R, R v

A Hospital Order under section 37 of the Mental Health Act 1983 is not appropriate unless the offender’s mental disorder is of a nature or degree warranting hospital detention and that disposal is the most suitable method of dealing with the case.

Where expert psychiatric evidence conflicts, the sentencing judge must resolve the conflict on the evidence and all the circumstances. An appellate court will not interfere with that evaluative conclusion merely because a different expert view was available, particularly where the judge heard the experts give evidence and gave fair and careful reasons.

The appellant pleaded guilty at the Crown Court at Inner London to rape and attempted kidnapping. He received life imprisonment, with a minimum term of seven years before parole consideration.

He appealed by leave of the single judge. The sole issue was whether the sentencing judge should instead have made a Hospital Order under section 37 of the Mental Health Act 1983, with an unrestricted restriction order under section 41.

The psychiatrists disagreed. Dr Sarkar considered that the appellant had paranoid schizophrenia and recommended hospital disposal. Dr Browne considered that the appellant was not psychotic and was probably feigning aspects of his presentation. The sentencing judge preferred Dr Browne’s evidence and found hospital detention inappropriate.

1. Appeal dismissed. The sentencing judge was entitled to impose life imprisonment rather than a Hospital Order.

2. The judge had found that the appellant posed a serious and enduring danger to the public, particularly young women. The available disposals were therefore life imprisonment or a Hospital Order with restrictions without limit of time.

3. The judge was entitled to prefer Dr Browne’s evidence. On that evidence, the appellant’s mental disorder was not of a nature or degree making hospital detention appropriate under section 37(a)(i) of the Mental Health Act 1983. Nor was a Hospital Order the most suitable disposal under section 37(b).

4. R v Howell 7 Cr App R(S) 360 did not govern the case. Its guidance concerned unanimous medical opinion and an available secure hospital bed. Here the medical evidence was not unanimous, so it was for the sentencing judge to resolve the disagreement in light of the evidence and all the circumstances.

5. The Court of Appeal found no reason in the evidence transcripts or sentencing remarks to depart from the judge’s careful and fair conclusions. It also noted that, if psychiatric treatment became necessary during imprisonment, transfer to hospital was available under section 48 of the Mental Health Act 1983. The life sentence and seven-year minimum term therefore remained appropriate.

• Court of Appeal (Criminal Division) — dismissed the appeal against sentence: [2005] EWCA Crim 392.
• Crown Court at Inner London — on 22 July 2004, imposed life imprisonment for rape and attempted kidnapping, with a seven-year minimum term before parole consideration.