Beatty v R [2006] EWCA Crim 2349

[2006] EWCA Crim 2349Case No 200503140 A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM CROWN COURT AT BIRMINGHAM
POPPLEWELL J.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/10/2006
Before
LORD JUSTICE SCOTT BAKERMR JUSTICE JACKMR JUSTICE MITTING
Between
David William BeattyAppellantThe QueenRespondent
Edward Fitzgerald Q.C. and Paul Taylor (instructed by Scott-Moncrieff, Harbour and Sinclair) for AppellantTim Raggatt Q.C.(instructed by The Crown Prosecution Service) for RespondentHearing Hearing date: 5 September 2006
Judgment
[1]This is a reference by the Criminal Cases Review Commission on sentence under section 9 of the Criminal Appeal Act 1995.[2]On 15 March 1991 the appellant, David Beatty, was sentenced to life imprisonment. It was a discretionary life sentence under the statutory regime then in place. The tariff is said to have been 8 years, but that has not been confirmed. The appellant had earlier pleaded guilty to rape, kidnapping and making threats to kill.[3]The sentencing judge in the Crown Court at Birmingham was Popplewell J. It is plain from his sentencing remarks that the doctors originally had in mind that a hospital order would be appropriate. Indeed, an interim order had been made under section 38 of the Mental Health Act 1983 (the 1983 Act) so that the appellant could be assessed.[4]Popplewell J. said expressly that had a hospital order been appropriate it would have been the most appropriate disposal. However, the evidence before the judge showed that it was not. The judge had no power to make a hospital order unless the statutory conditions were met. That required the supporting evidence of two appropriately qualified psychiatrists, one of whom had to give evidence orally.[5]What the judge had, was the evidence of Dr Strickland, who said the appellant’s condition was not treatable. This opinion appears to have come as something of a surprise. Certainly it came as a severe shock to the appellant. The judge had no option but to pass an indeterminate sentence. He said:
“Above all I have to bear in mind the danger that you present to the general public. It is expressed by Dr Strickland in his report in 1990, when he described you as being an extremely and very dangerous man who constituted a grave and immediate danger to the public. In his most recent report he expresses the view that this was a very serious offence, and you must be considered to be a dangerous man. I have to bear in mind that in 1976 you committed an offence of rape on a small child, for which a hospital order was made.”
The facts.[6]We turn to the facts of the index offence and the earlier 1976 offence. In 1990, the appellant (then aged 33) was married and working as a mortuary assistant at the East Birmingham Hospital. Whilst working at the hospital, he met a 17 year old girl (the complainant) with whom he formed a relationship. He subsequently left his wife and in April 1990 the appellant and the complainant went on holiday together. However, following the holiday their relationship ended. The appellant refused to accept that the relationship was over and on 4 May 1990 he telephoned the complainant. She made it clear to the appellant that she did not want to get back together with him. The appellant then went out and bought a replica revolver and 50 rounds of blank ammunition.[7]At approximately 16.45 the appellant arrived at the hospital mortuary office where he found the complainant working. He told her that he wished to resume their relationship following which he put her against one of the chairs and threatened her with the revolver. He showed her the rounds of ammunition inside the revolver causing her to believe that the weapon was real. The appellant then led the complainant to his car at gun point. Once inside the car, he threatened her further with a stanley knife and then drove the car out of Birmingham. During the course of the journey he subjected her to physical violence. The complainant told the appellant that if he did not turn the car round and take her back she would jump out. The appellant then agreed to turn round and at that point stopped the car. However, instead of turning round he threatened the complainant again with the stanley knife and placed a pair of handcuffs on her wrists. He then drove to an area near Nottingham where he stopped the car again. He led the complainant out of the car across a field and into a remote wooded area. He stripped her naked and forced her to the ground. He positioned the revolver on the ground so that it was pointing towards her genitals and then raped her. After the incident, he allowed her to get dressed and they walked back to his car. On the way back to the car, the complainant tried to take the revolver from the appellant. However, he pulled it away from her and told her that he was going to shoot her. He then fired the revolver several times into the air as if it were a genuine firearm.