Cooper, R. v

A hybrid hospital and prison disposal under Mental Health Act 1983 section 45A may be appropriate where a mentally disordered offender requires hospital treatment but retains a significant degree of responsibility for grave offending. Substantial diminution of responsibility does not necessarily extinguish significant responsibility.

The sentencing court may also give weight to the continuing danger to the public and to the additional protection available through the parole and recall regime. On a sentence appeal, the Court of Appeal will not interfere with a careful assessment of psychiatric evidence and responsibility unless a principled basis for doing so is shown.

The appellant pleaded guilty at Preston Crown Court to manslaughter by reason of diminished responsibility for the killing of his former partner, and to the attempted murder of his stepfather. The offences were committed while he suffered from a severe psychotic disorder, diagnosed as paranoid schizophrenia.

Nicol J imposed sentences of imprisonment for public protection with minimum terms of six years and four and a half years respectively. He made hybrid hospital and restriction orders under section 45A of the Mental Health Act 1983. The appellant appealed against sentence by leave of the single judge.

The central issue was whether the judge had been wrong to find that, despite the appellant’s illness, he retained a significant degree of responsibility and that the hybrid disposal was justified for public protection.

1. Appeal dismissed. The sentencing judge was entitled to impose imprisonment for public protection and hybrid hospital orders under section 45A of the Mental Health Act 1983.

2. The hybrid disposal was designed for offenders who need immediate hospital treatment but whose offending also calls for a custodial sentence. It is not confined to cases in which the mental condition is uncertain. A significant degree of responsibility may remain even though mental disorder has substantially diminished responsibility for the offence.

3. The court rejected the contention that the prospect of later transfer from hospital to prison made the order inappropriate. Transfer arrangements under section 47, the Parole Board’s role following a Mental Health Review Tribunal recommendation, and the possibility of recall under a life licence provided protection and did not establish an unrealistic therapeutic risk. The procedure was described by reference to Staines [2006] EWCA Crim 15.

4. Nicol J had carefully assessed the psychiatric evidence. He was entitled to find that the appellant’s responsibility was not wholly extinguished, including because he had regained some control before the attempted murder. He was also entitled to find that the appellant posed a very significant and indefinite risk of serious public violence. There was therefore no error of principle or basis for appellate intervention.

• Court of Appeal (Criminal Division): appeal against sentence dismissed in [2010] EWCA Crim 2335.
• Crown Court at Preston: Nicol J imposed sentences of imprisonment for public protection and made hospital and restriction orders under section 45A of the Mental Health Act 1983.