Hempston, R v [2006] EWCA Crim 2869

Case No 200600538/A3[2006] EWCA Crim 2869
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice
Strand
London, WC2
MONDAY, 30th October 2006
B E F O R E:
LORD JUSTICE MAY
(VICE PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE DAVID CLARKE
MR JUSTICE TEARE
Between
R E G I N ACrown-v-
Between
DAVID JOHN HEMPSTON
REFERENCE BY THE CRIMINAL CASES REVEIW COMMISSIONUNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 2005Computer Aided Transcript of the Stenograph Notes ofA Merrill Communications CompanySmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P TAYLOR appeared for APPELLANTMISS L TAYTON appeared for CROWN
J U D G M E N TDate 2006-10-30

LORD JUSTICE MAY:

[1]It was 28 years ago, on 2nd October 1978, that David Hempston, the appellant, was sentenced to life imprisonment for rape and an offence under section 21 of the Offences Against the Person Act 1861, particularised as choking, suffocating or strangling a woman with intent to disinhibit her.[2]Since the early eighties he has been detained, not in prison, but in a number of secure hospitals, as we understand it upon the direction of the Secretary of State under section 47 of the Mental Health Act 1983, as it now is. The equivalent statute in force at the time of his sentence was the Mental Health Act 1959. It is not suggested that there is any material difference between the provisions of those two statutes centrally relevant to this appeal.[3]He is so detained because he is mentally ill. He suffers from paranoid schizophrenia. The opinion is that he remains a risk to others, especially women.[4]The present appeal is on a Reference from the Criminal Cases Review Commission. The basis of the Reference is that, if medical opinions now available had been available to the sentencing judge, the judge would have been in a position and under a duty to have imposed a Hospital Order under what is now section 37 of the Mental Health Act 1983, together with a restriction order under section 41, without limitation of time, instead of a sentence of life imprisonment.[5]The Criminal Cases Review Commission considered that there is a real possibility that this Court would allow the appeal and substitute a Hospital Order.[6]The formal conditions for a Hospital Order and a restriction order are fulfilled. The appellant is suffering from mental illness, namely paranoid schizophrenia, and there is written and oral evidence of two registered medical practitioners to that effect. Their view is that it is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment. A bed is, on the evidence, available for him within 28 days (plainly so, because, as we understand it, he is there occupying it already). If a Hospital Order is to be made, the opinion is that there is a serious risk that he would commit further offences if he is released, so that a restriction order is necessary and appropriate. None of this is contentious.[7]It may be asked what difference would it make, since all the present indications are that the appellant will have to continue to be detained for some time. The short answers to this include that a Hospital Order has less stigma than a sentence of life imprisonment; that practical circumstances regarding the possibility of future release are more onerous if the appellant then had to return to prison first; but significantly, that it is the Parole Board which considers release if the appellant is a prisoner, but the Mental Health Tribunal if he is a patient.[8]Procedures and approaches of these two bodies are very broadly similar. Each would be centrally concerned with whether the appellant remains or is at risk of being a danger to the public, particularly in this appellant's case to women. But the emphasis of the Parole Board is perhaps upon protection of the public, whereas the Mental Health Review Tribunal is as concerned with managing the patient's mental health. Miss Tayton submits that a discretionary life sentence affords greater protection for the public than a Hospital Order.[9]We have heard oral evidence today from two of the psychiatric doctors, to the effect, at least in Dr Exworthy's case, that the procedures for possible future release under a Hospital Order would be such as to provide protection for the public.[10]So it is that the main issue before the Court today is whether, in the words of section 37(2)(b) of the Mental Health Act 1983, the Court is of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedent of the offender, and to other available methods of dealing with him, that a Hospital Order is the most suitable method of disposing the case by means of an order under section 37.