[8]Several days later the complainant reported the incident to the medical secretary at the East Birmingham Hospital, following which the appellant was arrested and charged. In interview he accepted that he had hit the complainant and threatened her with the revolver and the stanley knife but stated that he and the complainant had had consensual sexual intercourse.[9]In 1976, aged 20, in Northern Ireland the appellant pleaded guilty to attempted murder, wounding with intent to cause grievous bodily harm, rape and common assault. A hospital order was made and he was sent to Broadmoor.[10]At the time of the offences he had fantasies of doing something outrageous. He dressed in black, including a black balaclava and pretended he was a member of the I.R.A. He went into the mountains and into someone’s house where there was a young boy whom he locked in a cupboard. Then he abducted an 8 year old girl who he took into the hills, where he raped her and stabbed her twice before leaving her for dead. Mercifully she survived and made, so it is said, a complete physical recovery. The appellant was made the subject of a hospital order under section 60 of the Mental Health Act 1959, but for some reason no restriction order was made in respect of his discharge. After 6 or 7 years in Broadmoor he was transferred to spend 1 year in Eastdale Unit. He was then discharged to a hostel in Birmingham. Thereafter, he remained unsupervised in the community.[11]The risk of subsequent relapse was obviously not foreseen and any future Mental Health Review Tribunal considering the possibility of the appellant’s release into the community will need to ensure that lessons have been learned from what tragically proved to be an error in 1985. Sentence and subsequent history.[12]Following the appellant’s pleas of guilty in November 1990 an interim hospital order was, as we have said, made under section 38 of the 1983 Act. This was based on the evidence of Dr Strickland and Dr Bond. Their opinion was that he was suffering from a longstanding personality disorder. Dr Strickland described him as suffering from a significant degree of personality disorder amounting to a psychopathic disorder as defined in the 1983 Act. Dr Bond agreed he was suffering from a psychopathic disorder within the meaning of the 1983 Act. He described the condition as “a persistent disorder or disability of mind which results in abnormally aggressive and seriously irresponsible conduct.” The situation was complicated by an underlying depressive illness.[13]The question was whether the appellant’s psychopathic disorder was treatable, for unless it was the conditions for making a hospital order were not met and the judge, as in the event happened, could not make one. The medical evidence put before Popplewell J. at the conclusion of the interim assessment indicated it was not.[14]This case has been referred by the Criminal Cases Review Commission for the court to consider afresh the sentence because, so it is submitted, contrary to the evidence before Popplewell J. the appellant’s condition was indeed treatable.[15]At the time of sentence in March 1991 the judge had an opinion from Dr Strickland that a hospital order should not be made. He said in his report:
“Given the amount of treatment input he has had in the past, and our ability fully to comprehend his latest offence, it was felt that we could not with certainty come to the opinion that Mr Beatty was treatable, as defined in the Mental Health Act 1983. Mr Beatty himself expressed a high degree of motivation to receive treatment here, although part of this seemed to be based upon the fact that his wife was visiting him here regularly and it appeared that she was going to be more accepting of him were he to be in hospital rather than prison. Our principal concerns were that we would be left with a man on whom we could make little psychological impact, and as such he would remain in hospital forever.”
[16]Among the other material before the judge was a report from Dr Rimmer. He too reported that the appellant was suffering from psychopathic disorder but said there was insufficient evidence to suggest that his condition was treatable and he therefore made no medical recommendation.[17]In consequence the judge had no option but to pass a life sentence. The appellant sought leave to appeal. His renewed application came before the Full Court presided over by Steyn L.J. on 30 April 1993. There were further medical reports. Dr Strickland had assessed the appellant again in May 1992. He said the appellant suffered from a severe disorder of personality amounting to a psychopathic disorder. He added:
“It is also my opinion that it is in the nature of this disorder that despite his wish for treatment he would not prove amenable to treatment and, therefore, I have been unable to recommend his admission to hospital.”
