Welsh v R.

A discretionary life sentence remains available for manslaughter by reason of diminished responsibility, but will be rare. It is appropriate only in a particularly grave case where the offender’s responsibility, though diminished, remains substantial.

When choosing between life imprisonment and a hospital order with restrictions, the court must assess residual culpability, public protection and the gravity of the offence. The differing release regimes are material: a restricted patient may cease to meet the medical conditions for detention while still presenting a danger to the public.

The appellant pleaded guilty at the Central Criminal Court to manslaughter by reason of diminished responsibility after fatally stabbing the victim. He had schizophrenia and had previously been unfit to plead. Psychiatric evidence supported a hospital order with restrictions, but the Common Serjeant imposed life imprisonment with a minimum term of 12 years.

The appellant appealed on the basis that secure hospital treatment would better manage his illness and protect the public. The central issue was whether a hospital order under the Mental Health Act 1983, with a restriction requirement, was more appropriate than a discretionary life sentence.

1. Appeal dismissed. The Common Serjeant was entitled to impose discretionary life imprisonment rather than a hospital order with restrictions.

2. The court applied the principle stated in R v Wood [2009] EWCA Crim 651. Diminished responsibility does not prevent a life sentence. Such a sentence will be rare, but may be justified in a particularly grave case where the offender retains substantial responsibility.

3. Assessing responsibility in a person with paranoid schizophrenia is difficult. Rational conduct after a psychotically motivated killing did not reliably indicate the appellant’s responsibility at the time of the killing. However, his substantial history of violence before the onset of schizophrenia and his decision to return to the party armed with a knife provided a sound factual basis for finding substantial residual responsibility.

4. The death’s gravity did not itself determine the choice of disposal. The court nevertheless had to protect the public and maintain public confidence by selecting the disposal that best protected the public while reflecting the offence’s gravity.

5. The court contrasted the release test for a life prisoner under the Crime (Sentences) Act 1997 with the medical criteria governing discharge from hospital detention under the Mental Health Act 1983. Applying the concern identified in R v Drew [2003] 1 WLR 1213, it held that a patient may remain dangerous even after the medical conditions justifying detention are no longer met.

6. Given the appellant’s propensity for violence, the extreme seriousness of the offence and the continuing danger he might pose even if treatment improved his condition, a hospital order with restrictions would not sufficiently maintain public confidence. The life sentence therefore stood.

• Court of Appeal (Criminal Division): Dismissed the appeal against the discretionary life sentence.
• Central Criminal Court: The appellant pleaded guilty to manslaughter by reason of diminished responsibility on 28 January 2010. The Common Serjeant imposed life imprisonment with a minimum term of 12 years on 16 March 2010.