Court of Appeal quashes IPP sentence

Fri, 04 Dec 2020

Court of Appeal quashes IPP sentence ‘hybrid order’ imposed in 2012 and replaces with Hospital and Restriction Order

In N v R [2020] EWCA Crim 1615; [2020] 12 WLUK 8; on 2 December 2020, the appeal against sentence, advanced by No5’s Philip Rule, was allowed.

The Court had reserved judgment after a day’s hearing of the appeal, at which it received oral evidence from two consultant psychiatrists examined in detail on behalf of the appellant. The Court also received fresh evidence in writing from several other psychiatrists.

The case concerned an original sentence imposed using section 45A of the Mental Health Act 1983, which allowed for the imposition of the indeterminate sentence of imprisonment for public protection, the ‘IPP’, coupled to an immediate direction that the prisoner be located within a mental health hospital for treatment. The ‘tariff’ of the IPP was set at 3 years, and long-expired.

The problem with such an order would be, and is, that once his mental health is alleviated he would face return to prison, an end to formal involvement of the mental health services and that Tribunal, and a need would then arise to satisfy a parole board too that he could be managed on release not by mental health professionals but by a supervising probation officer.

Originally the appeal was advanced by different counsel and refused permission on the papers, but the Full Court granted permission on 16 January 2020 to proceed upon the amended grounds of appeal advanced by Mr Rule.

Lord Justice Dingemans, Vice-President of the Queen’s Bench Division, giving the judgment of the Court, explains that:

This appeal against sentence demonstrates some of the practical differences between, and advantages and disadvantages of, a “hybrid order” under section 45A of the Mental Health Act 1983 (“MHA”) combining imprisonment with a hospital direction and limitation direction on the one hand, and a “hospital and restriction order” under section 37 MHA with section 41 MHA on the other hand… [1]

The Court outlined the relevant principles relating to hybrid orders and hospital and restriction orders, and the evidence it had received relating to those, at [31]-[39]. This includes:

Section 45A of the MHA permits, in effect, the combination of sentences of imprisonment with hospital and restrictions orders where the sentence is not fixed by law. The evidence before us showed that section 45A MHA orders were particularly appropriate in two situations: the first was where, notwithstanding the existence of the mental disorder, a penal element to the sentence was appropriate; and the second was where the offender had a mental disorder but there were real doubts that he would comply with any treatment requirements in hospital, meaning that the hospital would be looking after an offender (who might be dangerous) who was not being treated... [35]

The evidence …showed one practical disadvantage of returning to prison an offender who had been treated for a delusional disorder in hospital and who required to take anti-psychotic medicine. This was that many such offenders ceased to take the medication on return to prison. This was because there was no obvious advantage to the offender in taking the medication, and also because a side effect of taking the medication was that awareness of people and surroundings was suppressed, which some prisoners considered made them more vulnerable in a prison environment. Stopping taking the medication causes the offender to relapse and require further treatment… all of which could lead to a deterioration of the mental disorder of such an offender followed by a return to hospital. [36]

… If there is an indeterminate sentence to be served, such as an IPP or a sentence of life imprisonment, release will occur only once agreed by the parole board. Once the release has taken place the supervision will be by a probation officer. It is important to record that once released the effect of section 50 of the MHA “Further provisions as to prisoners under sentence” is that, by subsection (2) “a restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date”. This means that the supervision of the released offender will be carried out by the probation officer. Dr Cummings stated that the parole board did not impose conditions such as a requirement to take anti-psychotic medicine, and that a probation officer would not be able to intervene in the event of a subtle deterioration of mental state. Such an intervention would only take place in the event of the commission of further offences, by which time serious damage might have been caused to members of the public... [38]

In applying the relevant principles to the Appellant’s case the Court noted, in particular, at paragraph 44:

The fourth question to be addressed is which regime for deciding release will provide the most protection for the public. In this respect there are two real concerns about the appellant’s current sentence which have been expressed in the evidence which we have heard.

The first concern is that once the appellant gets to a position to be considered for release from hospital he will be sent to prison. Such an environment is likely to lead to a relapse of his delusional disorder because he will not take his anti-psychotic medicine, meaning that he will be returned to hospital, before being getting better and being returned again to prison. This means that he will “yo-yo” between hospital and prison for the foreseeable future.

The second concern is that when finally released from prison the appellant will not be supervised by a team of mental health experts reporting to the hospital and Secretary of State for Justice but instead by a probation officer. A probation officer will not be trained to spot the subtle signs of mental health deterioration, and if they are identified the probation officer will not have the powers to intervene to arrest any such deterioration. This is a matter of particular importance because it is now apparent that the appellant will always suffer from some form of mental disorder, but with treatment and effective management and supervision he should progress to live as risk free as is reasonably achievable in society.

The Court determined that the proper order in the Appellant’s case that would protect the public and assist in his rehabilitation and recovery is a section 37 and 41 MHA hospital and restriction order.

Philip Rule was instructed by Amy Hossack of Law24ltd.

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