Dr Bond had reported in December 1991 (just 9 months after sentence):
“However, if his mental condition continues to deteriorate, then I would hope that eventually it would be possible to arrange for his transfer to a psychiatric hospital for treatment in conditions of maximum security under the terms of section 47/49 of the Mental Health Act 1983.”
His report was supplemented by a letter to the Criminal Appeal Office in which he said:
“If and when this case comes to appeal, I strongly recommend that consideration should be given to making Mr Beatty the subject of a hospital order with restrictions under the terms of section 37/41 of the Mental Health Act 1983, in substitution for his life sentence. Again, this course of action would require the approval of a Consultant Forensic Psychiatrist from Ashworth Hospital, the S.H.S.A and the admissions panel. Obviously, at this stage, an assessment from Dr Ian Strickland would help to clarify whether there is any prospect of Mr Beatty being offered treatment in Ashworth Hospital, either under section 47 or section 37 of the Mental Health Act. I would be happy to comment further on this case in the light of any recommendations received from Dr Strickland.” “However, if his mental condition continues to deteriorate, then I would hope that eventually it would be possible to arrange for his transfer to a psychiatric hospital for treatment in conditions of maximum security under the terms of section 47/49 of the Mental Health Act 1983.” “If and when this case comes to appeal, I strongly recommend that consideration should be given to making Mr Beatty the subject of a hospital order with restrictions under the terms of section 37/41 of the Mental Health Act 1983, in substitution for his life sentence. Again, this course of action would require the approval of a Consultant Forensic Psychiatrist from Ashworth Hospital, the S.H.S.A and the admissions panel. Obviously, at this stage, an assessment from Dr Ian Strickland would help to clarify whether there is any prospect of Mr Beatty being offered treatment in Ashworth Hospital, either under section 47 or section 37 of the Mental Health Act. I would be happy to comment further on this case in the light of any recommendations received from Dr Strickland.”
[18]Steyn L.J., giving the decision of the court referred to the new material from Dr Bond and Dr Strickland. He said it was clear that Dr Bond took the view that a hospital disposal was a desirable one but that he also took the view that the appellant was a dangerous man. He went on:
“Dr Strickland’s report, which is dated 9 July 1992, says that the applicant does not suffer from mental impairment, or mental illness as defined in the Mental Health Act 1983 but that he does suffer from a severe disorder of personality, a psychopathic disorder. He expresses the view that he would not be amenable to treatment. The upshot of these two reports together is that there is no material before this court on which the court could possibly substitute a hospital order. The statutory preconditions are not satisfied.”
He concluded by saying that in the court’s judgment a perfectly proper sentence had been imposed and that the court was therefore bound to dismiss the application.[19]Following the rejection of the appellant’s application for leave to appeal against sentence there appears to have been concern in a number of quarters that he was not in hospital. The appellant’s counsel, Mr Millington, wrote to the medical director at Broadmoor mentioning these concerns. It was agreed that the appellant should be assessed by a Broadmoor psychiatrist. He was seen by Dr Meux who recommended a further trial of treatment under sections 47/ 49 of the 1983 Act. He reported:
“There is no doubt that he is a formidable treatment prospect….I find it difficult to firmly say that he is not currently amenable to treatment or that treatment would not prevent a further deterioration in his condition. I believe that he currently deserves a further trial of treatment in hospital. If this were unsuccessful he could, of course, be returned to a custodial setting should that be deemed appropriate, although he may resist this including behaviourally. After a period of eight years in Broadmoor Hospital he appears to have managed for six years in the community with no statutory supervision, during which time he married, held employment and apparently avoided alcohol abuse. This past apparent ability to respond to treatment needs to be further capitalised upon.”
