Bala, R. v

A hospital order with a restriction order is not the proper substitute for a life sentence unless it is the most suitable statutory disposal in all the circumstances. In a case in which life imprisonment is in contemplation, that disposal will generally be apt where the mental disorder is treatable, treatment removes dangerousness, and the offending is entirely attributable to the disorder.

Fresh psychiatric evidence obtained long after sentence does not justify altering a sentence that was correct in principle. It may do so only where it convincingly shows that the sentencing court proceeded on a wrong basis, such as through expert error. A perceived advantage in the release regime following a hospital order is not itself a ground of appeal.

The appellant pleaded guilty at the Central Criminal Court to manslaughter by reason of diminished responsibility after he pushed a stranger in front of an underground train. In June 2007, he received custody for life with a minimum term of four and a half years.

Psychiatric evidence at sentence conflicted. Most psychiatrists supported a hospital order under the Mental Health Act 1983, but the psychiatrist who conducted a three-month assessment at Broadmoor considered that treatment would not be effective and did not recommend hospital admission. The appellant was later transferred to hospital under statutory prison-transfer powers.

After a substantial delay, the court granted an extension of time and leave to appeal. It received fresh psychiatric evidence supporting a hospital order. The central issue was whether the original life sentence was wrong in principle and should be replaced by a hospital and restriction order.

1. Appeal dismissed. The court granted an extension of time and leave to appeal, but held that the life sentence was not wrong in principle.
2. At the original sentencing hearing, the judge had conflicting medical evidence. Dr Payne’s detailed assessment at Broadmoor concluded that hospital treatment would not be effective and did not support a hospital order. The absence of a Broadmoor bed reflected that professional judgment, rather than a general shortage of beds. The judge was entitled to give that assessment considerable weight and to take account of the possibility of a later prison transfer under Mental Health Act 1983 section 47.
3. The fresh evidence established that the appellant had schizophrenia and a personality disorder, but did not establish that the killing was entirely due to his mental disorder. The court rejected the developed opinion that he lacked appreciation of the consequences. His own contemporaneous statements showed that he understood, intended and acknowledged the consequences of his act.
4. Applying R v Vowles [2015] EWCA Crim 45, a section 37 and section 41 disposal was not the likely appropriate outcome. The statutory question under section 37(2)(b) remained whether, having regard to the offence, the offender and other available methods of dealing with him, a hospital order was the most suitable disposal. It was not.
5. The appeal was in substance directed to obtaining the release regime associated with a hospital order. That was not a proper ground for challenging a sentence which was correct when imposed and remained correct on the fresh evidence. This was unlike the exceptional expert-error situation identified in R v Ahmed [2016] EWCA Crim 670. Release remained a matter for the relevant statutory decision-makers and ultimately the Parole Board.

• Court of Appeal (Criminal Division): granted an extension of time and leave to appeal, received fresh psychiatric evidence, and dismissed the appeal against sentence: [2017] EWCA Crim 1460.
• Central Criminal Court: on 22 June 2007, imposed custody for life with a minimum term of four and a half years, less time on remand, following a guilty plea to manslaughter by reason of diminished responsibility.