HOSPITAL ORDERS – Baja [2025] EWCA Crim 967

R v Baja [2025] EWCA Crim 967 concerned an appeal by His Majesty’s Solicitor General against a hospital order imposed following conviction for rape. The Court of Appeal (William Davis LJ, judgment approved by Thornton J) quashed the hospital order on the ground that it was unduly lenient and that the offender had been sentenced on a false basis, substituting an extended determinate sentence of five years’ custody with an extended licence period of three years.

The appellant had been convicted of rape after trial. Some thirteen months later he was sentenced to a hospital order under section 37 of the Mental Health Act 1983, without a restriction order under section 41. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The applicable test, taken from Attorney-General’s Reference (No. 4 of 1989) [1990] 1 WLR 41, is whether the sentence falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.

The offence took place at a party. The victim had walked away from Mr Baja after he made derogatory comments. He followed her outside and, whilst she was crouched down, ripped her jeans and demanded to know why his friend got to have sex with her when he “got nothing”. She shouted at him to stop and he replied “no, it’s fine”. In police interview Mr Baja denied that intercourse had taken place, claiming he had merely consensually touched and kissed the victim. Forensic examination revealed his DNA deposited on the victim’s jeans. Mr Baja claimed this was by secondary transfer, as he had masturbated on a sofa where the victim had been sitting. At trial Mr Baja did not give evidence but the victim was cross-examined on the basis that consensual sexual intercourse had occurred. After conviction, however, Mr Baja’s account in pre-sentence and psychiatric reports reverted to the claim that only limited physical contact without intercourse had taken place.

The sentencing judge received psychiatric evidence that Mr Baja was experiencing manifestations of a psychotic state at the time of the offence. That opinion was based on nothing more than the fact that he had a psychotic illness which had begun two years previously and which would have been expected to deteriorate with time. Mr Baja had not given any account of the events relating to the victim. The sentencing judge made no finding on culpability. One expert suggested that, given the uncertainty about the link between mental illness and the offence, an order under section 45A of the 1983 Act might be considered, although the Court of Appeal observed that this was not a matter on which an expert should opine, since the distinguishing feature of such a sentence is punishment in the form of imprisonment. The judge was not left with a clear understanding of the release provisions applicable to a hospital order under section 37.

After the hospital order was imposed Mr Baja was detained in hospital for twelve weeks. Continuous assessment by the treating clinician during that period demonstrated no evidence of psychosis and no change was made to his medication. It was concluded that Mr Baja did not have a mental disorder that made it appropriate for him to be detained in hospital for treatment.

The Court of Appeal held that the judge had been required to consider and apply the principles in R v Vowles [2015] EWCA Crim 45 and R v Edwards [2018] EWCA Crim 395, as well as the Mental Health Sentencing Guideline. A sentencing judge must make findings on culpability. The guideline emphasises that culpability will only be reduced if there is a sufficient connection between the offender’s impairment or disorder and the offending behaviour. The guideline sets out a series of questions to assist in determining culpability, including whether at the time of the offence the impairment or disorder impaired the ability to exercise appropriate judgment, to make rational choices, or to understand the nature and consequences of actions; whether it caused disinhibited behaviour; and whether there are other factors related to the impairment or disorder which reduce culpability, such as failure to take medication. The court emphasised that although expert evidence may be valuable, a sentencing judge is not bound to follow it and should give reasons if declining to do so.

The court found that in this case of serious sexual offending there was no real account by Mr Baja, and no evidence from the factual circumstances or treatment after sentence, showing any connection between the mental health disorder and the offence. Without such a nexus, and in the absence of judicial determination of that connection, the sentencing guideline had not been adhered to. The court observed that an interim hospital order under section 38 of the 1983 Act could have been a solution, particularly because there was no evidence before the sentencing court from any clinician at the hospital where a bed was to be made available. The court noted that although more than twelve months had elapsed since conviction there was no requirement for the judge to make a final determination on sentence, and that the guideline indicates that when requested by clinicians wanting to undertake an inpatient assessment, for offences punishable with imprisonment, courts may wish to consider making an interim hospital order.

The court further held that it is for the judge to determine the extent to which punishment is required; this was not a matter on which any psychiatrist was entitled to opine. Similarly, it is for the judge to determine what is required for protection of the public, although psychiatric reports can assist by ensuring that the judge understands the release provisions applicable and the potential length of disposals in practice. The court noted that offenders detained under section 37 hospital orders are often discharged in less than twelve months; that the duration of the order is in the first instance six months, during which the offender can be discharged by the responsible clinician and subsequently on application to a mental health tribunal or the hospital managers or by the responsible clinician. The court found it surprising that, given that this was a case where there was a risk of Mr Baja committing further offences if set at large, making it necessary to protect the public from serious harm, a restriction order under section 41 had not been made. The court took the view that the offender’s lack of previous convictions and academic potential were of minimal relevance, as he presented a high risk of serious harm to women.

In short, the appeal was allowed because the sentence was unduly lenient and had been imposed on a false basis, there being no sufficient nexus demonstrated between the mental disorder and the offending and no finding on culpability by the sentencing judge.

Vowles and Others [2015] EWCA Crim 45, [2015] 1 WLR 5131, [2015] 2 Cr App R (S) 6
TLS [2018] EWCA Crim 395