[20]On 9 March 1994 the appellant was admitted to Broadmoor Hospital as a transferred patient under sections 47/49 of the 1983 Act. His mental condition was categorised as psychopathic disorder.[21]At a case conference in June 1994 the appellant mentioned difficulties about talking about his history of sexual abuse. Further input was sought from a psychologist and a psychotherapist. At a case conference in February 1996 there was universal agreement that the appellant should remain in hospital for further treatment and that long term psychotherapeutic work was required. There followed encouraging signs that he was amenable to treatment. ‘Technical lifer’ status.[22]An important event occurred on 11 August 1997. The appellant was then granted what is known as ‘technical lifer’ status. The basis for this decision is set out in a letter from the Home Office of 14 August 2002. It records:
“Following Mr Beatty’s 1994 admission to Broadmoor, we were advised that there were key issues arising from his sexual abuse that were being revealed to clinicians for the first time. We are satisfied that these issues were significant in understanding Mr Beatty’s offending and clarifying his treatability. We further considered that this new information was sufficient to cast doubt on the medical evidence at trial.”
[23]A helpful summary in relation to ‘technical lifer’ status is to be found in the ninth edition of the Mental Health Act Manual by Richard Jones at p277. A ‘technical lifer’ is a person who, although sentenced to life imprisonment is treated as though he had originally been made the subject of a hospital order with a restriction order under sections 37 and 41 of the 1983 Act. ‘Technical lifer’ is a non statutory status, based on an administrative process entirely within the discretion of the Home Secretary. In assessing an application for ‘technical lifer’ status, consideration is given to whether there is reason to believe the court’s decision to impose a life sentence rather than a hospital order was made because the sentencing court has prevented from making a hospital order by reasons beyond its control, such as:• the unavailability of a suitable hospital bed;• the lack of provision of proper clinical information to the court;• medical reports that in hindsight do not appear to have recorded accurately the patient’s mental state at the time of the offence;• where a mentally disordered offender should have, but refused, to plead guilty to manslaughter on the ground of diminished responsibility and was in the result convicted of murder (for which a life sentence is mandatory).”[24]If the Secretary of State considers that there is reason to believe that but for such reason the sentencing judge would have imposed a hospital order, with a restriction order without limit of time, he will refer the matter to the trial judge and the Lord Chief Justice for consultation. Following that consultation, and taking the recommendations of the trial judge and the Lord Chief Justice into account, the Secretary of State may exercise his discretion to grant a person ‘technical lifer’ status.[25]It is not the practice of the Secretary of State to refer every request for ‘technical lifer’ status for judicial consideration. He only does so where it is clear either that the court was unable to make a hospital disposal, or where there is clear subsequent evidence which might have altered the court’s decision, and there are grounds to believe that the trial judge’s decision would have been different had that evidence been taken into account. The Secretary of State may take the view, upon consideration of the relevant information, that there is no reason to suggest that the sentencing judge would have imposed a hospital order, in which case he does not consult the judiciary.[26]In R v Secretary of State for the Home Department ex parte Williams, 21 June 1994, unreported the court said:
“The effect of being classified as a ‘technical lifer’ is that the patient is treated, for the purposes of discharge, as though a hospital order under section 37 and a restriction order under section 41 of the 1983 Act had been made instead of the imposition of a sentence of imprisonment. He is treated with a view to rehabilitation and eventual release direct from hospital into the community. His case will not be referred to the Parole Board and he will not be released on life licence.”
[27]The Secretary of State has, or had, an equivalent system for determinate sentence provision but it is of no relevance to the present appeal. A ‘technical lifer’ can be discharged from hospital in three possible ways. Each can be initiated under the 1983 Act only by the Home Secretary. They are:
“(i) a conditional or absolute discharge under section 42(2); (ii) a discharge made under section 50(1)(b); (iii) through the operation of section 74(2).”
