Thomas Fisher [2019] EWCA Crim 1066
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In R v Thomas Fisher [2019] EWCA Crim 1066, the Court of Appeal (Lord Justice Hickinbottom, Mrs Justice Andrews and HHJ Mayo) allowed an appeal against sentence and substituted a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 for a life sentence with a section 45A hospital direction.
Mr Fisher had pleaded guilty to manslaughter by reason of diminished responsibility after stabbing his mother to death. He also admitted fraud, driving whilst disqualified, and breaching a suspended sentence. HHJ Laing QC at Lewes Crown Court had sentenced him to life imprisonment with a minimum term of two years and a section 45A hospital and limitation direction. The case was heard on 1 November 2018, the day the Sentencing Council’s Definitive Guideline for Manslaughter came into effect.
The appellant, aged 22 at the time of the offence, had a history of substance misuse, gambling and mental health difficulties after moving to the United States in 2014 for a music degree. He returned to the United Kingdom in September 2015 and his behaviour deteriorated markedly, characterised by heavy drinking, shoplifting, aggression and repeated burglaries of his mother’s home. He was made subject to a suspended sentence in respect of a burglary committed in September 2017. In April 2018, whilst staying at his mother’s home, he stabbed her once to the chest whilst she slept. He told psychiatrists that he had been experiencing paranoid delusions, hearing “screaming metal music” in his head and believed that his mother had been destroying him for years and wanted him dead. He stood watching her for some 15 minutes before killing her, then held her for hours and wrapped her body in a duvet before placing her under the bed. The following day he purchased firelighters intending to set fire to the house, though he remained at the scene when police arrived.
The Crown Court had reports from three consultant psychiatrists, Dr Anderson (instructed for the defence), Dr Joseph (instructed by the Crown) and Dr Ley (the treating psychiatrist). They agreed that the appellant suffered from paranoid psychosis, probably paranoid schizophrenia, and that although he understood the nature of his conduct and retained the ability to exercise self-control, there was substantial impairment in his ability to form a rational judgment due to paranoid delusions about his mother. They agreed that his responsibility was in the low to medium range of the spectrum and that he would not have killed his mother but for his psychotic illness. The prosecution accepted a plea to manslaughter on that basis.
The judge applied the guideline carefully. She found that the appellant’s culpability fell within the lowest category of retained responsibility, giving a starting point of seven years with a range of three to twelve years. She found no particular aggravating features. She found dangerousness established, noting that the risk of a further psychotic episode, particularly if the appellant failed to take medication or resumed drug use, meant there was a significant risk of serious harm to the public for an indeterminate period. At step four she considered whether a hospital order with restrictions or a section 45A direction was more suitable. She concluded that the best protection of the public would be by the imposition of a life sentence combined with a section 45A direction. She set a minimum term of two years (reflecting a determinate sentence after trial of six years, reduced by one third for the guilty plea). She also imposed a 12-month driving disqualification, six penalty points for driving without insurance, a five-year restraining order and a victim surcharge of £170.
On appeal, Miss Marshall QC submitted that the judge had erred in imposing a life sentence with a section 45A direction rather than a restricted hospital order. She emphasised that the appellant had no history of violence and that all the psychiatrists agreed the offence would not have occurred but for his psychotic delusion. She argued that the judge had placed undue weight on Dr Ley’s oral evidence that the average period of supervision under a section 37/41 order was five to ten years, when in fact that was an arbitrary figure and did not mean the appellant would be absolutely discharged within that period. She relied on a supplementary report from Dr Anderson and his oral evidence before the Court of Appeal, in which he explained that the appellant would likely remain in secure hospital for four to five years, then be subject to conditional discharge with rigorous conditions. An application for absolute discharge would be very unlikely within five to ten years of conditional release, and in any event was rarely granted in serious cases where chronic medication was required. She submitted that all three psychiatrists had recommended a section 37/41 order, that such an order would be substantially better for the appellant’s rehabilitation, and that it added nothing to public protection to impose a life sentence with a section 45A direction. She further submitted that the life licence exposed the appellant to recall for unrelated and possibly minor offences, rendering the sentence manifestly excessive.
