R v Paul Richard Surrey

Where admissible fresh psychiatric evidence shows that a mental disorder existed at sentence and that the statutory conditions for a hospital order would then have been met, an appellate court may quash the custodial sentence and substitute a hospital and restriction order.

The medical threshold in section 37(2)(a) of the Mental Health Act 1983 is necessary but not sufficient. The court must assess suitability under section 37(2)(b), including treatment need, the causal connection with offending, punishment, and public protection. The differences between release and recall under the mental-health and parole regimes may be decisive. Where the punitive custodial term has been served, a hospital order with an unlimited restriction order may provide greater protection through clinical supervision and recall for medical non-compliance.

At the age of 17, Surrey pleaded guilty in the Crown Court at Newcastle to wounding with intent to cause grievous bodily harm. On 29 March 2007 he received a detention for public protection sentence under section 226 of the Criminal Justice Act 2003, with a custodial term of two years less time spent on remand.

Nearly 15 years late, he sought permission to appeal, an extension of time, and admission of fresh psychiatric evidence. The evidence established that he had paranoid schizophrenia, personality disorder and a learning disability, and that schizophrenia had probably been present in a prodromal form at the time of the offence and sentence. He was then detained in secure hospital under the mental-health regime.

The central issue was whether the original sentence should be replaced by a hospital order under section 37 of the Mental Health Act 1983, with an unlimited restriction order under section 41, and whether the exceptional extension of time should be granted.

1. The court granted permission to appeal, admitted the fresh evidence under section 23 of the Criminal Appeal Act 1968, and granted an extension of time of 14 years and 11 months. It allowed the appeal, quashed the detention for public protection sentence, and substituted a hospital order under section 37 of the Mental Health Act 1983 with an unlimited restriction order under section 41.

2. The fresh evidence established that Surrey had a mental illness at the material time, although it was not diagnosed in 2007. The conditions in section 37(2)(a) were satisfied. The sentencing judge had acted properly on the material then available and could not reasonably have considered a hospital order.

3. Applying the approach in R v Vowles [2015] EWCA Crim 45, the court considered all relevant circumstances under section 37(2)(b). Surrey required treatment; his mental disorders significantly caused or contributed to the index offending; and the punitive element of his sentence had long been served.

4. Public protection was the decisive consideration. A clinical team acting under a hospital and restriction order could monitor medication, recognise deterioration, and return Surrey promptly to secure hospital. Those safeguards were more comprehensive than supervision and recall after parole. The substituted order therefore increased, rather than reduced, protection of the public.

5. The length of the delay did not preclude an extension. The merits were strong, and the passage of time had produced fuller evidence of Surrey’s true mental condition rather than creating an evidential obstacle. Refusal would have caused further delay and expense without serving a useful purpose.

• Court of Appeal (Criminal Division) — Allowed Surrey’s appeal against sentence in [2022] EWCA Crim 1379. It quashed the detention for public protection sentence and imposed a section 37 hospital order with a section 41 restriction order, unlimited in time.

• Crown Court at Newcastle — On 29 March 2007, His Honour Judge Evans imposed detention for public protection under section 226 of the Criminal Justice Act 2003, with a custodial term of two years less 81 days on remand.