[28]Following the grant of ‘technical lifer’ status the appellant continued to make good progress and in October 2001 was moved from Broadmoor to Chadwick Lodge, a medium secure unit, where he remains. Fresh evidence.[29]We were invited to consider the following fresh written evidence.• Dr Meux, report of 31 January 2005.• Dr Exworthy, reports of 24 October 2002 and 18 February 2004.• Dr Bond, report of 14 June 2006.• Dr Sen, report of 4 September 2006.[30]Additionally, the court heard oral evidence from Dr Exworthy and was provided with a file containing various other reports and medical records relating to the appellant. Each of these four psychiatrists is of the opinion that the appellant’s condition is treatable. Dr Sen speaks only of the position since October 2001 when the appellant was transferred from Broadmoor to Chadwick Lodge, but the other three consider he has been treatable since the life sentence was passed upon him. The progress the appellant has made since 1991 amply supports this view. Dr Exworthy thinks the case conference reports prior to sentence illustrate some confusion within the team whether the appellant was indeed untreatable. He thought it significant that Dr Strickland seemed to stand in isolation amongst his peers in finding the appellant was not treatable. Dr Meux points out that Dr Strickland had expressed a lack of certainty about the appellant’s treatability whereas the statutory test in section 37(2)(a)(1) of the 1983 Act is whether the treatment is likely to alleviate or prevent a deterioration of his condition. Dr Meux observes that certainty in relation to treatability is rare, not least because it depends on predicting an individual’s future mental state and behaviour and interaction with a not fully predictable therapeutic environment.[31]Dr Meux regards it as unfortunate that the appellant’s hints of sexual abuse given as early as when he was at Ashworth Hospital, were not sufficiently explored. They were later regarded as highly relevant to the granting of his ‘technical lifer’ status. A more lengthy and detailed section 38 assessment might have increased the chances of elaborating appropriately on issues relevant to treatability with the result that the court might have been better informed.[32]Dr Meux concludes by pointing out that the appellant’s subsequent treatment in Broadmoor Hospital from 1994 has demonstrated that he can respond to treatment. He has shown that he can develop trusting therapeutic relationships wherein he can share information with his carers, including in relation to complex emotional issues, and then therapeutically address them and make progress. There was clear evidence that detention in hospital had both alleviated and prevented a deterioration of his mental disorder.[33]Dr Bond had, of course involvement in the appellant’s case before the imposition of the life sentence. Having read Dr Exworthy and Dr Meux’s reports he expressly agrees with their opinions. It is his view that the appellant probably was treatable within the meaning of the 1983 Act. He says he was concerned about the final decision not to recommend a disposal under sections 37/41 of the 1983 Act. He says this decision was made after a relatively short period of assessment in Ashworth Hospital.[34]The fresh evidence was all one way; the appellant was treatable in 1991.[35]Mr Timothy Raggatt Q.C., who has appeared before us for the prosecution, did not challenge any of the fresh evidence which we heard de bene esse. He had very little to ask Dr Exworthy in cross-examination save to elicit that a good deal had emerged from the appellant himself since his application for leave to appeal against sentence was refused. There was no fresh evidence from Dr Strickland; nor has he been asked to comment on any of the fresh evidence adduced on behalf of the appellant. We were told he is no longer in practice.[36]Mr Edward Fitzgerald Q.C., who has appeared on behalf of the appellant, submits that all along there were indications that the appellant was treatable. First, he was treated over nine years at Broadmoor from 1976 to 1985. His condition improved to the extent that he survived in the community for over five years at a time when he was not subject to after-care or supervision. Secondly an interim hospital order was made precisely on the basis that the appellant might well require treatment for his severe personality disorder. Third, after admission to Ashworth hospital his assessments were neither, consistent, unanimous nor clear; there were indications that he was treatable. Fourth, the opportunity for an extended period of assessment was not taken up and pointers to more profound problems, i.e. a history of sexual abuse in childhood, were not followed up. A much more thorough assessment was made after his transfer under section 47.[37]Mr Fitzgerald also has formidable criticisms of Dr Strickland’s conclusions on treatability. First, he put the test too high:
“It was felt that we could not with certainty come to the conclusion that Mr Beatty was treatable.”
