R v Moses Smith

A sentencing judge dealing with manslaughter by reason of diminished responsibility may refuse to adjourn sentence for further psychiatric reports where the available evidence, including substantial improvement in the offender’s mental health and access to treatment in custody, makes further assessment unnecessary. An adjournment may be open without being required. In assessing retained culpability, the judge must consider all the evidence, not only psychiatric opinion. Deliberate preparation, rational conduct before the offence and the nature of the attack may justify high retained culpability. A later report not before the sentencing judge does not itself establish that the sentence was wrong in principle or excessive.

The appellant pleaded guilty at the Crown Court at Wolverhampton to manslaughter on the ground of diminished responsibility and to possession of a bladed article. He was sentenced to life imprisonment under Sentencing Act 2020, with a minimum term of 10 years and 127 days after credit for time on remand.

He appealed on the grounds that the sentencing judge should have adjourned sentence for further psychiatric assessment concerning possible disposal under Mental Health Act 1983, and that the judge had wrongly assessed retained culpability as high. A further psychiatric report was obtained during the appeal. The central issues were whether the refusal to adjourn was wrong in principle and whether the sentence was manifestly excessive.

The appeal was dismissed. The sentence was neither wrong in principle nor excessive.

1. Further psychiatric assessment. It was open to the sentencing judge to adjourn for further investigation, but that did not make an adjournment necessary. The sentencing hearing took place about 20 months after the offence. The appellant’s mental health had substantially improved, he had returned from hospital to prison, he was no longer receiving psychiatric treatment and he had declined medication. Treatment remained available within the prison system. Against that background, the judge was entitled reasonably to conclude that further assessment was unnecessary. The judge had correctly addressed the relevant questions concerning disposal under the Mental Health Act 1983.
2. Later evidence. Dr Bennett’s report postdated sentence. Although it referred to the appellant remaining unwell, it did not conclude that he had developed mental ill-health sufficiently relevant to affect the sentence. It therefore did not demonstrate an error in the sentencing decision.
3. Retained culpability. In sentencing for manslaughter by reason of diminished responsibility, retained culpability is assessed on all the evidence and is not confined to psychiatric opinion. The appellant had bought a knife shortly before the offence, searched online for revenge killing, made rational calls to the insurance company, spoke calmly with the deceased before asking him to go outside, and then carried out a sustained and forceful attack. Those matters justified the finding of high retained culpability. The finding that he was a dangerous offender was inevitable given the seriousness of the killing.

• Court of Appeal (Criminal Division): On 14 March 2024, the court dismissed the appeal, holding that the sentence was neither wrong in principle nor excessive: [2024] EWCA Crim 361.
• Crown Court at Wolverhampton: On 3 February 2023, the appellant was sentenced to life imprisonment for manslaughter, with a minimum term of 10 years and 127 days after credit for time spent on remand, together with a concurrent sentence for possession of a bladed article.