[11]Mr Taylor, for the appellant, says that it is; that it would have been the right order to make in 1978 if the judge had had the additional evidence now before Court; and that if the criteria for a hospital are fulfilled, it is the order which should normally be made in preference to a determinate sentence or one of life imprisonment. He says that there does not have to be a causal link between the mental illness and the offending, a proposition with which Miss Tayton does not disagree. He also says that the judge was wrong to refuse, as he did, an application for an adjournment to obtain further psychiatric evidence. Miss Tayton, in an economic and sensitively understated submission, submits that the application of the leading House of Lords authority in R v Drew [2003] UKHL 25, [2003] 2 Cr App R(S) 24, suggests that, in the present case, the discretionary life sentence should not be replaced with a Hospital Order and a restriction order.[12]Before proceeding to the details of this appeal, we should clear away some undergrowth. First, there is an unopposed application to admit fresh evidence of reports by Dr Exworthy and Dr Nimmagadda. There is also a very recent psychiatric report of Dr Cree, the appellant's present responsible medical officer, proffered to satisfy the two registered medical practitioner's requirement of sections 37 and 41. In fact we now have, and are grateful for it, three registered medical practitioners. We admit that evidence and have heard two of the doctors give evidence orally.[13]Secondly, we are not assisted, neither is the appeal strengthened, by a debate about whether the judge was right or wrong to refuse an adjournment 28 years ago for further psychiatric evidence. We can see the force of that submission. But the real question is whether, on the psychiatric evidence now available and in the light of what has happened with the appellant since 1978, the court in 1978 would and should have made a Hospital Order with a restriction order. In the light of the new evidence, it is agreed that that is a question for this Court to consider on the totality of the evidence and that we are not concerned with the now academic question of whether the judge, 28 years ago, was manifestly wrong on material that he had.[14]It is now necessary to go into some detail. The appellant pleaded guilty in the Central Criminal Court on 2nd October 1978 before His Honour the late Judge Argyle QC, who sentenced to him to the following terms of imprisonment: for one count of rape, life imprisonment; for one count of attempting to render a person incapable of resistance with intent, contrary to section 21 of the Offences Against the Person Act 1861, life imprisonment; for assault occasioning actual bodily harm, 4 years' imprisonment; for burglary with intent to rape, 2 years' imprisonment; for common assault, 9 months' imprisonment; for common assault originally charged as assault occasioning actual bodily harm, 6 months' imprisonment; and for a further count of common assault, 1 months' imprisonment, all those doubtless being imposed concurrently.[15]Surprisingly there is a transcript of the proceedings in 1978, including the judge's sentencing remarks.[16]On 9th October 1980 the Single Judge refused the appellant's original application for an extension of time in which to apply for leave to appeal against sentence. The application was renewed before the Full Court and refused on 22nd January 1981.[17]The facts, which if everyone will excuse us, we shall take rather quickly, were as follows. The appellant was 30 years old at the time of the offences and by reason of his psychiatric history was familiar with the layout of Kingston Hospital. The first count, common assault, occurred on 15th April 1977, at about 5 o'clock in the evening when a Miss W, a nurse at Kingston Hospital, was in her room at the nurses' home when there was a knock at door. She opened it and the appellant gained access to the room by posing as an electrician and by stating he come to check the plugs. He began to fiddle with electric switches in the room, then turned and locked the door. He then took the nurse by the arms, sat her on the bed and began talking to her. He told her he had had a girlfriend who had her room and he talked about personal matters relating to him. He gave his name as "John". Miss W noticed the smell of alcohol and eventually he went. She was, mercifully, unharmed.[18]Counts 2 and 3, burglary and common assault: on 8th December 1977, at about 10 o'clock in the evening, the appellant used the same method to gain access to a Miss L's room at the nurses' home. He entered her room and as he did so put his hand across her mouth and another arm round her neck in a grip to ensure she could not scream. She promised him not to scream and he let her go and then lay on the bed. He made her light a cigarette for him and talk to her about his sexual difficulties. She eventually managed to get to the door and scream for help. She was heard by two of her friends who attended to her as the appellant left the room. Miss L was in a frightened state but there were no substantial injuries on examination.