Hempston, R v

Where the medical conditions for a hospital order are met, the court must still decide whether it is the most suitable disposal under section 37(2)(b) of the Mental Health Act 1983. That requires an evaluative assessment of all the circumstances, including culpability, the contribution of mental illness, the gravity of the offending, public protection and the available alternatives.

A life sentence may lawfully be imposed on a mentally disordered but criminally responsible offender. It does not follow that imprisonment is preferable where a hospital order and an unrestricted-time restriction order will adequately protect the public and better reflect the offender’s mental condition.

The appellant had pleaded guilty at the Central Criminal Court in 1978 to rape, attempting to render a person incapable of resistance, and associated assaults and burglary. He received concurrent life sentences for rape and the section 21 offence. His original attempt to appeal against sentence failed in 1980 and 1981.

Following a reference by the Criminal Cases Review Commission, the court admitted fresh psychiatric evidence. It showed that the appellant had paranoid schizophrenia at the time of the offences and had subsequently spent many years in secure hospitals. The formal conditions for a hospital order and a restriction order were agreed. The central issue was whether, on the totality of the evidence, a hospital order with restrictions was the most suitable disposal rather than life imprisonment.

1. Appeal allowed. The court substituted for the life sentences a hospital order under section 37 of the Mental Health Act 1983, coupled with a restriction order without limit of time under section 41.

2. The issue was not whether the sentencing judge had erred on the psychiatric material then available. On the fresh evidence and the appellant’s subsequent psychiatric history, the court had to decide what order should properly have been made in 1978.

3. The formal medical conditions were satisfied. The appellant had paranoid schizophrenia, two or more registered medical practitioners supported hospital treatment, suitable accommodation was available, and a restriction order was necessary because of the serious risk of further offending if released.

4. R v Drew [2003] UKHL 25 confirmed that a mentally disordered offender who remains criminally responsible may lawfully receive imprisonment. The court explained, however, that this did not displace the statutory evaluative task. The court had to weigh all the circumstances in deciding whether hospital treatment with restrictions or custody was the more suitable disposal.

5. The appellant’s offending was grave and his personality, attitudes to women and alcohol were relevant. Nevertheless, the fresh medical evidence established that his mental illness was present at the time and was the predominant contributing factor. A hospital order with an unrestricted-time restriction order would adequately protect the public, including women at risk from him. It was therefore the most suitable disposal.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal and substituted a hospital order under the Mental Health Act 1983 with a restriction order without limit of time.

• Court of Appeal (Criminal Division): The Full Court refused the appellant’s renewed application for an extension of time to seek leave to appeal against sentence on 22 January 1981, after the Single Judge had refused it on 9 October 1980.

• Central Criminal Court: On 2 October 1978, following guilty pleas, the appellant received concurrent life sentences for rape and the section 21 offence, with concurrent sentences for the remaining offences.