The court heard oral evidence from Dr Anderson, who explained the practical differences between the two regimes. He said that a section 37/41 order allowed for escorted and unescorted leave which could be important for rehabilitation, whereas under section 45A the appellant could not leave hospital at all save in an emergency. He emphasised the advantages of the aftercare regime under a restricted hospital order. On conditional discharge, a mental health team led by a psychiatrist and social worker, together with a community psychiatric nurse and psychologist, would supervise the appellant closely and ensure compliance with medication and that his mental state did not deteriorate. Under a life licence, supervision would be by a probation officer who would be less likely to notice or elicit signs of deteriorating mental health. Recall under an undischarged section 41 restriction could only be made on the basis of a failure to comply with mental health support or collapse of mental health, whereas recall for breach of a life licence could be on wider grounds such as commission of another offence unrelated to mental health. Recall under section 41 could be made quickly by the responsible clinician and would be to hospital, whereas recall under the life licence would be made by the Secretary of State and would be to prison, at least initially, with delay in obtaining a transfer direction. Dr Anderson said that in the appellant’s case, where there was no evidence that he posed any risk to the public save by reason of his mental condition, the Parole Board would add nothing to public protection and the section 37/41 regime offered significant advantages in terms of both detention and aftercare.
The court accepted that there was considerable force in these submissions. It emphasised that the judge had found the appellant’s retained responsibility to be in the lowest category and that the two-year minimum term was clearly much less than the treatment period required in secure hospital. In those circumstances, whatever sentence was imposed, the appellant would spend the whole of that period in hospital and the punitive element had no independent force. The court was persuaded that under the guideline, even if a penal element was appropriate, the mental disorder could not appropriately be dealt with by a section 45A direction because of the advantages in terms of rehabilitation offered by a hospital order with restrictions. The court rejected the suggestion that the Parole Board would play a useful role, finding that there was no evidence that the appellant posed any risk to the public save by reason of his mental condition, and that in those circumstances the Parole Board would be bound to follow the recommendation of the clinicians and tribunal as to release. On the other hand, a hospital order with restrictions had significant benefits for the appellant’s rehabilitation. The court found that insofar as the judge had been concerned that the appellant might be absolutely discharged within five to ten years, she had misunderstood Dr Ley’s evidence, which was that an application for absolute discharge was not usually even considered until five to ten years after conditional discharge, and even then was rarely granted in serious cases requiring chronic medication. The court concluded that the life sentence did not enhance protection of the public and that a restricted hospital order would ensure that release and aftercare were properly focused on the appellant’s mental health and supervised by the responsible clinician, reducing delays in both release and recall if necessary.
The court held that the judge had erred in imposing a life sentence with a section 45A direction. It found that this was not a disposal under which the appellant’s mental disorder could appropriately be dealt with in guideline terms. The appropriate sentence and most suitable disposal was a section 37 hospital order with a section 41 restriction without limit of time. The court revoked the life sentence and all other sentences of imprisonment and substituted the hospital and restriction orders. It made no separate penalty in respect of the other offences or the breach of the suspended sentence. The 12-month driving disqualification was left in place as appropriate to a hospital order, but the six penalty points for driving without insurance were revoked under section 44 of the Road Traffic Offenders Act 1988. The victim surcharge of £170 was also revoked as it did not apply to a hospital order.
In short, the Court of Appeal held that where an offender’s culpability is in the lowest category, the minimum term substantially shorter than the treatment period, and there is no evidence of risk to the public save by reason of mental disorder, a restricted hospital order rather than a life sentence with a section 45A direction is the most suitable disposal where the former offers significant advantages in terms of rehabilitation and aftercare without diminishing public protection.