Lall, R. v

When sentencing an offender whose mental disorder substantially contributed to manslaughter, the court must consider whether a penal element is appropriate and compare a hybrid disposal with a hospital and restriction order. A failure to take medication may reduce rather than increase culpability where it results from a genuine lack of insight caused by the mental illness. Weapon possession is not necessarily evidence of planning or premeditation where it arises from paranoid beliefs.

A Mental Health Act 1983 hospital and restriction order may be the proper indefinite disposal where the illness was the significant driver of the offence and the mental-health release and supervision regime offers the best protection to the public.

The offender stabbed and killed a man following a street confrontation. He was acquitted of murder but convicted of manslaughter by reason of diminished responsibility. The psychiatric evidence established paranoid schizophrenia, lack of insight, medication non-compliance attributable to the illness, and a continuing risk of serious violence if untreated.

At the Crown Court at Inner London, the judge imposed a hospital order and an unrestricted-duration restriction order under sections 37 and 41 of the Mental Health Act 1983. The Attorney General sought leave to refer the sentence as unduly lenient, contending that life imprisonment with a section 45A hospital and limitation direction was required.

The central issue was whether the absence of a penal element made the hospital disposal unduly lenient despite the offender’s dangerousness and the gravity of the offence.

The court refused the Attorney General’s application for leave to refer the sentence. The section 37 and section 41 disposal was not unduly lenient.

1. The court accepted that the offender was highly dangerous and that an indeterminate disposal was essential. The realistic alternatives were life imprisonment with a section 45A hospital and limitation direction, or an indefinite hospital and restriction order under the Mental Health Act 1983.

2. The offender’s lack of insight was central. His failure to take medication, and his conduct in obtaining but not taking it, resulted from his genuine belief that he was not ill. It was therefore not an aggravating feature of the kind it might have been for an offender with insight. Likewise, carrying a knife was not evidence of planning or premeditation where it stemmed from paranoia and an exaggerated perception of threat.

3. The judge did not expressly state why a penal element was inappropriate. Her reasons were nevertheless clear from her findings: the mental illness was the significant driver of the killing; medication non-compliance was attributable to that illness; retained responsibility was low, albeit at the upper end of the lower category; and the unanimous psychiatric evidence favoured the hospital regime for public protection.

4. The court applied the case-specific approach stated in R v Edwards [2018] EWCA Crim 595. The question was which release and supervision regime would best protect the public. The evidence entitled the judge to conclude that specialist mental-health supervision, rapid recall and the First-tier Tribunal discharge regime under sections 37 and 41 better addressed the particular risk.

5. Although a sentencer must make an independent assessment and is not bound by expert opinion, no compelling reason justified rejecting the consensus of the three psychiatrists. The hospital and restriction order was accordingly upheld.

• Court of Appeal (Criminal Division). The Attorney General’s application under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient was refused.
• Crown Court at Inner London. On 14 December 2020, following conviction for manslaughter by reason of diminished responsibility, the judge made a hospital order and an unrestricted-duration restriction order under sections 37 and 41 of the Mental Health Act 1983.