Thomas Fisher [2019] EWCA Crim 1066

The appellant was charged with the murder of his mother but in light of the psychiatric evidence a plea to manslaughter was accepted. He was sentenced on the day that the manslaughter sentencing guidelines came into effect and the judge expressly applied the guideline.

The judge’s assessment that his culpability was in the lowest category of retained responsibility was unimpeachable. She did not consider there were any particular aggravating features to increase seriousness in terms of culpability.  In respect of dangerousness she, again rightly, considered that risk was dependent upon the appellant’s response to treatment for his mental condition and that the dangerousness criteria were satisfied. It was the next step of the guideline that was the issue on appeal. The defence submitted that the judge erred in imposing a life sentence with a minimum sentence to be served of 2 years with a s45A direction rather than an order with restrictions under s37 and 41.

Held: it cannot be said that the mental disorder can appropriately be dealt with by a direction under s45A, there are advantages in terms of rehabilitation for the appellant by a hospital order coupled with a s41 restriction. The appropriate sentence is a s37 order with a s41 restriction without limit of time.

“Finally, we think it is only right that we should commend the judge’s analysis under the then very new guideline. In our judgment, the error into which she was led resulted from a lack of evidence as to the difference in regimes that we have so helpfully heard… (the case of) Edwards makes very clear that consideration of an appropriate sentence in a case such as this is highly fact sensitive, and it is important that the sentencing judge is provided with appropriate evidence which will enable him or her to come to an informed decision as to whether a term of imprisonment with a s45A direction, or a hospital order under s37 with a restriction, or some other sentence is appropriate.”