K, R v

A defendant who meets the statutory conditions for a hospital order under the Mental Health Act 1983 is not presumptively entitled to one. The decision remains discretionary. Psychiatric welfare is important, but it may yield to the seriousness and scale of the offending, the offender’s culpability, parity with co-offenders, and the need for a sentence which reflects public justice.

When fixing a custodial term, the court must nevertheless take account of an accepted basis of plea, the particular burden that imprisonment imposes on a mentally ill offender, and material delay before sentence.

The appellant pleaded guilty to conspiracy to defraud arising from an organised bank-account and cheque fraud which obtained about £800,000. The Crown placed him at a senior operational level. His accepted basis of plea limited his knowledge of the fraud’s full extent.

At the Crown Court, the judge declined to make a hospital order despite psychiatric evidence of paranoid schizophrenia. He imposed five years’ imprisonment and recommended deportation. The appellant appealed against sentence.

The central issues were whether his illness required a hospital order under the Mental Health Act 1983, whether the custodial term was excessive, and whether the deportation recommendation should remain.

1. Appeal allowed. The five-year sentence was reduced to three years and six months’ imprisonment. The recommendation for deportation was quashed.

2. The decision whether to make a hospital order under section 37 of the Mental Health Act 1983 was discretionary. There was no presumption that an order must be made merely because the conditions in section 37(2) were met. The offender’s psychiatric needs were important but were not overriding.

3. The judge had been entitled to conclude that a hospital order would not do justice in this case. The appellant had played a major part in a serious, sustained and organised fraud. His co-conspirators had received substantial prison sentences. His illness had not prevented his participation in the offending. A response to treatment could also have led to his discharge from hospital within months, without a custodial sentence reflecting the gravity of the crime.

4. The risk that a return to prison after treatment might trigger relapse did not make imprisonment inappropriate. That risk was not certain, and relapse could be addressed by a further hospital referral under section 47. The court approved the general approach illustrated by Nafei [2005] 2 Cr.App.R (S) 24: serious offending may justify custody despite schizophrenia and evidence that treatment may be easier under a hospital order. This was not confined to drug offences.

5. However, the sentence was excessive. The description of the appellant as centrally involved sat uneasily with the accepted basis of plea. Imprisonment would be more onerous for him because of his condition, and the medical investigations had caused him a difficult delay before sentence. Taken together, those matters justified a reduction to three years and six months.

6. Although the court doubted whether the earlier quashing of co-defendants’ deportation recommendations had been correct in principle, it would have been unfair to leave the appellant subject to such a recommendation when theirs had been quashed. His recommendation was therefore quashed.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 770, allowed the appeal, reduced the custodial sentence from five years to three years and six months, and quashed the deportation recommendation.

• Crown Court: On 20 May 2005, the Middlesex Guildhall Crown Court imposed five years’ imprisonment for conspiracy to defraud and recommended deportation after declining to make a hospital order.