[19]Count 4, a count of common assault, occurred at about 11.15 pm on the same evening. The appellant approached a Miss K, a housekeeper at the hospital, as she walked through the hospital grounds. He asked her for directions to a ward in the hospital and asked if she was a nurse. He then grasped her by the throat. She screamed and the appellant ran away. She was examined and found to be distraught and fearful but there were no substantial injuries.[20]Count 5, rape: shortly after at about 11.30 pm that same evening, the appellant returned to the student nurses' home and into a corridor where a student nurse, Miss B, was just returning to her home. She asked him what he wanted. He asked her what her room number was and again entered by claiming that he was an electrician. When he got into the room he pushed her onto the bed, put a hand over her mouth and said:
"You know what I am, you know what I want, I want you to love me"
. While she was struggling he put his hand around her neck in a stifling or choking manner and he put two fingers down her throat to make her less likely to react. He then touched her private parts and partly undressed her. He then raped her. She was too frightened to struggle against him. They remained in her room from 11.30 pm until 8 o'clock the next morning. Every time she tried to move the appellant woke up. A friend called for her to go to work at 8.00 am. The friend opened the door and found her in a distressed condition, with the appellant hiding behind the open door. She was able to get out of the door and away. The appellant managed to get dressed and leave the building without being caught.[21]On examination, she was frightened and distressed. The doctor did not find any marks of violence on her body but concluded that she would have been incapable of resisting an active muscular male.[22]Counts 6 and 7, attempting to render someone incapable of resistance with intent and assault occasioning actual bodily harm: on 1st January 1978, a 21 year old woman called Miss G had been to a nightclub in North London and was returning home alone at about 1.30 am by thumbing a lift. She was picked up by the appellant who was driving a van. She noticed that the appellant was shaking continuously and asked to get out. The vehicle was moving and the appellant said, in a fierce voice:
"No, you stop in here."
She tried to open the door but the appellant grabbed both her wrists with one hand and held her tightly. He drove to a dark street in the Victoria area and started to kiss her. She began to scream. The appellant tried to suppress her screams by putting both hands round her throat and he kept pressing to such an extent that she fainted from the pressure being applied. A female passerby was suspicious of the activity in the van and upon closer inspection saw a girl struggling with a man. She opened the passenger door and asked what was going on. This seemed to surprise the appellant, who let go of Miss G who managed to escape from the van. The appellant drove away. The passerby made a note of his registration number and called the police who traced the appellant from the registration number.[23]When he was interviewed, having been arrested, the appellant made two statements under caution, a brief summary of them included the following. Firstly, his mother had suffered a nervous breakdown when he was 2 years old and had been in a psychiatric hospital since. She had tuberculosis and the appellant contracted it when he was 5 years old. He must take after his mother because all his life he had had problems and treatment for his nerves. He had received psychiatric treatment at Kingston Hospital since he was 15 years old. However he had not been to the hospital since he was about 19, because after about 3 years he had decided they were not advanced enough in that field to treat him. His mental state had started to deteriorate about 18 months previously, when the relationship with his girlfriend ended. He made admissions to the various offences. He described himself as possessed. He did not know what he was doing. He said:
"I need help to help me get my life sorted out"
. It is, of course, and remains to his credit that he pleaded guilty to all these offences.[24]Before sentencing, counsel sought further psychiatric examinations of the appellant, to find out exactly what condition he was in and whether he should be punished or whether the court would consider making an order under the Mental Health Act 1959. The judge indicated that on the medical evidence already before him he took the view that there was no opening under the Mental Health Act. The judge stated:
"I would willingly consider a Section 60 Order with a Section 65 restriction, but there is very strong evidence that that course is not really open."
