IA v R.

Where a mentally disordered offender qualifies for a hospital order, the court must decide whether that order is the most suitable disposal in all the circumstances. It must weigh the seriousness of the offending, criminal responsibility, public protection, the likely benefit of treatment, and the practical availability of that treatment.

The different release and recall regimes for a life prisoner and a restricted patient require appropriate weight. They do not justify an assumption that a hospital order with an indefinite restriction will necessarily provide materially less protection. A sentence imposed in the expectation of a later hospital transfer may be inappropriate where that transfer remains uncertain.

The appellant, a young man of previous good character with learning disability and autistic spectrum disorder, pleaded guilty at Derby Crown Court to rape, repeated indecent assaults on boys, and possessing offensive weapons. The sentencing judge imposed custody for life, with a recommended minimum period of six years and nine months, because of the perceived indefinite danger to children.

Medical experts unanimously recommended a hospital order with an indefinite restriction. They considered that the appellant required treatment in a secure hospital and was unlikely to benefit from prison treatment. His expected transfer from prison to hospital under the Mental Health Act 1983 had not occurred.

The appeal concerned whether custody for life or a hospital order with restrictions was the most suitable disposal, and, alternatively, the appropriate minimum period.

1. Appeal allowed. The sentences of custody for life and the concurrent sentences on the remaining counts were quashed. They were replaced by hospital orders with indefinite restriction orders under the Mental Health Act 1983.

2. A sentencing court must give appropriate weight to the differences between the release and recall regimes for a life prisoner and a restricted patient. Those differences do not establish that a hospital order necessarily offers materially less public protection: R v Drew [2003] UKHL 25. The court must instead assess the relative protection offered by each disposal in the circumstances of the individual case.

3. Under section 37(2)(b), the question was whether a hospital order was the most suitable disposal, having regard to the offence, all the circumstances, and the available alternatives. This required a balance between the grave and repeated sexual offending, the appellant’s degree of responsibility, the protection of children, his psychiatric conditions, and the prospect of effective treatment.

4. The sentencing judge’s concern for public safety was understandable, and the criteria for custody for life were satisfied. However, the judge’s expectation of an immediate hospital transfer under section 47 had not been fulfilled. A life sentence did not secure the treatment which the medical evidence showed was necessary for rehabilitation and long-term risk reduction.

5. An indefinite restricted hospital order could provide very great, and if necessary indefinite, protection for the public. The evidence also showed that the appellant’s risks were associated with conditions amenable to hospital treatment. That disposal was therefore the most suitable one.

6. Although unnecessary to the order, the court held that a life sentence would have carried a minimum period of four years from sentence. The judge should have given express credit for the guilty plea under section 152 of the Powers of Criminal Courts (Sentencing) Act 2000.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted hospital orders with indefinite restriction orders.

• Derby Crown Court: The appellant pleaded guilty and was sentenced to custody for life, with concurrent sentences on the other counts and a recommended minimum period of six years and nine months.