Cleland v R.

Where credible fresh psychiatric evidence establishes that an offender had a previously undiagnosed mental disorder at sentencing, the Court of Appeal may admit it and substitute a different lawful disposal. The court must decide the most suitable disposal on all the circumstances. The Vowles considerations are relevant factors, rather than inflexible preconditions.

Those factors include the need for treatment, the extent to which the offending was attributable to the disorder, the continuing need for punishment, and public protection under the available release and supervision regimes. Time already served may substantially reduce the present weight of punishment. Where the material future risk is linked to the mental disorder, a hospital order with restrictions may better protect the public by securing specialist treatment and monitoring.

Cleland v R concerned a 16-year-old who pleaded guilty to attempted murder and received detention for life, with a seven-year minimum term. The sentencing judge had evidence that the appellant was neither mentally ill nor autistic, and no medical disposal was proposed.

An earlier appeal against sentence was dismissed. After transfer from custody to hospital, the appellant was conclusively diagnosed with autism spectrum disorder. The Criminal Cases Review Commission referred the case, and the appellant sought to adduce fresh expert evidence and to replace the life sentence with a hospital order under the Mental Health Act 1983 with restrictions.

The central issue was whether the fresh evidence showed that the appellant should now be sentenced differently, and whether a section 37/section 41 disposal was the most suitable method of dealing with the case.

1. Appeal allowed. The court admitted the fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. The evidence was credible, would have been admissible below, could ground the appeal, and there was a reasonable explanation for its earlier absence. It established that the appellant had autism spectrum disorder at the time of sentence and that the conditions in section 37(2)(a) of the Mental Health Act 1983 were met.

2. Following R v Bennett [1968] 1 WLR 988 and R v Beatty [2006] EWCA Crim 2359, section 11(3) of the 1968 Act permitted the court to substitute the sentence that the fresh evidence showed was appropriate at the time of sentence. This did not turn the appeal into a public-law review of the sentencing judge’s reasons.

3. The court applied the approach in R v Vowles [2015] EWCA Crim 45. The need for treatment, attribution of offending to disorder, punishment, and public protection were relevant factors, not rigid criteria. The appellant needed lifelong specialist treatment. His disorder significantly, but not wholly, contributed to the offence. He retained significant responsibility for its serious and planned features.

4. The serious premeditated offence required punishment, but almost all of the seven-year minimum term had been served. In deciding whether he should now be sentenced differently, the punitive element therefore carried little weight.

5. Public protection was finely balanced. Treatment was available under either regime, and a life sentence did not prevent hospital treatment. However, the material future risk was violent behaviour linked to the appellant’s disorder. A section 37/section 41 regime would provide the more effective specialist monitoring and management when he eventually returned to the community.

6. The court quashed the detention-for-life sentence and substituted a hospital order under section 37, requiring detention at the appellant’s current hospital, together with a restriction order under section 41.

• Supreme Court: An application for leave to appeal from the earlier sentence appeal was refused on 8 July 2014.

• Court of Appeal (Criminal Division): On referral by the Criminal Cases Review Commission, the court allowed the renewed appeal against sentence, quashed detention for life, and substituted orders under sections 37 and 41 of the Mental Health Act 1983.

• Court of Appeal (Criminal Division): The appellant’s original appeal against sentence was dismissed on 28 February 2014.

• Crown Court at Bradford: On 13 August 2013, following a guilty plea to attempted murder, HHJ Durham Hall QC imposed detention for life with a seven-year minimum term and an indefinite restraining order.