That was a reference to one or both of the psychiatric reports that were before the court at the time, which did not appear to encourage the judge to make a hospital order. Later, the judge said to counsel, Mr Herbert, who was in court mitigating on behalf of the appellant, that it seemed to him that he had better address the court on the basis that the appellant had got to be sent to prison for a very long time. There was medical evidence before the court which told the judge, in his view, in very plain terms, that this was not a medical case. The judge commented that if the appellant became a medical case once in custody, then he could be transferred administratively by the Home Office. Therefore he would not adjourn for further medical enquiries as the judge was satisfied that if a mental condition did arise, the authorities would deal with it.[25]The two medical reports which were before the sentencing judge were a report dated 28th June 1978 from Dr Bearcroft and a report dated 31st July 1978 from a Dr Clark.[26]In passing sentence, Judge Argyle said that the court had given careful consideration to the medical aspects of the appellant's history in the case, but up-to-date medical reports said that he was not eligible for treatment at the present time under the Mental Health Act. Taken into account were his guilty plea, for which he very much commended, and that he was virtually a man of previous good character. Protection of the public, in particular nurses at this hospital, was a major consideration. The judge felt obliged to pass an indeterminate sentence to enable the Home Office authorities and Health Service to determine when it would be safe to allow him his liberty. In the meantime the victims and any potential victims had to be given reassurance. At a later stage, when the judge was asked to comment on the possibility of the appellant's release, he expressed his view in forceful terms that he should not be released.[27]There is inevitably over the intervening years a large amount of psychiatric and historical material about what has happened to the appellant. His behaviour initially deteriorated and became increasingly odd during the early part of his life sentence according to a report by Dr Stewart the prison medical officer in July 1979. He said that by April 1979 the appellant was clearly psychotic and recommended a transfer to hospital. He was transferred to the prison hospital wing. In April 1979 Dr Stewart asked Broadmoor Hospital to assess the appellant, stating that the offence appears to have been the result of his illness. But for his good response to treatment while on remand it is likely that he would have been dealt with under section 60 to 65 of the 1959 Act and had been "in your care", that is to say Broadmoor Hospital, some time ago. As a result, the appellant was examined by Dr Le Couteur, who concluded that he was mentally ill and required hospitalisation.[28]Dr Faulk also examined the appellant and supported the recommendation for a transfer to hospital, opining that he suffered from schizophrenia. He noted suggestions of mental abnormality in the appellant's statements to the police. He was first transferred to Broadmoor on 3rd January 1980. There were no signs of mental illness on examination and whilst he was tense and anxious he was not psychotic. By examination on 27th March 1980, he had received no treatment or medication, was not in need of medical treatment and therefore he was returned to prison. However, on return to prison his behaviour was noted as being rather odd. Broadmoor reassessed him but did not think he warranted hospitalisation. He was treated with anti-psychotic medication in February 1981 and he attempted suicide on 1st January 1982. He was assessed by Dr Mawson from Broadmoor, who believed he was suffering from chronic schizophrenia. He was transferred back to Broadmoor on 12th February 1982 and treated with antidepressants which improved his condition. Whilst still there a report by Dr Gordon in April 1984 diagnosed the appellant as suffering chronic schizophrenia with a prominent depressive component, and said that he should not be returned to prison at that stage. After no evidence of a relapse for 10 months his medication was stopped in September 1985, but he deteriorated again and was placed back on the medication in March 1986. In November 1986 he became acutely psychotic and further medication was administered. He initially improved but relapsed in June 1987. His state improved on high doses of anti-psychotic medication between 1988 and 1989, although there remained a strangeness and bizarreness in his behaviour. It was felt that his personality had been seriously damaged by his schizophrenic illness.[29]In December 1991, whilst still in Broadmoor, he was examined by Dr Adshead, who agreed that he suffered from a schizo-affective disorder. She added that the fact that he was fairly consistently ill whilst on remand suggested to her that he was probably psychotic and at least prodromal at the time of the offence. The diagnosis was reaffirmed by Dr Halstead in a report in September 1995.[30]A case conference in October 1993 recorded signs of psychosis being present. In May 1994 Dr McQuaid opined that the appellant was suffering from schizophrenia with a marked affective component. He believed the appellant had been mentally ill at the time of the offences and psychotic symptoms were still present at the time of interview. Dr Minne also concluded he was suffering from schizo-affective disorder and medication was controlling the acute symptoms.[31]Case conference notes in November 1995 summarised the major issues as including chronic psychosis and organic contribution, heavy drinking before the offence and his suicide attempt requiring resuscitation, difficulties in engaging in psychotherapy and concrete thinking in relation to the offence.