Ahmed v R

An appeal against sentence must be determined by reference to the offender’s condition at the time of sentence. A later mental illness does not, without proof that the original psychiatric assessment was materially flawed, make the sentence wrong in principle or manifestly excessive.

For a hospital order under Mental Health Act 1983, the appellant must establish that, at sentencing, a mental disorder of the required nature or degree made hospital detention for medical treatment appropriate. A later deterioration may instead be addressed through the statutory transfer-to-hospital mechanism.

The appellant pleaded guilty at Luton Crown Court to wounding with intent. On 9 February 2007, the judge imposed detention for public protection with a minimum term of five years. The psychiatric evidence then available did not support detention in hospital.

With an extension of time and leave from the single judge, the appellant appealed against sentence. He relied on later psychiatric evidence diagnosing paranoid schizophrenia and contended that the sentencing judge should have made a hospital and restriction order under sections 37 and 41 of the Mental Health Act 1983. The respondent relied on contrary expert evidence that the appellant had exaggerated or feigned symptoms and that the original assessments had not been shown to be wrong.

The central issue was whether the appellant had proved that, at the time of sentence, he had a treatable mental disorder which made hospital detention appropriate.

Appeal dismissed. The court held that the appellant had not established that the psychiatric evidence before the sentencing judge was materially flawed or mistaken.

1. The appellant bore the burden of showing that, at the date of sentence, he suffered from a mental disorder of a nature or degree making detention in hospital for medical treatment appropriate under section 37(2)(a) of the Mental Health Act 1983. It was common ground that, if that condition were met, a hospital order with restrictions under sections 37 and 41 would have been appropriate.

2. The court accepted Dr Joseph’s evidence in preference to the later opinions of Dr Taylor and Dr Barron. Two separate psychological assessments supported the conclusion that the appellant had malingered symptoms. The court found no satisfactory explanation for disregarding those assessments.

3. The appellant’s presentation was inconsistent with the severe, treatment-resistant schizophrenia alleged. His behaviour was manipulative and reflected a preference for hospital conditions, particularly those close to his family. His detailed letter seeking support for his appeal was also evidence of thoughtful self-justification rather than serious mental illness. The contemporaneous experts who assessed him in 2005 and 2006 had not accepted that he was experiencing genuine hallucinations.

4. The court accepted that the appellant might, though unlikely, have developed paranoid schizophrenia after sentence. That possibility could not retrospectively render the sentence wrong in principle or manifestly excessive. Section 47 provided the mechanism by which the Secretary of State could direct transfer to hospital if mental illness developed during custody.

Accordingly, detention for public protection was the appropriate sentence and the appeal was dismissed.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed: [2013] EWCA Crim 1393.
• Luton Crown Court: On 9 February 2007, following a guilty plea to wounding with intent, the appellant was sentenced to detention for public protection with a minimum term of five years.