Beatty v R.

Where reliable fresh psychiatric evidence establishes that the conditions for a hospital order were met when sentence was passed, the Court of Appeal may admit that evidence and replace a discretionary life sentence with a hospital order and restriction order under the Mental Health Act 1983.

A transfer to hospital under sections 47 and 49 serves a different function. It is appropriate where mental disorder arises after sentence, but does not remove the need to correct an original sentencing disposal that was wrong because treatability was then incorrectly assessed.

The appellant pleaded guilty to rape, kidnapping and threats to kill. In 1991, Popplewell J imposed a discretionary life sentence because psychiatric evidence did not establish that the appellant's psychopathic disorder was treatable, although the judge stated that a hospital order would otherwise have been the most appropriate disposal.

A renewed application for leave to appeal sentence was dismissed in 1993. The appellant was later transferred to hospital and granted administrative technical lifer status. The Criminal Cases Review Commission referred the sentence after further psychiatric evidence showed that his disorder had been treatable at the date of sentence.

The central issue was whether the fresh evidence should be admitted and whether the life sentence should be replaced by a hospital order with a restriction order.

1. Appeal against sentence allowed. The court admitted the fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. It was credible, admissible, capable of affording a ground for allowing the appeal, and there was a reasonable explanation for its absence at sentence. Its admission was necessary or expedient in the interests of justice.

2. The evidence overwhelmingly established that the appellant's psychopathic disorder was treatable in 1991. If Popplewell J had had that evidence, he would inevitably have made a hospital order with a restriction order under sections 37 and 41 of the Mental Health Act 1983. He had declined to do so solely because the evidence then available did not establish treatability.

3. The court followed the distinction recognised in Mitchell, Hutchinson and De Silva. Where the statutory conditions existed at sentence, a hospital disposal should be made even if the evidence proving those conditions emerges later. That differs from a prisoner whose mental illness or disorder develops after sentence, for whom transfer under sections 47 and 49 is the appropriate course: Castro.

4. Section 11(3) of the Criminal Appeal Act 1968 empowered the court to quash the life sentence and make the order which the sentencing court could originally have made. The administrative grant of technical-lifer status reinforced the conclusion, but could not displace the need to correct the sentencing error.

5. The court stressed that fresh psychiatric evidence directed to the offender's mental state at sentence must always be scrutinised carefully. Each case turns on its own facts. The life sentence was quashed and replaced by a hospital order with a restriction order under sections 37 and 41.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court allowed the appeal against sentence and substituted a hospital order with a restriction order for the life sentence.
• Full Court of the Court of Appeal: On 30 April 1993, the court dismissed the appellant's renewed application for leave to appeal sentence because the statutory preconditions for a hospital order were not then established.
• Crown Court at Birmingham: On 15 March 1991, Popplewell J imposed a discretionary life sentence after the psychiatric evidence did not establish treatability for a hospital order.