[32]At a case conference in July 1997 the report written by Dr Adshead concluded that the appellant's mental state had been deteriorating for a number of years before he committed the offence. The fact that he was psychotic on remand suggested that he was mentally ill at the time of the offence. The most likely diagnoses seemed to be schizo-affective disorder with predominantly depressive features. However, given his psychological profile and his consistent minimisation and denial of the offences, it was likely that his attitude to women and his views about rape contributed as much to the offence as mental illness. His mental illness had been treated since his detention and that aspect had been addressed. What remained was his attitudes to women and rape, which continued to give concern.[33]In August 1997 a report by Dr Lack concluded that the appellant was suffering from a schizo-affective disorder. It stated that given that the appellant first described psychiatric symptoms at the age of 17, his personality development had been severely affected by his illness. The difficulties he experienced in his attachment to others within the family, his poor social skills and misuse of alcohol were all relevant contributory factors to the offence. She also noted the possibility of organic brain damage and similar concern over his attitude to the offences.[34]A pre-discharge report from Broadmoor, dated 10th August 1999, stated it was obvious that the appellant had had a long-standing mental illness and had become a chronic psychotic with evidence of intellectual impairment and institutionalisation. He did not have full insight and presented a significant degree of risk. It was decided he no longer needed a high secure environment and would be transferred to the medium secure Thornford Park. His attitude and behaviour towards women should be monitored and ongoing treatment was required for a long time.[35]So, the appellant was admitted to Thornford Park on 25th August 1999. A report by Dr Dontchev, dated 4th October 2001, stated that after appearing to settle well his mental state deteriorated at the end of 2000, in that he appeared psychotic with bizarre and delusional ideas. He was seen staring at some of the female nurses. He did not feel that he was ill or needed medication but agreed to take it.[36]So that is the psychiatric history in the brief of the 28 years since the appellant was sentenced.[37]Before the Court today, as fresh evidence, are two reports from Dr Exworthy, one dated 10th February 2004 and the other 30th August 2005; a report from Dr Nimmagadda, dated 15th September 2005 and an updating short report (written least week) dated 25th October 2006.[38]These reports, taken together with the other material to which we have briefly referred, are put before the Court to show that it was highly likely that the appellant was mentally ill at the time of the offences; that the illness contributed to his offending behaviour, and it is suggested that the appropriate sentence should have been a Hospital Order.[39]Two passages, quite short, from those reports need to be referred to. The first is from Dr Exworthy first report, where he said (paragraph 6 page 27):
"It is my opinion that there is no direct link between Mr Hempston's schizoaffective disorder and his offences. I have read no entry or opinion in psychiatric reports which stated or implied he had offended because of or on the basis of specific psychotic symptoms; for example acting on the basis of delusional beliefs or in response to auditory hallucinations. However, I believe it is likely that an indirect link between the illness and offences existed."
Then in paragraph 14, on page 29:
"However, the significant of Mr Hempston's attitude to women lies in its association with his views on rape and sexual fantasies more generally. This would allow him to minimise, rationalise or even deny his actions in the index offences. In my opinion, these factors are more important than the mental illness in understanding Mr Hempston's offences. Repeated psychosexual assessments have emphasised these factors.... Finally, alcohol appears to have been an important factor in relation to the offence in April 1977."
Then in Dr Nimmagadda's most recent report he says this:
"Based on the available evidence, it is clear to me that Mr Hempston had a diagnosis of a mental illness most probably schizophrenia for a substantial period, even before he committed his index offence. For the last 29 years subsequent to the committal offence he has been in a secure psychiatric system with a diagnosis of schizophrenia. There is also evidence to suggest that he was likely to have been mentally ill at the time of the index offence. Irrespective of whether it has been substantially established or not whether he was acting on the symptoms of his mental illness, I believe his illness was likely to have a bearing on his behaviour at the time of offending. Schizophrenia is a disease of the mind that affects the thinking capacity. It is likely to impair one's judgment and ability to think about the long-term consequences. There was also evidence that he was influence of alcohol at the time of the offences. I believe Mr Hempston's personality characteristics have certainly had a major role in the committal of his offences and his mental illness and alcohol have had likely to have played a contributory role. Although it is difficult to establish the exact extent of the role of his illness on the committal of his offences, on the balance of probabilities, I believe it would have reduced his responsibility for them if he had been charged with murder, I would have considered he had a defence of diminished responsibility."
