No. 2007/02262/A8
Neutral Citation Number: [2007] EWCA Crim 2559
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Monday  8  October  2007

B e f o r e:

LORD JUSTICE THOMAS
MR JUSTICE OPENSHAW

and

MR JUSTICE UNDERHILL
 - - - - - - - - - - - - - - -

R E G I N A

- v -

D R H
- - - - - - - - - - - - - - -

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -

Mr M McKone appeared on behalf of the Applicant
Mr R M L Duval appeared on behalf of the Crown
- - - - - - - - - - - - - - -

Judgment
Monday 8 October  2007

LORD JUSTICE THOMAS:  
1.  On the morning of 12 April 2001 the victim in this case went to Yeovil town centre for the day.  On her way home, having been drinking, she met the applicant, a complete stranger, on a road in Yeovil.  Despite the fact that he was a complete stranger, she not only accepted his invitation to go to his house for coffee, but also was persuaded by him to stay the night.  He persuaded her that she should sleep on his bed in the bedroom, whilst he slept on the settee in the living room.  He took her into the bedroom, which was darkened.  He then left.  Her intention was to leave when he fell asleep.  However, very shortly thereafter the applicant returned to the bedroom.  He undressed and climbed under the quilt.  He forced her to perform oral sex upon him and ejaculated into her mouth.  He then ordered her to strip.  When she refused, he removed her jeans and knickers.  Whilst shouting at her, he briefly performed oral sex on her and then attempted to have sexual intercourse with her.  He reached under a bed, picked up a knife and struck her in the stomach.  He continued to strike at her thereafter.  Suddenly he stopped.  He telephoned the emergency services.  He gave his correct name and address and said that he had stabbed a woman and raped her.  The emergency services attended and he admitted what he had done.

2.  He was adjudged fit to plead.  On 3 October 2001, in the Crown Court at Bristol, before His Honour Judge Crowther QC, the applicant pleaded guilty to attempted murder, to attempted rape and to indecent assault.  There was then a highly regrettable delay in dealing with this matter, despite every effort of the judges of the circuit to ensure that the matter was not delayed.  Initially, the matter was adjourned for sentence on 30 November 2001 when it came back before the then presiding judge.  The matter was adjourned as no beds were available to enable a psychiatric assessment to be carried out on the applicant.  The matter came before another High Court Judge in March 2002, when it was yet again adjourned.  There was a dispute as to whether that assessment should take place at a medium secure unit or at a secure unit.  The matter was resolved and on 5 May 2002 the Recorder of Bristol made an interim hospital order so that the applicant could be assessed at a medium secure unit.  That assessment period was extended by the court.  By the time the matter came before the sentencing judge, Hallett J, on 23 September 2002, there were a large number of reports before her.  The two primary reports were from Dr Mawson and Dr Husain.  They both agreed with the diagnosis that the applicant suffered from paranoid schizophrenia and probably also from a personality disorder.  Although he would possibly respond to medication for the former, the doctors were concerned about the latter.  They therefore recommended that the judge make an order under section 45A of the Mental Health Act 1985 (a provision which had not by then been used very much).  

3.  Hallett J heard evidence from Dr Thompson, a consultant at the medium secure unit at Bristol.  He confirmed the views of both of the doctors.  He explained to Hallett J how the order would work.  They would attempt to treat the applicant and if he was no longer amenable to treatment either because the treatment had been successful or it had been unsuccessful, he would then be remitted to prison to complete the balance of the sentence passed.

4.  Hallett J made it very clear that she had in mind to pass a sentence of life imprisonment on the two offences for which that sentence was available.  The question arose as to whether she would specify a minimum term under the provisions then in force, namely section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.  Her conclusion on that point was expressed in these terms:

		"Having taken account of all the circumstances of the offence and of your background, and of all the medical reports before me, of which there are many, I am entirely satisfied that I have no alternative because of your present state of dangerousness but to pass a sentence of life imprisonment on counts 2 and 3.  I make it plain that I would have passed such a sentence in any event because of the gravity of the offences, counts 2 and 3 [attempted murder and attempted rape].

		I am also satisfied that this is an exceptional case where I shall not specify a notional determinate sentence.  It would not, in my judgment, be appropriate and both counsel accept that, in principle, I have such a power.  Accordingly, I do not make any further determination."

The judge went on to make a formal order in those terms.

5.  What then happened is set out in an extremely helpful report prepared by Dr Collins, a Consultant Forensic Psychiatrist in the Medical Service Unit at Wakefield.  After the sentence had been passed, and until April 2004, the applicant was kept at Fromeside Secure Unit, Bristol, for a period of 19 months.  His schizophrenia responded well and the doctors concluded at the end of the period that there was no active evidence of mental illness, but there was a concern that he might require further treatment and he might not continue to use medication when required.  However, they also concluded that he suffered from a personality disorder of the anti-social type.  

