Marshall, R. v

When sentencing violent disorder committed by a large group, the court must assess the collective effect of the disorder as well as the offender’s individual conduct. Deterrence is required and, where the offending is sufficiently serious, only immediate custody will ordinarily suffice.

A hospital order under section 37 of the Mental Health Act 1983 may nevertheless be the most suitable disposal where the statutory clinical conditions are met and community supervision and treatment are unrealistic. An unrestricted hospital order is a therapeutic, not punitive, disposal.

The appellant pleaded guilty in the Crown Court at Newcastle upon Tyne to violent disorder arising from serious disorder involving football supporters in Newcastle city centre. Although his individual conduct did not include proven bottle-throwing, he knowingly joined and remained with the violent crowd.

The sentencing judge considered that the offence ordinarily required immediate custody. He instead made a hospital order under section 37 of the Mental Health Act 1983, supported by unanimous psychiatric evidence that the appellant had a learning disability associated with aggressive and irresponsible conduct, required intensive treatment, and would not engage meaningfully with treatment in the community.

The appellant appealed against sentence, contending that a suspended sentence with supervision should have been imposed instead.

Appeal dismissed.

1. The offending was sufficiently serious that, absent the appellant’s mental condition, only an immediate custodial sentence would have been justified. In group violent disorder, sentencing must reflect the collective impact of the disorder, not merely the offender’s discrete acts. Sentences must also contain a deterrent element.

2. The requirements for a hospital order under section 37 of the Mental Health Act 1983 were met. The medical evidence established a mental disorder of a nature and degree making hospital detention appropriate, with treatment available. The appellant required structured specialist treatment and presented risks to others and himself. His longstanding non-compliance meant that community treatment, and the suspended sentence proposed, were unrealistic.

3. The sentencing judge was entitled to conclude that a hospital order was the most suitable disposal after considering the offence, the appellant’s history, his mental state, the available alternatives, the unanimous medical opinion, and the probation officer’s support.

4. The absence of a restriction order under section 41 did not make the disposal punitive or improperly draconian. Applying R v Birch (1990) 90 Cr App R 78, as approved in R v Drew [2004] 1 Cr App R(S) 8, an unrestricted hospital order moves the offender into the hospital regime. Its purpose is treatment and reduction of future offending, rather than retribution or deterrence. The appellant could seek discharge after six months and annually thereafter.

5. The updated psychiatric evidence confirmed that the section 37 conditions continued to be satisfied and that hospital treatment remained the most suitable disposal.

1. Court of Appeal (Criminal Division) Dismissed the appeal against sentence: [2015] EWCA Crim 474.
2. Crown Court at Newcastle upon Tyne The appellant pleaded guilty to violent disorder and was made subject to a hospital order under section 37 of the Mental Health Act 1983, together with a six-year football banning order.