PAUL CRERAND v REGINA

When sentencing for an offence associated with a treatable mental disorder, a hospital order with restriction may be the proper disposal even where a discretionary life sentence is under consideration. The court must assess the causal connection between the disorder and offending, culpability, treatment response, risk after treatment, public protection and the regime on release. A psychiatric diagnosis or recommendation does not bind the sentencing judge. Public protection may be secured under the Mental Health Act 1983 regime where the evidence supports that conclusion. The court substituted hospital and restriction orders for a life sentence after fresh evidence established that paranoid schizophrenia caused the offending and that hospital treatment better protected the public.

After pleading guilty to wounding with intent contrary to section 18 of the Offences Against the Person Act 1861, the appellant was sentenced by the Crown Court at Preston on 11 December 2006 to discretionary life imprisonment with a minimum term of two years, nine months and 25 days. No psychiatric report was obtained because he declined assessment.

Following his later transfer to Ashworth Hospital and diagnosis of paranoid schizophrenia, the appellant sought an extension of time, leave to appeal against sentence and permission to adduce fresh psychiatric evidence under the Criminal Appeal Act 1968. The central issue was whether the sentence should be replaced by a hospital order under section 37 with a restriction under section 41 of the Mental Health Act 1983.

The court granted an extension of time, leave to appeal and leave to adduce fresh evidence. It allowed the appeal, quashed the sentence of life imprisonment and substituted a hospital order under section 37 with a restriction under section 41 of the Mental Health Act 1983.

1. At the time of sentence, the judge had no evidential basis for making a hospital order and could not be criticised for imposing a discretionary life sentence. Even if psychiatric evidence had been available, the judge would not have been bound to follow a recommendation for hospital treatment. The proper disposal had to be determined on all the evidence, with the alternative sentences being considered.
2. Applying the guidance in R (Vowles) and Secretary of State for Justice and the Parole Board [2015] EWCA Civ 56, and the guidance in R v Burinskas [2014] EWCA Crim 334, where a mental disorder is treatable, the offending is entirely attributable to it and treatment leaves no evidence of dangerousness, a hospital order under sections 37 and 41 is likely to be the correct disposal. The court must also consider culpability, public protection, transfer powers and the regime on release.
3. Because the offence was sentenced in 2006, a hybrid order under section 45A was unavailable. Before the 2008 amendment, that power was limited to offenders suffering from psychopathic disorder. Paranoid schizophrenia did not satisfy that condition.
4. The fresh evidence established that the appellant was suffering from paranoid schizophrenia when he offended and that the offending was attributable to the illness. The court considered the distinction identified in Attorney-General’s Reference (No 54 of 2011) [2012] Cr App R (S) 635 between prison-release recall and recall under the Mental Health Act. The 2015 Code of Practice had significantly diminished that distinction. Public safety remained primary, but could be secured under the Mental Health Act regime, where hospital management and treatment were better suited to protecting the public.

• Crown Court at Preston — Following the appellant’s guilty plea, imposed a discretionary life sentence on 11 December 2006 with a minimum term of two years, nine months and 25 days.
• Court of Appeal (Criminal Division) — Granted an extension of time, leave to appeal and leave to adduce fresh evidence. The sentence was quashed and replaced by a hospital order under section 37 with a restriction under section 41 of the Mental Health Act 1983, as recorded in [2022] EWCA Crim 962.