6.  The applicant was then remitted, as a person serving a life sentence for which no minimum period had been specified, to a Category A Prison, HMP Wakefield.  He has spent about two years of the period since his transfer to Wakefield in the hospital wing because of either his mental state or his inability to cope.  Dr Collins considered recommending his transfer back to Fromeside, but the doctors at Fromeside did not think there was any medical reason so to do.  He has been treated by the prison authorities as a Category A prisoner with a whole life tariff.  Dr Collins' current assessment is that he still suffers from schizophrenia and a personality disorder.  Under the prison regime it is only when a prisoner reaches his tariff that he can be considered for admission for psychiatric rehabilitation and the necessary courses involved in such a process.  As he was a whole life prisoner, he was at the bottom of the queue for such courses and for such treatment.  The doctor concludes about the applicant’s present state as follows:

		"He continues to suffer from two serious forms of mental disorder (mental illness and antisocial personality disorder) and he has shown little or no regard either for his victim or for the enormity of his own actions.  While treatment for his mental illness has been feasible, addressing his offences, his attitudes, his insight etc will not prove possible for some considerable time for the reasons outlined above.  He is a Category 'A' inmate in a high security prison.  I can only conclude that the appellant does continue to represent a high risk to others and indeed although the psychology report from Fromeside Clinic earlier referred to hints at some progress I can see no reason to conclude from a risk assessment perspective that the appellant is any less of a risk to the public now than he was at the time of sentencing."

7.  In the light of the evidence that is now before this court, it is clear that the applicant continues to represent a very serious danger to the public.  It is also clear, on the basis of that evidence and on the basis of the authorities to which we will refer in a moment, that the learned judge was plainly right to pass the sentence of two concurrent life sentences with a section 45A Order.  At the time she passed sentence, she did not have available to her the decision of this court in R v Staines [2006] EWCA Crim 15, but in our judgment the conclusion that the judge reached on the necessity for a section 45A Order in combination with the life sentence was plainly the right one. 

8.  The sole issue, therefore, before the court is whether this is a case in which a minimum term should have been specified under the provisions in section 82A to which we have referred.  Those provisions make it clear in subsection (4) that the court has a discretion not to impose a specified term.  Subsection (4) provides: 

		"If the court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2) above, the court shall order that, subject to subsection (5) below, the early release provisions shall not apply to the offender."

9.  The terms on which the judge should exercise a discretion were at the time qualified by paragraph 3 of the Practice Direction (Crime: Life Sentences) [1993] 1 WLR 233, which provided:

		"The judge is not obliged by statute to make use of the provisions of section 34 [the relevant sections to which section 82 referred] when passing a discretionary life sentence.  However, the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public.  In such a case, the judge should state this in open court when passing sentence."

10.  Since Hallett J had to consider this matter in 2002, the House of Lords in Drew [2003] UKHL 25 has set out a very clear analysis of the interrelationship of the provisions for life imprisonment, where that sentence is passed on a discretionary basis, and the provisions for dealing with mentally impaired defendants.  This court in Staines built on that analysis in setting out further circumstances in which it considered that a section 45A Order should be made.

11.  It seems to us clear in the light of that analysis (which we emphasise was not available to the sentencing judge) that, unless the case is one where the circumstances of the offence are such that without consideration to the risk of further harm to the public the punitive and retributive element of the sentence required detention for life, a period should have been specified under section 82A.  Furthermore, it seems to us, having regard to the Practice Direction, which refers in terms to the "very exceptional case", we cannot see in the circumstances of this case, in the light of the analysis set out in the subsequent cases, that, horrific though the circumstances of this case were, the punitive and retributive elements required a whole life term.

12.  We therefore consider that this is a case where we should specify a period under section 82A.  In those circumstances, therefore, this being a reference by the Registrar, we grant leave to appeal on this issue and turn to consider the question as to what that period should be.  We have heard attractive submissions made on the appellant's behalf.  His youth has been emphasised, the fact that he had no relevant previous convictions, and the fact that he called the emergency services.  Nonetheless, it is clear from the reports to which we have referred that the appellant intended to kill the victim in this case.  The circumstances of the attack, which we have outlined without going to their more horrific aspects, were at the very highest end of the scale.

13.  Taking into account the matters to which we have referred, the early plea tendered in the case, the clear intention to kill and the very serious nature of the attack, we have come to the view that, in the circumstances, after a plea of guilty, a judge would have imposed, purely for the punitive and retributive elements, a term of 18 years.  

14.  It follows, therefore, that the period we should specify is one half of that amount, namely nine years, less the period spent on remand, which was one year five months and ten days in the regrettable circumstances to which we have referred.

15.  We wish to emphasise, as is clear from the report of Dr Collins, that the appellant continues to represent a serious danger to the public.  The fact that we have specified a period under section 82A does not mean that he will be released then.  The decision to release him will be that of the Parole Board, as advised by medical experts.  It may well be the case that he will never ever be released.