N, R v

A hospital order under section 37 of the Mental Health Act 1983 remains discretionary once its statutory conditions are met. The absence of a causal connection between mental illness and offending does not automatically preclude such an order. However, where an offender knowingly undertakes a serious drug importation, that absence is highly significant. The sentencing court must give substantial weight to punishment and deterrence, which ordinarily focus attention on the offence rather than personal mitigation. A causal connection does not itself make a hospital order the usual outcome. Each case turns on its circumstances, including the availability of treatment in custody and hospital-transfer powers.

The appellant pleaded guilty at Canterbury Crown Court to knowingly being concerned in the fraudulent evasion of the prohibition on importing cocaine. He had brought about 30 kilograms of cocaine into the United Kingdom. Psychiatric evidence established a severe and enduring psychotic illness, and recommended a hospital order under section 37 of the Mental Health Act 1983.

The sentencing judge found that the illness had no causal connection with the offending. He imposed 12 years’ imprisonment rather than a hospital order. The appellant appealed against both the refusal of a hospital order and the length of the sentence. The central issue was whether the judge had erred in exercising the section 37 discretion in a serious drug-importation case.

1. Appeal dismissed. The sentencing judge had properly declined to make a hospital order and the 12-year sentence was not excessive.

2. Section 37 of the Mental Health Act 1983 confers a discretion where its statutory preconditions are met. The court accepted that the absence of a causal connection between mental illness and the offence does not invariably prevent a hospital order. McBride (unreported) 13 January 1972 supported that proposition.

3. That general proposition did not determine this case. The appellant knowingly imported a very large quantity of class A drugs and knew that his conduct was wrong. In serious drug-importation sentencing, punishment and deterrence require the court ordinarily to focus principally on the offence. Personal circumstances generally carry limited weight. Although a hospital order could not be ruled out in every such case, the absence of a causal connection made it difficult to envisage circumstances in which it would properly be made here.

4. The court distinguished Howell (1985) 7 Cr.App.R (S) 360, Mbatha (1985) 7 Cr.App.R (S) 373, Fairhurst [1996] 1 Cr.App.R (S) 242 and Birch (1989) 11 Cr.App.R (S) 202. Those authorities involved a causal connection between the illness and offending, and also restriction orders under section 41.

5. The availability of psychiatric treatment in prison and transfer powers under sections 47 and 49 was relevant. The court also considered the prospect that a section 37 order could lead to an early release followed by non-compliance with treatment and relapse. No restriction order had been recommended or sought.

6. Given the quantity of cocaine, the appellant’s knowing participation, and the mitigation already fully reflected by the judge, 12 years’ imprisonment was within the proper sentencing discretion.

• Court of Appeal (Criminal Division) Dismissed the appeal against the refusal of a hospital order and against the 12-year custodial sentence.
• Crown Court at Canterbury On 16 January 2004, sentenced the appellant to 12 years’ imprisonment after a guilty plea to fraudulent evasion of the prohibition on importing a class A drug.