Fort, R v

Where serious violence is directly caused by a treatable mental disorder, and no significant risk of serious offending would remain if that disorder were cured or substantially alleviated, the suitable disposal is a hospital order under section 37 with a restriction order under section 41 of the Mental Health Act 1983. A sentence of custody for life is then wrong in principle.

The essential distinction is between risk arising from mental disorder and independent criminal risk. A hospital direction under section 45A is unavailable where an offender under 21 at conviction can receive custody for life rather than a sentence of imprisonment.

The appellant pleaded guilty to manslaughter by reason of diminished responsibility after killing his mother during a dissociative episode. He was under 21 when convicted. The Crown Court imposed custody for life under the Criminal Justice Act 2003, with a four-year minimum term, rather than a hospital order and restriction order under the Mental Health Act 1983. It later purported to make a hospital and limitation direction under section 45A of that Act.

On the sentence appeal, the court received unopposed fresh psychiatric evidence. The central questions were whether the appellant retained a serious residual public risk after effective treatment of his mental disorder, whether custody for life was therefore wrong in principle, and whether section 45A was available.

1. Appeal allowed. The sentence of custody for life was quashed. It was replaced with a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983. The purported section 45A order was set aside as unlawful.
2. The court applied the distinction explained in Attorney-General’s Reference No 54 of 2011, [2012] 1 Cr App R (S) 106. The decisive question was whether the appellant would pose a significant risk of serious offending even if his mental disorder were cured or substantially alleviated. A hospital order is unsuitable where there is an independent residual criminal risk, because its discharge and recall regime concerns danger arising from the medical condition.
3. The fresh psychiatric evidence established a direct causal link between the appellant’s mental disorder and his violence. It also established that he would not present the relevant public risk once the disorder’s manifestations were cured or substantially alleviated sufficiently for conditional discharge. He satisfied the requirements for a section 37 order, and the nature of the offence and risk required a section 41 restriction order. The sentencing judge had therefore erred in preferring custody for life.
4. Fresh expert evidence in a sentence appeal is not received automatically. Under section 23 of the Criminal Appeal Act 1968, the appellant must show that receiving it is necessary or expedient in the interests of justice. Here it was expedient and directly addressed whether the original disposal was wrong in principle.
5. Section 45A applies only where the court is deciding to impose a sentence of imprisonment. An offender under 21 at conviction could not lawfully receive imprisonment and, if a life sentence were appropriate, had to receive custody for life. The statutory extension concerning persons serving imprisonment did not extend section 45A(1)(b) to a decision to impose detention or custody for life. The Crown Court therefore lacked power to make the section 45A direction.

• Court of Appeal (Criminal Division): Allowed the sentence appeal; quashed custody for life; substituted orders under sections 37 and 41 of the Mental Health Act 1983; and set aside the section 45A direction as unlawful.
• Crown Court at Birmingham: On 22 February 2012, imposed custody for life under section 225(2) of the Criminal Justice Act 2003, with a four-year minimum term. On 2 March 2012, purported to make a section 45A direction under the Mental Health Act 1983.