Lucinda Vowles & Ors, R. v

Where the medical conditions for a hospital order are met, a hospital order is not automatic. The sentencing court must decide the most suitable disposal by considering the need for treatment, the connection between the disorder and offending, culpability and punishment, and public protection, including the consequences of the release and recall regimes.

Before making a hospital and restriction order, the court should consider a hospital and limitation direction under Mental Health Act 1983 section 45A. A sentence of imprisonment may remain appropriate where risk or culpability requires it, even though treatment can follow on transfer to hospital.

For a transferred indeterminate prisoner, separate review by the tribunal and Parole Board is Convention-compliant. Article 5(4) nevertheless requires a speedy assessment of the overall process, with prompt referral and active case management.

Six appellants challenged indeterminate sentences imposed between 1997 and 2008. Each had psychiatric evidence at sentence, was later transferred from prison to hospital under the Mental Health Act 1983, and relied on fresh psychiatric evidence to contend that a hospital and restriction order should originally have been made.

The court also heard Lucinda Vowles’s rolled-up civil appeal from the dismissal by Irwin J of her judicial-review claim concerning delay in the consideration of release. The judgment below was [2014] EWHC 1495 Admin.

The common issues were whether fresh evidence established that the original sentence was wrong in principle, how a sentencing court should choose between penal and hospital disposals, and whether the tribunal and Parole Board arrangements complied with Article 5(4).

1. The appeals were allowed in part. The court quashed the IPP sentences imposed on Coleman and McDougall, and the life sentence imposed on Odiowei, substituting hospital orders under section 37 with restriction orders under section 41. The criminal appeals of Vowles, Barnes and Irving were dismissed. Vowles’s civil appeal was also dismissed.

2. A hospital order under Mental Health Act 1983 section 37 is not the presumptive disposal merely because medical evidence satisfies the clinical conditions. Section 37(2)(b) requires the court to decide, having regard to all the circumstances and other available methods of dealing with the offender, whether it is the most suitable disposal. The court must consider treatment needs, the extent to which the offending is attributable to the disorder, culpability and punishment, and public protection, including release, recall and community-supervision regimes.

3. Where a hospital disposal may be suitable, the court should first consider a hospital and limitation direction under section 45A. If that is unsuitable, it must examine in detail whether a section 37 order is the most suitable disposal. Transfer following sentence under section 47 remains a relevant alternative. An interim hospital order under section 38 may assist assessment, but should be made only after careful consideration of its consequences.

4. There was no incompatibility with Article 5 or Article 14 in requiring a transferred indeterminate prisoner to satisfy both the mental-health discharge criteria and the separate Parole Board public-protection test. The two bodies determine distinct statutory issues. Article 5(4), however, requires speediness to be assessed across the whole process. The Secretary of State must refer the case promptly, and the Parole Board must actively manage it from referral rather than await a complete dossier.

5. Although NOMS and the Parole Board had materially failed in their handling of Vowles’s case, a speedier final determination was not possible before her necessary assessment at a suitable low-secure hospital. There was therefore no Article 5(4) breach on the facts.

6. Fresh evidence justified substituted hospital orders for Coleman, Odiowei and McDougall because it established a treatable serious mental illness substantially causative of the offending, and demonstrated that management under the mental-health regime would better protect the public. Fresh evidence did not show that the original penal sentences of Vowles, Barnes or Irving were wrong in principle. Mental disorder permits, but does not require, a medical disposal; a causal connection remains a legitimate consideration in the overall statutory evaluation.

1. Court of Appeal (Criminal Division): Allowed the sentencing appeals of Coleman, Odiowei and McDougall, substituting hospital and restriction orders. Dismissed the sentencing appeals of Vowles, Barnes and Irving. Granted permission but dismissed Vowles’s civil appeal.
2. High Court (Administrative Court): Irwin J dismissed Vowles’s judicial-review claim concerning delay in the release process: [2014] EWHC 1495 Admin.
3. Crown Courts: The appellants had received IPP or life sentences at various Crown Courts between 1997 and 2008. The underlying sentencing decisions were challenged by fresh evidence under the Criminal Appeal Act 1968.