Turner v R

Fresh psychiatric evidence may justify an out-of-time appeal against sentence where it is credible, was not reasonably available at sentencing, and demonstrates the offender’s mental condition and the appropriate legal disposal at that time.

Where the conditions for a hospital order under the Mental Health Act 1983 are met, the court must separately decide the appropriate disposal. It must assess the need for treatment, the relationship between disorder and offending, the need for punishment, and public protection, including release and supervision arrangements. A hospital order with a restriction order may be preferable to an indeterminate custodial sentence where it provides necessary treatment and adequate protection for the public.

The appellant pleaded guilty at the Crown Court at Stoke to two attempted robberies and attempted theft. In March 2007 she received imprisonment for public protection, with an 18-month minimum term. The sentencing judge did not consider a hospital order because the psychiatric evidence then available treated the statutory conditions as unmet.

After repeated self-harm in prison, she was transferred in 2008 to a medium-secure psychiatric unit under the Mental Health Act 1983. Fresh psychiatric evidence described a persistent and treatable personality disorder, linked her substance misuse and offending to that disorder, and supported a hospital order with a restriction order.

She sought leave to appeal out of time and to replace the IPP sentence with orders under sections 37 and 41. The central issue was whether the new evidence established that a hospital-based disposal should have been imposed at the time of sentence.

1. Appeal allowed. The court granted leave to appeal out of time, quashed the IPP sentence, and substituted a hospital order with a restriction order under sections 37 and 41 of the Mental Health Act 1983.

2. The fresh psychiatric evidence was credible, undisputed, and could not reasonably have been available at the original sentencing hearing. It was not an attempt to reopen an issue already decided. It provided a longer-term assessment which established the severity and persistence of the appellant’s condition at the time of sentence.

3. Applying the approach in R v Vowles and other [2015] EWCA Crim 45, the court considered first whether the statutory conditions for a hospital order were met and then the appropriate disposal. The need for treatment, the relationship between the disorder and offending, punishment, and public protection were distinct considerations.

4. The appellant continued to need inpatient multidisciplinary treatment which was not shown to be available in custody. Her substance misuse was properly understood as part of, and a response to, her personality disorder rather than as an independent explanation for the offending. The offences were therefore substantially related to her mental disorder and associated compulsive behaviour.

5. Although the attempted robberies were serious, the appellant had already spent more than eight years detained. A restriction order and review by the First-tier Tribunal provided adequate public protection and a clearer route to release when risk was acceptably managed. Had the severity of the disorder been identified in 2007, a hospital order would probably have been the appropriate sentence.

• Court of Appeal (Criminal Division): granted leave to appeal out of time, allowed the appeal against sentence, quashed the IPP sentence, and substituted hospital and restriction orders.
• Crown Court at Stoke: following guilty pleas to two attempted robberies and attempted theft, imposed imprisonment for public protection in March 2007.