutory limits on mental-health disposals. The requested orders required conditions which were not met at the time of the appeal. No hospital bed was available and, more importantly, it was common ground that the appellant no longer had a mental disorder of a nature or degree requiring hospital treatment or detention.
3. The Court also rejected the alternative of an absolute discharge. It recognised the appellant’s concern about the continuing stigma and theoretical risk of recall under his life licence. However, he had not been imprisoned for almost 20 years and had lived in the community for four years under supervision. Given his age and progress, recall for breach of the licence was minimal and academic. If recall became necessary, transfer to hospital would be inconceivable to avoid. That limited risk did not justify absolute discharges for grave offences which did not merit that disposal either at sentence or on appeal.

• Court of Appeal (Criminal Division) — On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, dismissed the appeal against sentence: [2004] EWCA Crim 3014.
• Full Court — On 11 December 1984, refused the renewed application for leave to appeal against sentence.
• Single Judge — On 23 September 1984, refused leave to appeal against sentence.
• Central Criminal Court — On 13 June 1984, imposed life imprisonment following guilty pleas entered on 8 May 1984.