Damien Osmond v R

Where enduring mental disorder was present when an offender was sentenced, later evidence may justify an extension of time and an appeal against sentence, even after many years. The court must assess whether a hospital order with restrictions is the most suitable disposal, having regard to the disorder, its causal connection with the offending, its treatability, the available treatment, the risks posed, and the comparative release and recall regimes. Public safety is a principal concern, but there is no general rule that one regime is preferable. Medical evidence informs the decision; it does not determine it. Where the statutory requirements are met, an imprisonment for public protection sentence may be quashed and replaced by a hospital order under sections 37 and 41 of the Mental Health Act 1983.

The appellant pleaded guilty in 2011 to burglary and arson, having set fire to his prison cell while detained on remand. He was sentenced by the Crown Court at Leicester to imprisonment for public protection for the arson, with a two-year minimum term, and to a concurrent 28-month sentence for burglary.

More than 12 years later, he sought an extension of time and leave to appeal, relying on fresh psychiatric and documentary evidence. The evidence indicated that schizophrenia and severe personality disorder had been present when he offended and were causally connected with the offending, although the diagnosis had been disputed at sentence. The central issue was whether the sentences should be replaced by a hospital order with restrictions.

1. Appeal and fresh evidence. The court granted the extension of time and leave to appeal. The appellant had not culpably delayed in bringing his condition to light, and the merits of the extension application were dictated by the merits of the appeal. The fresh documentary and expert evidence was admitted.
2. Enduring disorders. The evidence established that the appellant was suffering from schizophrenia and severe personality disorder when he committed the arson and was sentenced. The conditions were causally connected with the offending and susceptible to hospital treatment. The case was materially different from one in which serious psychiatric symptoms developed only during imprisonment.
3. Choice of disposal. Applying the approach in R v Vowles [2015] EWCA Crim 45, the court held that this was a clear case for a hospital order. The relevant considerations included the nature of the mental disorder, its causal connection with the offence, its treatability, the evidence that the condition would be better managed under the Mental Health Act regime, and the protection of the public.
4. The different release and post-release regimes were particularly important. There is no general rule preferring a restricted hospital order to a hybrid order under section 45A. The choice depends on the individual case. Medical experts’ opinions inform the decision but do not dictate it.
5. The court concluded that the requirements for a hospital order under section 37(2)(a), with a restriction under section 41, were met. A hospital and limitation direction was unsuitable because transfer to prison on release could create a danger of relapse. The appellant’s risk could safely be managed through the monitoring and recall regime. The sentences were quashed and replaced with hospital orders under sections 37 and 41.

• Court of Appeal (Criminal Division): The court granted an extension of time, granted leave, admitted fresh evidence, allowed the appeal, quashed the sentences, and substituted hospital orders under sections 37 and 41 of the Mental Health Act 1983: [2025] EWCA Crim 835.
• Crown Court at Leicester: In 2011 the appellant was sentenced to imprisonment for public protection for arson, with a two-year minimum term, and to a concurrent 28-month sentence for burglary.