R v Joseph Hawkridge

Where an offender with a mental disorder is to receive a custodial sentence, the court must consider the likely effect on the disorder and available treatment under section 232(3)(b) of the Sentencing Act 2020. That duty applies whether or not counsel expressly invites consideration of it.

A custodial sentence, including a suspended sentence, may be inappropriate where the offender requires hospital detention and the sentence creates an unacceptable risk of conflicting criminal and mental-health regimes. Existing civil detention does not remove the need to consider a hospital order under section 37 of the Mental Health Act 1983. If the necessary evidence is absent, the sentencing court should take steps to obtain it before deciding whether a hospital order is appropriate.

The appellant pleaded guilty in the Crown Court at Maidstone to harassment contrary to section 2 of the Protection from Harassment Act 1967. He had been indicted for stalking involving serious alarm or distress. He had schizophrenia and was detained in hospital under section 3 of the Mental Health Act 1983.

The Recorder imposed an eight-week sentence of imprisonment, suspended for 12 months, with ancillary orders. The appellant appealed against sentence. He contended that the Recorder should have considered a hospital order, the effect of custody on his condition and treatment, and the need for further medical evidence.

The central issue was whether the suspended sentence was appropriate while the appellant remained subject to civil mental-health detention and evidence indicated that a hospital order might be suitable.

1. Appeal allowed. The suspended custodial sentence was set aside. The Court concluded that a hospital order under section 37 of the Mental Health Act 1983 was the appropriate disposal, with the precise terms to be agreed or settled following submissions.

2. The Recorder was subject to the mandatory duty in section 232 of the Sentencing Act 2020. The appellant plainly suffered from a mental disorder and the Recorder imposed a custodial sentence. The Recorder therefore had to consider the likely effect of custody on the appellant’s condition and available treatment. That obligation did not depend on an express defence submission, although the issue had in substance been raised.

3. The Recorder’s omission was material. The medical evidence showed that the appellant needed hospital detention, either under section 3 or under a section 37 hospital order. A suspended sentence created a real and unacceptable risk of conflicting regimes: further offending could lead to arrest and activation of the sentence while the appellant remained detained for treatment. Any prospective benefit if he were later discharged did not outweigh that risk.

4. Although the Recorder could not immediately make a hospital order without the statutory medical and hospital-admission evidence required by section 37(4), existing section 3 detention did not excuse consideration of that disposal. The Recorder should have initiated the necessary steps so that a hospital order could be considered at a further hearing.

5. On the appeal, the Court had current reports from two psychiatrists and oral evidence from the responsible clinician. It was therefore able to make the hospital order. A conditional discharge was rejected because it added no useful protection and retained a risk of conflicting regimes. On making the hospital order, the civil section 3 detention would cease under section 40(5). The restraining and other ancillary orders were unaffected.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1288, allowed the sentence appeal, set aside the suspended custodial sentence, and determined that a hospital order under section 37 of the Mental Health Act 1983 was the appropriate disposal.

• Crown Court at Maidstone: The appellant pleaded guilty to harassment contrary to section 2 of the Protection from Harassment Act 1967. The Recorder imposed eight weeks’ imprisonment suspended for 12 months, with a restraining order and surcharge.