Kitchener v R

Where fresh psychiatric evidence is credible, relevant and could not with due diligence have been obtained at sentence, the Court of Appeal may admit it and extend time where the interests of justice require. The court does not re-sentence in light of subsequent medical history. It asks whether, having regard to the sentencing powers available at the time, the original sentence was wrong in principle or manifestly excessive.

Where the statutory conditions for a hospital order are met, the appropriate disposal requires an assessment of treatment need, the causal connection between disorder and offending, the need for punishment, and public protection. A penal sentence is the usual course. Departure requires sound reasons. Public protection may favour a hospital and restriction order where effective treatment of the disorder causing serious offending offers the safer route to eventual release.

The applicant pleaded guilty in 2002 to attempted murder and received custody for life with a minimum term. The sentencing judge acted on psychiatric evidence that did not identify a serious mental or psychotic illness, and found that the applicant posed a serious continuing danger to the public.

About fourteen years later, he sought an extension of time, leave to appeal against sentence and admission of fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. The new evidence diagnosed a severe personality disorder amounting, at the time of sentence, to a psychopathic disorder capable of supporting a hospital order under the Mental Health Act 1983.

The central issue was whether the new evidence showed that the life sentence was wrong in principle or manifestly excessive, and whether public protection instead required hospital treatment with restrictions.

1. Appeal allowed. The court admitted the fresh psychiatric evidence, granted the long extension of time and granted leave to appeal. The evidence was credible and relevant. It could not have been obtained earlier with due diligence, because a reliable diagnosis of the applicant’s severe personality disorder would have been extremely difficult when he was 20.

2. Following R v Vowles and others [2015] EWCA Crim 45 and R v Turner [2015] EWCA Crim 1 249, the court did not conduct a re-sentencing exercise based on later medical history. It assessed whether, in light of that material and the sentencing powers then available, custody for life was wrong in principle or manifestly excessive.

3. In deciding whether a hospital order was the appropriate disposal once the conditions in section 37(2)(a) were met, the court applied the four matters identified in R v Vowles and others [2015] EWCA Crim 45: treatment need, the degree to which the offending was attributable to the disorder, punishment, and public protection. A penal sentence remains the usual course, and departure requires sound reasons.

4. The disorder existed at the time of the offence, was substantially responsible for its impulsive and apparently motiveless character, and required treatment that prison could not provide. The applicant had responded to hospital treatment, although further treatment was needed.

5. Public protection was decisive. Although the original judge had been right on the evidence then available to impose custody for life, the subsequent course showed that secure hospital treatment better addressed the source of dangerousness. The sentence of custody for life was quashed and replaced by a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983.

• Court of Appeal (Criminal Division): allowed the appeal against sentence, quashed custody for life and substituted a hospital order under sections 37 and 41 of the Mental Health Act 1983.

• Crown Court at Cardiff: in 2002, following a guilty plea to attempted murder, imposed custody for life with a minimum term of four years and eight months less time spent on remand.