Fisher, R. v

When sentencing an offender whose mental disorder may justify a hospital order, the court must consider all available disposals and the proper role of punishment. A hospital and limitation direction under section 45A of the Mental Health Act 1983 is appropriate only if the disorder can appropriately be dealt with under that regime.

A life sentence does not enhance public protection merely because it adds Parole Board involvement. The court must compare the actual release, aftercare, recall and rehabilitation consequences of the competing regimes. Where retained responsibility is low, the punitive term is shorter than the necessary treatment period, and risk arises solely from the mental disorder, a restricted hospital order under sections 37 and 41 may be the most suitable disposal.

The appellant pleaded guilty to manslaughter by diminished responsibility after killing his mother while suffering from paranoid psychosis. He also admitted fraud, driving whilst disqualified and uninsured, and breach of a suspended sentence. The psychiatrists agreed that his responsibility was substantially diminished and recommended a hospital order with an unlimited restriction.

At Lewes Crown Court, the judge applied the new manslaughter guideline. She found the appellant dangerous and imposed life imprisonment with a two-year minimum term and a section 45A direction under the Mental Health Act 1983. The appeal concerned whether that disposal, rather than a restricted hospital order under sections 37 and 41, was appropriate.

1. Appeal allowed. The life sentence with a section 45A direction was inappropriate. The court substituted a hospital order under sections 37 and 41 of the Mental Health Act 1983, with an unrestricted duration.

2. The Sentencing Council guideline required the court first to assess retained responsibility and dangerousness, then to consider mental-health disposals. The principles in Edwards [2018] EWCA Crim 595 remained applicable. A sentencing judge must consider all options, including section 45A, and must assess whether punishment has a proper role. If section 45A is unsuitable, the court must decide whether a hospital order with or without a restriction is the most suitable disposal.

3. The appellant’s retained responsibility was in the lowest category. His two-year minimum term was plainly shorter than the period for which secure hospital treatment would be required. Any punitive element therefore had no independent practical force, because he would spend that period in hospital whichever disposal was chosen.

4. The court rejected any general assumption that a life sentence with a section 45A direction necessarily gives greater public protection than a restricted hospital order. The regimes must be compared on their facts. Here, the evidence showed that the appellant posed no risk apart from that arising from his mental disorder. Parole Board involvement would add no material protection, whereas the section 37/41 regime offered important advantages in rehabilitation, tailored aftercare and prompt recall to hospital.

5. The court revoked the sentences for the ancillary offences and made no separate order for them. It retained the 12-month driving disqualification, revoked the six penalty points because of section 44 of the Road Traffic Offenders Act 1988, and revoked the victim surcharge.

• Court of Appeal (Criminal Division) — Allowed the appeal and substituted a hospital order under sections 37 and 41 of the Mental Health Act 1983 for life imprisonment with a section 45A direction.
• Lewes Crown Court — On 1 November 2018, imposed life imprisonment with a two-year minimum term and a section 45A direction following guilty pleas to manslaughter by diminished responsibility and ancillary offences.