Westwood, R v

Where an offender’s mental disorder may justify a hospital order, the court must consider every available disposal, including a direction under section 45 A, before deciding whether a penal element is necessary. That decision requires a fact-sensitive assessment of treatment needs, the extent to which the offending is attributable to the disorder, culpability, harm and public protection.

A judge is not bound by psychiatric opinion, but an assessment of retained responsibility must have a proper evidential basis. Where the illness largely caused the offending and apparent anger or treatment non-compliance was itself a manifestation of that illness, a low level of responsibility may make a penal element inappropriate. A hospital and restriction order can provide sufficient protection even for a dangerous offender.

The appellant pleaded guilty at Warwick Crown Court to manslaughter by reason of diminished responsibility after killing his mother. He suffered from paranoid schizophrenia, autism spectrum disorder and other difficulties. The psychiatrists supported a hospital order under sections 37 and 41 of the Mental Health Act 1983.

The sentencing judge instead imposed an extended sentence of 21 years, comprising 16 years’ custody and a five-year extension period, with a hospital and limitation direction under section 45 A. The appellant appealed on the grounds that this was wrong in principle and that the custodial term was excessive.

The central issues were his retained responsibility, whether a penal element was needed, and whether the respective release regimes under sections 37 and 41 and section 45 A would adequately protect the public.

1. Appeal allowed. The extended sentence and hospital direction were quashed. The court substituted a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983.

2. The court applied the structured approach in R. v Vowles and others [2015] EWCA Crim 45 and R. v Edwards [2018] EWCA Crim 595. A hospital order was plainly appropriate. The court therefore had to consider all available disposals, including section 45 A, and decide whether a penal element was necessary by assessing culpability and harm alongside treatment needs and public protection.

3. The judge’s assessment that the appellant retained medium to high responsibility was wrong. The only realistic conclusion on the evidence was that responsibility was low. The psychiatric evidence showed that the killing was largely attributable to an acute psychotic exacerbation. The appellant’s anger was a significant manifestation of his illness, not an independent culpability-enhancing cause. There was also no evidential basis for treating any failure to obtain treatment as a culpable omission.

4. Despite the grave offence and accepted dangerousness, a penal element was not appropriate. The appellant required long-term, probably lifelong, treatment and supervision in a secure hospital. On these facts, the section 37 and 41 regime would effectively protect the public and would probably provide greater protection than section 45 A, both before and after any discharge.

5. It was unnecessary to determine the challenge to the length of imprisonment. The court nevertheless indicated that the appellant should likely have received full credit for his plea: psychiatric evidence was necessary before it could properly be determined whether his account of self-defence was a viable issue or a manifestation of mental illness.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the extended sentence with a section 45 A direction, and substituted orders under sections 37 and 41 of the Mental Health Act 1983 ([2020] EWCA Crim 598).

• Warwick Crown Court: On 16 April 2019, imposed an extended sentence of 21 years, comprising 16 years’ custody and a five-year extension period, with a hospital direction under section 45 A and a limitation direction under section 41.