Attorney General's Reference No 54 of 2011

Where a mentally disordered offender presents a serious risk of further crime that is not confined to mental illness, a Mental Health Act 1983 hospital order with a restriction order does not provide equivalent public protection to detention for public protection. Hospital discharge and recall depend on danger arising from medical disorder. Detention for public protection permits licence conditions and recall for the wider risk of criminal relapse. Treatment needs do not justify choosing the hospital regime where that essential control would be lost, particularly where transfer to hospital can preserve continuity of treatment.

The Solicitor General referred as unduly lenient a hospital order and restriction order imposed at the Central Criminal Court after the offender was convicted of manslaughter and possession of a firearm with intent to endanger life.

The offender was not mentally ill when he committed the offences, but developed paranoid schizophrenia on remand and required treatment at Broadmoor. The sentencing judge found him dangerous and considered that detention for public protection, based on a notional determinate term of 12 years and a six-year minimum term, would otherwise have been appropriate. The judge instead made a hospital order under the Mental Health Act 1983 to avoid interrupting treatment.

The central issue was whether that disposal adequately protected the public from a risk of future criminal conduct unrelated to mental relapse.

1. The court allowed the reference. It quashed the hospital order and restriction order and substituted, concurrently on each count, detention for public protection with a minimum term of six years less 382 days already served. Arrangements were in place for an immediate transfer to Broadmoor under section 47 of the Mental Health Act 1983.

2. The sentencing judge had properly sought both continuity of psychiatric treatment and public safety. The error was that the comparison of likely periods of compulsory detention did not address the decisive difference between the two regimes.

3. Under detention for public protection, release depends on whether the offender remains dangerous for any reason, including a risk of further crime. Licence conditions may control association with criminals, and recall is available for criminal relapse. Under a hospital order with a restriction order, discharge and recall depend on danger arising from the offender’s mental condition. The court treated R v Drew [2003] UKHL 25 as the clearest expression of that distinction.

4. The offender’s previous criminal lifestyle created a plain risk that he might resume crime despite recovery from psychosis. A hospital order could not supply the necessary licence control and power of recall. The availability of immediate hospital transfer meant that the essential treatment could continue without the otherwise feared interruption.

5. The court observed that section 45A of the Mental Health Act 1983 would have combined immediate hospital treatment with a custodial sentence, but was unavailable because it applied only where imprisonment could be imposed and the offender was under 21. It invited consideration of that statutory gap. The separate complaint that the 12-year notional determinate term should have been 15 years failed: there was no gross error, and the term governed eligibility for release consideration rather than entitlement to release.

• Court of Appeal (Criminal Division) On a reference under section 36 of the Criminal Justice Act 1988, the court quashed the hospital order and restriction order and substituted concurrent detention for public protection.

• Central Criminal Court Following convictions for manslaughter and possession of a firearm with intent to endanger life, the court made a hospital order under section 37 with a restriction order under section 41 of the Mental Health Act 1983.