Second, he was far from ruling out the possibility of treatability. Third, he did not have full information about the appellant’s history of childhood sexual abuse and fourth he seemed to stand alone in his conclusion that the appellant was not treatable.[38]In order to establish that the criteria in sections 37/41 are currently met the appellant relied on the oral evidence of Dr Exworthy (as well as his written report) and the written evidence of Dr Sen. We initially had some concern that Dr Exworthy has not seen the appellant since early 2004. However we are satisfied the statutory criteria are met. Furthermore, Dr Sen has been the appellant’s responsible medical officer for the past five years. A bed is available for him at Chadwick Lodge Hospital where he continues to be detained.[39]Before leaving the history of the case we should mention that the court was provided with a copy of the most recent Mental Health Review Tribunal decision of 13 March 2006 directing that the appellant should not be discharged. The tribunal’s reasons refer to the good progress that the appellant has made but point out that there are still problems that need to be addressed.[40]Section 23(1) of the Criminal Appeal Act 1968 provides that the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice receive any evidence which was not adduced in the proceedings below. Section 23(2) requires the court in considering whether to receive such evidence to have regard in particular to: a) whether the evidence appears to the court to be capable of belief; b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.[41]The thrust of the appellant’s case is that Dr Strickland got it wrong. Mr Fitzgerald submits that all four criteria are met. The evidence is plainly capable of belief; it would have been admissible before Popplewell J.; there is a reasonable explanation for the failure to adduce it and it affords a ground for allowing the appeal. We agree with his submission and Mr Raggatt has not seriously argued otherwise. There remains the overriding criterion whether admission of the evidence is necessary or expedient in the interests of justice. We are satisfied that it is. Mr Raggatt is not so much concerned with the facts of this case as with the consequences for other cases and the floodgates argument. He points out that the exercise of hindsight is very easy where psychiatric issues are concerned and at that the 1983 Act makes express provision for transfer of prisoners to hospital. The court, he submits, should guard against retrospective diagnosis. Mr Fitzgerald’s response is that this is not a case of retrospective diagnosis at all; the problem was caused by a faulty diagnosis. In truth the appellant was treatable all along. In our view the evidence that we heard de bene esse should be admitted and accordingly we have admitted it. Should the appeal be allowed?[42]Mr Raggatt submits that for most, if not all, practical purposes the appellant is in the same position as if a hospital order with a restriction order had been made. Section 47 is in comparable terms to the court’s powers under section 37 of the 1983 Act. It gives the Secretary of State power to direct a prisoner’s transfer from prison to hospital if he is satisfied by specified reports that the prisoner suffers from a relevant condition and, in a case such as the appellant’s, that the condition is amenable to treatment. He can exercise that power if he thinks, having regard to the public interest and all the circumstances, it is expedient to do so. A transfer order under this section has the same effect as a hospital order.[43]Section 49 gives the Secretary of State power, where he makes a transfer direction under section 47 to make a further direction called a restriction direction which is in effect a restriction order under section 41.[44]These powers are important powers that allow the transfer of prisoners to hospital whose mental condition dictates that they should be in hospital rather than in prison but who, for whatever reason, did not meet the criteria at the time of sentence.[45]Why, it is argued vary the appellant’s sentence when Parliament has provided by sections 47 and 49 to put him in a similar position to that in which he would have been if the judge had imposed a hospital order with a restriction rather than a life sentence in the first place? Why should, the appellant be treated any differently from a prisoner who has become mentally ill during the course of his sentence.