Aitchison, R. v

Fresh psychiatric evidence may establish that a serious psychotic disorder was present but unrecognised when an imprisonment for public protection sentence was imposed. Where the evidence shows that detention for medical treatment is appropriate, the court may quash that sentence and substitute a hospital order under the Mental Health Act 1983. A restriction order without limit of time is justified where it is necessary and proportionate to protect the public from the risk of serious violence.

The appellant had received an imprisonment for public protection sentence with a 24-month minimum term at Southampton Crown Court after pleading guilty to grievous bodily harm with intent, possession of an offensive weapon and common assault.

He later deteriorated in custody and was transferred to a medium secure psychiatric unit. On his application for permission to appeal out of time, he sought to adduce fresh psychiatric evidence. Three psychiatrists concluded that he had paranoid schizophrenia at the time of the offences, that the condition had not then been properly identified, and that a hospital disposal was now appropriate.

The central issue was whether the IPP sentence should be replaced by a hospital order and an unrestricted-time restriction order.

1. Appeal allowed. The court granted leave to appeal, an extension of time, and leave to adduce the fresh psychiatric evidence under section 23(2) of the Criminal Appeal Act 1968.
2. The court accepted the unanimous psychiatric evidence that the appellant had suffered from a severe mental disorder, namely paranoid schizophrenia, when he committed the index offences. His illness had been atypical and had not been recognised at the original sentencing hearing. The original judge could not be criticised on the information then available.
3. Applying the guidance in R (Vowles) v Secretary of State and others [2015] 1 WLR 5131, the court held that a hospital order under section 37 of the Mental Health Act 1983 was now the most appropriate disposal. The medical evidence established both the need for compulsory treatment in a secure hospital setting and the unsuitability of prison for the specialist treatment required.
4. The appellant remained dangerous and, when acutely unwell, posed a risk of serious violence. A restriction under section 41 of the Mental Health Act 1983, without limit of time, was necessary and proportionate for public protection.
5. The IPP sentence was quashed and replaced by a section 37 hospital order with a section 41 restriction without limit of time.

• Court of Appeal (Criminal Division): allowed the appeal and, in [2016] EWCA Crim 739, quashed the IPP sentence. It substituted a hospital order under the Mental Health Act 1983 with a restriction without limit of time.
• Crown Court at Southampton: on 6 June 2008, imposed an IPP sentence with a minimum term of 24 months following guilty pleas to the index offences.