[40]Both the doctors have given oral evidence today. Dr Exworthy, in particular, has elaborated upon his opinion by reference to the passages in particular of his first report to which we have just referred.[41]It is necessary, now, to a refer to a passage in a decision of the House of Lords in a case called R v Drew [2003] 2 Cr App R 371 which, so far as it goes, is binding on this Court. The Recorder of Cardiff had passed a sentence of life imprisonment and not a Hospital Order. One of the main questions before the House was whether the terms of section 109 of the Powers of Courts (Sentencing) Act 2000 providing for life imprisonment offended against the provision of the European Convention on Human Rights and the Human Rights Act. In that context Lord Bingham said in paragraph 17 this:
"It may be accepted that a sentence of life imprisonment, passed under s 109 of the 2000 Act, is, in part at least, punitive in purpose and effect. The minimum term specified by the judge to be served before release is imposed as retribution for the crime committed. It may also be accepted as wrong in principle to punish those who are unfit to be tried or who, although fit to be tried, are not responsible for their conduct because of insanity: see, generally, R v H [2003] 2 Cr App R(S) 25.... But the appellant did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another. The Recorder of Cardiff did not regard the appellant as other than criminally culpable. Had he done so he would not have specified a minimum term based on a notional term of eight years. The appellant's mental illness could properly be relied on as mitigating the criminality of this conduct but not as absolving him from all responsibility for it. Mr Davies laid stress on the stigma attaching to a sentence of life imprisonment, which he criticised as unfair in the case of a mentally-disordered defendant such as the appellant. It is of course true that conviction of serious violent crime carries a stigma. But the appellant will have been stigmatised less by the sentence passed upon him than by his voluntary admission of guilt. Section 82 of the 2000 Act imposes additional duties on sentencing courts where offenders appear to be mentally disordered. Save where a custodial order is fixed by law (as in cases of murder) or falls to be imposed under s 109, the court must consider the offender's mental condition before imposing a custodial sentence. The humanity and fairness of this requirement are obvious. But it cannot, as a matter of national law, be stigmatised as wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried. This is made clear by the terms of s 37 of the 1983 Act, for even where the conditions of subs (2)(a)(i) or (ii) are found to be satisfied the court may make a hospital order only if it is also of opinion under subs (2)(b) that a hospital order is 'the most suitable method of disposing of the case'. If it is not of that opinion, a sentence of imprisonment may be imposed even on an offender in whose case the conditions in subs (2)(a)(i) and (ii) are satisfied. The Court of Appeal in R v Birch (1989) 11 Cr App R(S) 202, 215, pointed out that prison might be chosen as an alternative to hospital either because the offender was dangerous and no suitable secure hospital accommodation was available or because there was an element of culpability in the offence which merited punishment, as might happen where there was no connection between the mental disorder and the offence or where the offender's responsibility for the offence was reduced but not wholly extinguished." 42. "[He] did not claim to be unfit to plead and advanced no defence of insanity. Instead, he pleaded guilty to an offence of which an essential ingredient was an intention to cause grievous bodily harm to another." 43. In the present there was a broadly equivalently serious intent. In the present case the judge regarded the appellant as criminally culpable. As we have said, he recommended subsequently that he should never be released. It is argued here that the appellant's mental illness could properly be relied on in mitigation, but not as absolving him from all responsibility for it. It would not have been wrong in principle to pass a sentence of life imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried. If one takes what Lord Bingham said in that short passage in Drew literally and by itself, the questions include whether this is a case where his responsibility for the offence is reduced but not wholly extinguished. If it is argued that a literal application of that would often reduce this Court's discretion under 37 to near vanishing point, the main considerations nevertheless are whether the mental illness so reduced the offender's culpability that, having regard to the need for public protection, a Hospital Order is the right disposal and a sentence of life imprisonment is the wrong disposal. Mr Taylor submits that the two paragraphs from Drew should not be taken by themselves and should not be taken as having reversed what he submits was the well established principle to be derived from a substantial number of cases, certainly before Drew and some of them after, where the Court had to make a judgment in all the circumstances in the round as to whether it was right to pass a Hospital Order or a sentence of life imprisonment. Mr Taylor refers to paragraph 23 of Drew, were Lord Bingham said this: 44. "
