Fuller v R

Where fresh psychiatric evidence establishes that, at sentence, an offender had a treatable mental disorder which materially contributed to the offending, the court may substitute a hospital order where that is the most suitable disposal. Under Mental Health Act 1983 section 37, the court must assess the statutory medical conditions and all relevant circumstances. It must also consider culpability, punishment, public protection, available treatment, and the release and recall regime.

A restricted hospital order may be appropriate where specialist hospital treatment and mental-health supervision provide the safest route to rehabilitation and public protection. Departure from open justice through anonymisation requires necessity. Medical vulnerability and disclosure of treatment details alone do not establish that necessity.

The appellant was convicted at Lewes Crown Court, aged 15, of two attempted rapes and a sexual assault. On 31 July 2009, aged 16, he received detention for public protection with a three-year tariff.

Following his tariff’s expiry, he encountered serious difficulties in custody and was transferred to secure hospitals under the Mental Health Act 1983. Fresh psychiatric and neuropsychological evidence established a severe learning disability and associated mental disorder which had not been identified at sentence. The appellant sought substitution of a restricted hospital order under sections 37 and 41. He also sought anonymisation of the judgment.

The central questions were whether the fresh evidence justified the substituted disposal, and whether anonymisation was necessary to protect the appellant’s treatment and rehabilitation.

1. The appeal against sentence was allowed. The court extended time, granted permission to appeal, admitted the fresh evidence, and substituted a hospital order under section 37 of the Mental Health Act 1983 with a restriction order under section 41 for the detention for public protection sentence.

2. Section 37 required satisfaction on medical evidence that the appellant had a mental disorder of a nature or degree making hospital detention for treatment appropriate, that suitable treatment was available, and that a hospital order was the most suitable disposal. Applying the guidance in R v Vowles and ors [2015] EWCA Crim 45, the court considered the psychiatric evidence alongside culpability, punishment, public protection, and the applicable release regime.

3. The new evidence was comprehensive and showed that the appellant had, at the time of the offences, a lifelong learning disability associated with seriously abnormal aggression and irresponsible behaviour. It was a mental disorder which materially contributed to the offending. Had it been known at sentence, a hospital order would have been made. The appellant needed specialist treatment unavailable in prison, and his progress in hospital demonstrated its benefit.

4. The distinction between detention for public protection and a restricted hospital order was material. A hospital order would provide a mental-health pathway for treatment, phased reduction in security, release, supervision and recall. That pathway was best suited both to the appellant’s needs and to public protection, since future risk depended on his mental condition, medication and specialist multidisciplinary monitoring.

5. The request for anonymisation was refused. The court applied the open-justice balance identified in In re Guardian News and Media Ltd and ors [2010] 2 AC 697 and R (on the application of C) v Secretary of State for Justice [2016] UKSC 2. Whether or not a binding anonymity order is sought, a departure from open justice requires necessity. The appellant’s vulnerability, medical evidence and treatment details did not suffice. The prospect that identification would impede treatment was remote. The court nevertheless omitted the name of his current unit and responsible clinician.

• Court of Appeal (Criminal Division): Granted an extension of time and permission to appeal, admitted fresh evidence under the Criminal Appeal Act 1968, and substituted a section 37 hospital order with a section 41 restriction order under the Mental Health Act 1983.

• Lewes Crown Court: On 31 July 2009, following convictions for attempted rape and sexual assault, imposed detention for public protection with a three-year tariff.