Staines, R v

A discretionary life sentence combined with a hospital and limitation direction under section 45A of the Mental Health Act 1983 may properly be imposed on an offender suffering from psychopathic disorder, even where mental illness also coexists. Mental illness does not itself make imprisonment wrong in principle where the offender is fit to plead and remains criminally responsible.

An appellate court will not substitute a hospital order merely because later clinical evidence shows treatment progress or a later diagnosis. The evidence must show that the original disposal was wrong. A section 45A hybrid disposal can secure hospital treatment while preserving a greater measure of public protection through the life-sentence regime.

The appellant pleaded guilty at Lewes Crown Court to manslaughter by reason of diminished responsibility after killing a man whom she had previously assaulted. The sentencing judge found that she suffered from psychopathic disorder, required treatment in hospital, and posed a serious danger to the public.

In December 2000 the judge imposed a discretionary life sentence, with a hospital direction and limitation direction under section 45A of the Mental Health Act 1983. He preferred that hybrid disposal to a hospital and restriction order under sections 37 and 41 because it retained the possibility of return to prison if treatment proved ineffective.

Several years later, after a Mental Health Review Tribunal had recognised coexisting mental illness, the appellant appealed out of time. She sought substitution of a hospital and restriction order. The central issue was whether later psychiatric evidence made the original life sentence and hybrid order wrong.

1. Appeal dismissed. The sentencing judge had carefully considered the contemporaneous psychiatric evidence. That evidence did not establish that the appellant had mental illness at the time of the offence. The later evidence did not provide a reliable basis for concluding that her culpability had been lower than the judge found.

2. Under section 2 of the Homicide Act 1957, diminished responsibility requires substantial impairment, but the later diagnosis did not supply a basis for measuring any further reduction in responsibility. Coexisting mental illness and personality disorder do not necessarily entail less mental responsibility than personality disorder alone.

3. The court accepted that it had jurisdiction under section 11(3) of the Criminal Appeal Act 1968 to consider the later material. However, it rejected the suggested premise that a prison sentence is necessarily inappropriate for a mentally ill offender who is fit to plead and criminally responsible. That conclusion followed the principles in R v. Drew [2003] 2 Crim.App.R 371.

4. Section 45A of the Mental Health Act 1983 applies to a person suffering from psychopathic disorder. Its terms do not exclude an offender who also suffers from mental illness. A hybrid order is therefore not wrong in principle merely because the offender has both conditions.

5. The appellant's subsequent engagement in treatment did not show that the judge's concern about public protection had been misplaced. Nor had it been shown that the possibility of return to prison materially impeded treatment. The life-sentence regime allowed release and recall to be determined by public risk as well as medical considerations, and thus provided control unavailable under a restricted hospital order alone.

6. The court added, obiter, that the power in section 45A(10) to extend the hybrid regime to other descriptions of mental disorder should be reconsidered.

• Court of Appeal (Criminal Division). In [2006] EWCA Crim 15, the court dismissed the appeal against sentence and left the discretionary life sentence and section 45A directions in force.
• Lewes Crown Court. On 12 December 2000, following a guilty plea to manslaughter by reason of diminished responsibility, the court imposed a discretionary life sentence with a hospital direction and limitation direction under the Mental Health Act 1983.