[46]Mr Fitzgerald has a number of answers. In the first place, he submits, there is now ample evidence that at the time of sentence the statutory conditions were met for the imposition of a hospital order, and that where the conditions are met a hospital order ought to be made. The issue was treatability. The fresh evidence on this is now all one way. None of the witnesses was cross-examined to suggest the appellant was not treatable at the time of sentence. Leave was not sought to call fresh evidence from Dr Strickland. Further, events have amply shown that the applicant was indeed treatable. Considerable progress has been made.[47]There is clear authority that where the conditions for a hospital order are met at the time of sentence a hospital order rather than a discretionary life sentence should be imposed, see Mitchell [1997] 1 Cr App R (S) 90 and Hutchinson [1997] 2 Cr App R (S) 60. This is so even where the information establishing that the conditions for making a hospital order comes to light after the imposition of the life sentence, see De Silva (1994) 15 Cr App R (S) 296. This situation is to be distinguished from that in which mental illness supervenes after the sentence has been imposed. In such a case administrative transfer by the Secretary of State under section 47 is the correct course, see Castro (1985) 7 Cr App R (S) 68.[48]It is important however to note that there is a significant distinction between sections 37 and 47 in that under section 37 the offender is released to freedom when the doctors think he has been cured (subject to any restriction order under section 41). But under section 47 if the offender is cured of the illness he is returned to prison to serve the remainder of his sentence.[49]Mr Fitzgerald submits that there is a parallel with cases in which the Court of Appeal quashes a conviction for murder and substitutes one for manslaughter by diminished responsibility on the ground that the court is satisfied the nature of the appellant’s mental condition was not recognised at the time of conviction but is subsequently in the light of fresh evidence on appeal, see e.g. Borthwick [1998] Crim LR 274, Weekes [1999] 2 Cr App R 520 and Hobson [1998] Cr App R 31. That, however, is a different situation where the issue goes to conviction rather than sentence. Further, this court has, on a number of occasions expressed the need for caution in assessing fresh medical evidence relating to diminished responsibility when the defence was not run at the trial. Lord Bingham C.J. made these observations in R v Criminal Cases Review Commission ex parte Pearson [1999] 3 All ER 498, 517E: “Wisely and correctly, the courts have recognised that the statutory discretion conferred by s23 cannot be constrained by inflexible, mechanistic rules. But the cases do identify certain features which are likely to weigh more or less heavily against the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision making faculties are unimpaired not to advance before the trial jury a defence known to be available; evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence; expert evidence based on factual premises which are unsubstantiated, unreliable or false, or which is for any other reason unpersuasive. But even features such as these need not be conclusive objections in every case. The overriding discretion conferred on the court enables it to ensure that, in the last resort, defendants are sentenced for crimes they have committed and not for psychological failings to which they may be subject.” – my emphasis.[50]Section 11(3) of the Criminal Appeal Act 1968 provides that, inter alia, the Court of Appeal can quash a sentence if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below and in place of it pass such sentence or make such order as the court below had power to pass or make when dealing with him for the offence.[51]Plainly the subsection is sufficiently wide to permit the court to re-sentence the appellant on information placed before it which was not put before the sentencing judge. As Beldam L.J. pointed out in Sawyer, 16 December 1993, unreported, the subsection gives the court an opportunity to review the sentence, its effect on the appellant, and to consider whether having regard to the circumstances which were then before the court and which have happened since, it is necessary in the interests of justice for the court to confirm a sentence of the length imposed. He went on:
“Without regarding the judge’s sentence as wrong we believe that in the interests of justice we can review the sentence in the light of the circumstances as they now are.”
