In December 2004, a young mother was brutally killed by a seriously ill young man. He was found unfit to plead and sent to a psychiatric unit where he remained for about three and a half years. It seems he then became sufficiently lucid to be deemed fit by his responsible clinician to return to the prison system. Since it was acknowledged by all the doctors that he remained serious mentally ill with schizophrenia, the prosecution did not take much persuading to accept his plea of guilty to manslaughter by reason of diminished responsibility. At sentencing the doctors did not agree as to whether his illness was of a nature and degree that warranted his detention in a hospital (which is a pre-requisite for a hospital order). Two doctors must support an order under s. 37 of the Mental Health Act 1983 and since only one did, the judge had no option but to reject the idea of a disposal under the MHA. Again, since there was little room for argument that Mr Ahmed remained very dangerous and since the judge did not consider that the killing was so very grave as to merit a life sentence, especially given recent Court of Appeal authority in R.v. Kehoe  1 Cr. App. R. (S.) 41 that discretionary life sentences should be reserved for the very gravest offences, the judge’s decision to impose an indefinite sentence of imprisonment for public protection did not seem wrong in principle. The judge took as his starting point for sentence a determinate sentence of 12 years. He then deducted one sixth for his guilty plea (something the Court of Appeal later said was an error – it should have been one-third) deducted the 3½ years he had spent in hospital and a further 15 months in custody and came to a final total of 5 years and 3 months to serve.
First appeal hearing
Mr Ahmed challenged the length of the minimum term of his IPP. Shortly before his appeal was due to be heard in April 2012, it became apparent that he had in fact been returned from prison to the very mental health facility from which he had been removed back in 2010. The Court of Appeal was urged to adjourn the hearing to enable fresh grounds of appeal to be considered since it now seemed there were realistic prospects of persuading the court that the sentence of IPP was wrong in principle since a man suffering from serious mental illness ought, in principle at least, to receive treatment rather than punishment. As the hearing had been convened the Court of Appeal adopted what they thought was a practical approach to the problem posed. They purported to allow the appeal as to the length of the minimum term and reduced the figure to 3 years and 3 months (by deducting one-third for the guilty plea rather than one-sixth as the judge had done) and adjourned the balance of the appeal to enable fresh grounds relating to the mental health issue to be formulated and presented. Shortly thereafter the Court of Appeal realised that it had no power to decide part of an appeal and adjourn the balance. Accordingly the appeal was adjourned generally.
Second appeal hearing
In due course fresh reports were prepared in which two psychiatrists stated their opinions that in fact a hospital order with a restriction order under s.41 would have been appropriate at the time of sentence and in any event were certainly appropriate by the time they examined the patient. The responsible clinician (the same man who had sent Mr Ahmed back to the prison system in 2010) did not take kindly to having his professional opinion challenged by new doctors and re-stated his opinion that at the time of the original sentence a hospital order was not justified. He did however concede that since the patient was back in a psychiatric unit and was receiving treatment for his condition that the conditions for a hospital order were now satisfied. So the hearing was scheduled.
A few days before the hearing the responsible clinician had a further change of mind. He informed the Court of Appeal that in his opinion orders under s. 37/41 were not appropriate and instead the court should exercise its little used power under s.45A of the Act. This is a provision that allows a court which has decided that a person suffering from mental illness should be sentenced to imprisonment to nonetheless make an order that rather than being taken immediately to a prison he should be transferred to a mental hospital where he could receive appropriate treatment before being returned to the prison system. This somewhat cumbersome provision seems to have been considered necessary to deal with those prisoners who suffer from a personality disorder linked to mental illness so that they do not usually meet the criteria for a hospital order but who nevertheless do require treatment from time to time. It seems that this provision was intended to deal with those persons who in the past had been treated as “technical lifers” as explained in R.v. Beatty  EWCA Crim 2359, para. 23. It was evidently thought that this provision would be more satisfactory than the administrative transfer of a prisoner who becomes mentally unwell through s.47 of the MHA 1983.
At the hearing in January 2013 the Court received the fresh evidence of the two new psychiatrists under s.23 of the Criminal Appeal Act 1968, both of whom supported the making of the hospital order under sections 37/41. The responsible clinician maintained his new stance but as is clear from paragraph 29 of the judgment it seemed that his reasons for preferring s.45A to s.37/41 had nothing to do with the treatment of the patient and was instead based on his concerns about the release provisions for someone who was in fact unlawfully in the UK in any event. Not surprisingly the Court of Appeal did not consider that this was a proper basis for their decision. Agreeing that the appellant was a man in need to treatment as a patient rather than punishment as a criminal the Court quashed the sentence of IPP and made the orders requested under ss.37/41.
The case does not lay down any new principles and indeed refers in paragraph 32 to a number of previous authorities including R.v. Beatty (see above) although unhelpfully not including their citations. Nonetheless paragraph 1 to 16 of the judgment are a useful starting point for those who are unfamiliar with this area of the law and readers will find the basic principles for dealing with cases under the Mental Health Act set out there.
The transrcipt, courtesy of Crimeline, is available here.
By Mark George Q.C., counsel for Imtiaz Ahmed.