Hughes, R. v

Where credible fresh psychiatric evidence establishes that a defendant was suffering from mental illness when sentenced, and the conditions for a hospital order were then met, the proper disposal is a hospital order rather than a discretionary life sentence. This remains so where the evidence establishing the condition emerges only after the life sentence was imposed.

The position differs where mental illness first supervenes after sentence. In that situation, transfer to hospital under section 47 of the Mental Health Act 1983 is the appropriate course.

The applicant had pleaded guilty at Preston Crown Court to two offences of arson, being reckless as to whether life was endangered. He received concurrent five-year sentences, together with a further term for an outstanding sentence.

Following an Attorney General’s reference, the Court of Appeal replaced that disposal with a discretionary life sentence and a minimum term: [2003] EWCA Crim 683. At that stage, the psychiatric evidence did not support a hospital order.

After transfer to Ashworth Hospital, fresh psychiatric evidence diagnosed paranoid schizophrenia and concluded that the illness had been present when the offences were committed. The Crown did not challenge that conclusion. The central issue was whether the new evidence required the life sentence to be replaced by a hospital order with restrictions.

1. The court extended time, granted leave to appeal and admitted the fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. The evidence was capable of belief and had not been available either at the original sentencing hearing or when the Attorney General’s reference was determined.

2. The unchallenged evidence of the treating psychiatrists established that the applicant had paranoid schizophrenia at the time of the offences. The court therefore treated this as a case in which the relevant mental illness existed at sentence, rather than one in which illness had developed only later.

3. The court followed the principle in R v Beatty [2006] EWCA Crim 2359. Where the conditions for a hospital order were met at the time of sentence, a hospital order should be imposed instead of a discretionary life sentence, even if the information establishing those conditions emerges later. The court regarded that principle as powerful and applicable here.

4. A hospital order under section 37 of the Mental Health Act 1983, coupled with an unrestricted restriction order under section 41, was more suitable than imprisonment. It would secure continuing forensic psychiatric care in an appropriate secure setting until discharge could safely be considered.

5. The appeal was allowed. The life sentence was quashed and replaced with a hospital order specifying Ashworth Hospital, together with a section 41 restriction order without limit of time.

• Court of Appeal (Criminal Division): Allowed the renewed appeal, quashed the life sentence and substituted a hospital order under sections 37 and 41 of the Mental Health Act 1983.
• Court of Appeal (Criminal Division): In a preliminary jurisdiction ruling, held that the applicant retained a right to appeal against sentence notwithstanding the earlier Attorney General’s reference: [2009] EWCA Crim 841.
• Court of Appeal (Criminal Division): On an Attorney General’s reference, quashed the original determinate sentence and imposed life imprisonment with a minimum term: [2003] EWCA Crim 683.
• Crown Court at Preston: On 14 October 2002, imposed concurrent five-year sentences for arson and activated twelve months of an outstanding sentence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.