Such an approach clearly allows the Court of Appeal to substitute a sentence on the basis of psychiatric and other evidence coming to light after the sentence was passed.[52]Mr Fitzgerald relies strongly on the fact that ‘technical lifer’ status was granted to the appellant in August 1997. The appellant had already been transferred to Broadmoor under sections 47 and 49 of the 1983 Act In March 1994. ‘Technical lifer’ status was only granted after consultation with the trial judge and the Lord Chief Justice to ascertain whether a hospital order would have been made had the sentencing judge been in a position to do so. It will be recalled that Popplewell J. in his sentencing remarks had indicated that he would have made a hospital order had the criteria been met.[53]If the decision is made that a transferred prisoner should be treated as a ‘technical lifer’, the Home Office guarantees: a) that the ‘technical lifer’ will not return to prison when he is well enough to leave hospital; b) that his tariff date will no longer be taken into consideration in deciding whether he is entitled to be discharged into the community; c) that when he leaves hospital, will go out on absolute or conditional discharge under the Mental Health Act rather than on life licence.[54]A life sentence prisoner who is not eligible to be treated as a ‘technical lifer’ will remain detained in hospital until at least his tariff date, even if he would have been discharged into the community if he had been detained under sections 37/41.[55]A ‘technical lifer’ who is discharged on a conditional discharge has the opportunity to apply to the Mental Health Review Tribunal or the Home Secretary for his conditional discharge to be made absolute. A transferred prisoner discharged on life licence will remain on licence for life.[56]A ‘technical lifer’ on conditional discharge cannot be recalled to prison as he is not on life licence and can only be recalled to hospital if he meets the admission criteria for compulsory treatment under the Mental Health Act.[57]In short, the Secretary of State undertakes to treat a ‘technical lifer’ for all purposes as if he had been detained under sections 37/41 of the 1983 Act and to abide by any decision of the Mental Health Review Tribunal.[58]‘Technical lifer’ status has now been abolished. On 2 April 2005 Baroness Scotland of Asthal Q.C., Minister of State at the Home Office, announced in the House of Lords that henceforth life sentence prisoners who had been transferred to psychiatric hospital for treatment would no longer be considered for ‘technical lifer’ status. All life sentence prisoners would have their future release determined by the Parole Board and be subject to life licence on release. She said that the decision that had been taken in the light of the judgment of the European Court of Human Rights in Benjamin and Wilson v The United Kingdom (2003) 36 EHRR 1 which had found that the ‘technical lifer’ policy was in breach of Article 5(4) of the European Convention on Human Rights. The announcement did not affect those who had already been granted ‘technical lifer’ status or the consideration of any pending applications. However, no new applications would be considered after 2 April 2005.[59]In referring the present appeal the Commission point out that while the effect of the applicant’s ‘technical lifer’ status may be identical to a hospital order there are potential benefits both for the appellant and the criminal justice system for his life sentence to be replaced with a hospital order. These are: i) the unequivocal placement of someone who is mentally disordered into a regime of expert medical care from which he can progress, if it becomes appropriate, into a less secure regime under proper supervision and safeguards; ii) the substitution would reflect the change of approach signalled by the decision in Benjamin and Wilson and continued in the Home Office decision to make no further use of ‘technical lifer’ status. Further, it should be noted, the making of an order under sections 37/41 would not preclude the applicant from being returned to hospital under the 1983 Act should his behaviour cause any anxiety to those monitoring his condition subsequent to any release. Conclusion.[60]There is in our view an important distinction to be drawn between a life sentence prisoner who develops a mental illness or disorder post sentence and who is transferred to hospital under sections 47 and 49 of the 1983 Act and one whose condition was such at the time of sentence that the judge should have made a hospital order with a restriction under sections 37 and 41 of the 1983 Act. This distinction was recognised by the device of the grant of ‘technical lifer’ status which, for reasons we have explained is no longer granted. The present case falls fairly and squarely with the latter category. It is not as if some treatment or drug has come into existence subsequently that was not available or known about at the time of sentence in 1991. If Popplewell J. had had the evidence before him that we have had it is inevitable that he would have made a hospital order with a restriction. Indeed he expressly said when passing sentence that it would have been the most appropriate disposal. He did not make such an order solely because he did not have evidence that his condition was treatable within the meaning of section 37. There is now overwhelming evidence that it was.[61]Bearing in mind the criteria for granting ‘technical lifer’ status we think it is very difficult to envisage circumstances where, ‘technical lifer’ status having been granted, the court would not substitute a hospital order with a restriction for a life sentence. ‘Technical lifer’ status is only afforded if the prisoner is treatable.62. It is obviously important, perhaps even more so now that ‘technical lifer’ status is no longer granted, that those who should have been the subject of a hospital order under sections 37/41 rather than life imprisonment should have the position rectified on appeal. That said, however, the court will always scrutinise with great care cases in which an appellant seeks to rely on psychiatric evidence directed to his mental state at the date of sentence that was not advanced at the time. Each case is likely to be decided on its own specific facts.63. The appeal against sentence is allowed. The life sentence will be quashed and will be substituted with a hospital order with a restriction under sections 37/41 of the 1983 Act.