In the course of his argument for the Home Secretary, Mr Perry gently suggested that Court of Appeal decisions generally encouraging the making of hospital orders where the relevant medical criteria were met might, in the absence of adversarial argument, have given less than adequate weight to the differing conditions governing the release and recall of restricted patients as opposed to life sentence prisoners. He instanced authorities such as R v Howell (1985) 7 Cr App R(S) 360; R v Mbatha (1985) 7 Cr App R(S) 373; R v Mitchell [1997] 1 Cr App R(S) 90; R v Hutchinson [1997] 2 Cr App R 60. There may be some force in this criticism, and we would accept that these differing conditions are a matter to which sentencing judges and appellate courts should try to give appropriate weight. The difficulties caused to prison managements by the presence and behaviour of those who are subject to serious mental disorder are, however, notorious, and we would need to be persuaded that any significant change in the prevailing practice was desirable." "(2). Where the sentencer considers that notwithstanding the offender's mental disorder there was an element of culpability in the offence which merits punishment. This may happen where there is no connection between the mental disorder and the offence, or where the defendant's responsibility for the offence is 'diminished' but not wholly extinguished. That the imposition of a prison sentence is capable of being proper exercise of discretion is shown by Morris....and Gunnell. Nevertheless the more sentence in Mbatha.... strongly indicates that even where there is culpability, the right way to deal with a dangerous and disordered person is to make an order under section 37 and 41." Mr Taylor emphasise that last sentence. One authority to which Mr Taylor refers which followed and referred to Drew, is R v IA [2005] EWCA Crim 2007, a decision of this Court presided by Mance LJ (as he then was) was on 4th August 2005. 46. "Accordingly the judge was bound to consider which was the more appropriate in the particular circumstances of this case, a custodial sentence or a hospital order with restriction. That involved weighing factors." 47. We have reached the following conclusions: firstly, we are satisfied that the appellant was suffering from mental illness at the time of the offences for which he was sentenced in October 1979. The illness was paranoid schizophrenia. Secondly, we have very carefully considered the extent to which the mental illness may have contributed to the very serious offending to which he pleaded guilty, and whether in the light of that the right order in 1978 was a life sentence of imprisonment and not a Hospital Order. We have taken account of the passages in the two doctors' written medical reports. We have been helped by the oral evidence of Dr Exworthy. He was asked questions about the contributions there may have been to this offending from the appellant's personality, his attitude towards women, from alcohol and from his mental illness and although, for the purposes of the present day, Dr Exworthy considered, first, that the mental illness overlay and may have affected the personality and perhaps the disposition to alcohol; second, that in his opinion the mental illness was the predominant factor. Weighing these and all the other factors that have been put before us, we have concluded that the right order upon the evidence presented to this Court was indeed a hospital order under section 37 of the Mental Health Act, together with a restriction order without limitation of time under section 41 of that Act. In our judgment, the formal preconditions for those orders are fulfilled. We have already indicated that we find that the appellant was suffering from mental illness, namely paranoid schizophrenia. Accordingly, bearing in mind that a Hospital Order under section 37, with a restriction order without limited time under section 41, will in the opinion of both doctors be sufficient to protect the public, and in particular women, from anything which the appellant might do in future, we are satisfied that that is the right order now to make. Accordingly, we allow this appeal and substitute for the sentences of life imprisonment a Hospital Order, with a restriction order without limit of time.