Edwards, R. v

A sentencing court dealing with a mentally disordered offender must first consider whether a hospital order under the Mental Health Act 1983 may be appropriate. It must then consider all available disposals, including a hospital and limitation direction under section 45A, before deciding whether a hospital order is the most suitable method.

Section 45A creates no presumption in favour of imprisonment. The need for treatment, the connection between illness and offending, culpability, punishment, public protection, and the applicable release regime must all be assessed. A section 37/41 regime does not invariably protect the public better than release after a section 45A order. The choice is fact-specific. Failure to take medication is not automatically culpable where that failure may itself result from mental illness.

The court considered four linked sentencing appeals involving offenders said to have been mentally ill when they committed serious offences. Edwards, Knapper and Payne had received life sentences with hospital and limitation directions under section 45A of the Mental Health Act 1983. Langley had received imprisonment for public protection before the relevant section 45A amendments were in force.

Each appellant contended that a hospital order with a restriction order under sections 37 and 41 was the proper disposal. The appeals raised the correct relationship between those disposals, the relevance of culpability and public protection, and whether the differing post-release regimes favoured a hospital order. The court also considered the proper procedure for fresh psychiatric evidence on a sentencing appeal.

1. The court allowed the appeals in part. Edwards’ life sentence with a section 45A hospital and limitation direction was upheld, but her minimum term was reduced from 10 years to five years. Knapper’s section 45A order was quashed and replaced by a hospital order under section 37 with a section 41 restriction. Langley’s IPP sentence was quashed and replaced by section 37 and section 41 orders; the concurrent sentences for criminal damage and theft were quashed with no separate penalty. Payne’s application for leave to appeal was rejected.

2. The court explained the guidance in R v Vowles and Others [2015] EWCA Crim 45. A judge must first consider whether a hospital order may be appropriate. If it may be, the judge must consider every sentencing option, including section 45A, before making a final disposal. Section 45A does not establish imprisonment as the default. A hospital order without a penal element requires sound reasons for departing from the usual course of imposing a sentence with such an element.

3. In deciding whether punishment is necessary, the court must assess culpability and harm under the Criminal Justice Act 2003. Mental illness may substantially reduce culpability, but the fact that offending would not have occurred without the illness does not necessarily remove all responsibility. A failure to take prescribed medication may be caused wholly or partly by illness and is not automatically a culpable omission.

4. The choice between a section 37/41 disposal and a section 45A disposal requires a careful assessment of the individual offender and the public-protection arrangements on release. The observations in R v Ahmed [2016] EWCA Crim 670 were confined to its facts. A section 37/41 regime does not necessarily provide greater protection than licence and MAPPA arrangements following a section 45A order.

5. Fresh psychiatric evidence challenging dangerousness, a hospital order, or a section 45A order normally requires an application under section 23 of the Criminal Appeal Act 1968. The limited practice of receiving post-sentence updates does not generally extend to such new expert evidence. New grounds of appeal also require an application to vary the grounds.

• Court of Appeal (Criminal Division) — by this joint judgment, [2018] EWCA Crim 595, the court varied Edwards’ minimum term, substituted section 37/41 orders for Knapper and Langley, and refused Payne leave to appeal.
• Central Criminal Court — Edwards was sentenced to life imprisonment, a 10-year minimum term, and a section 45A hospital and limitation direction.
• Crown Court at Stafford — Knapper was sentenced to life imprisonment with a section 45A hospital and limitation direction.
• Crown Court at Sheffield — Langley was sentenced in 2007 to imprisonment for public protection.
• Crown Court at Inner London — Payne was sentenced to concurrent life sentences with a section 45A hospital and limitation direction.