B, R v [2006] EWCA Crim 379

Case No 2005/01952/A3[2006] EWCA Crim 379
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 31 January 2006
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
MR JUSTICE CRESSWELL
MR JUSTICE OPENSHAW
Between
R E G I N ACrown- v -
Between
P. B
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR D C L ETHERINGTON QC appeared for APPELLANTMR A JAFFERJEE and MR S DENNISON appeared for CROWN
J U D G M E N TTuesday, 31 January 2006THE LORD CHIEF JUSTICE:
[1]On 15 March 2005, at the Central Criminal Court, before His Honour Judge Forrester, the appellant pleaded guilty to two counts of manslaughter on a joined indictment. He was originally indicted for murder, but the pleas to the lesser offence were accepted on the grounds of diminished responsibility. On 4 March 1994 he had been convicted of manslaughter and wounding, and had been made the subject of a Hospital Order. Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 ("PCC(S)A") therefore applied. The judge found that there were no exceptional circumstances and accordingly sentenced the appellant to life imprisonment concurrent on each count. He directed that the early release provisions should not apply, so that the appellant would serve a whole life term. The appellant appeals against that element of the sentence by leave of the single judge.[2]The issue raised by this appeal is whether the judge was right to order that in the case of the appellant the early release provisions should not apply. As we shall show, that question depends in part to the extent to which the appellant's responsibility for his actions was diminished by his abnormality of mind. The appellant's crimes and their motivation were particularly horrifying. For the appellant Mr Etherington QC submits that the horrifying features of the crimes reflect the degree of abnormality of mind from which the appellant suffers so that his responsibility for his conduct was very substantially diminished and his culpability similarly reduced. Mr Etherington submits that the imposition of a whole life term does not recognise this fact.

The Background to the Offences

[3]The two offences for which the appellant was sentenced must be considered against a background dominated by the fact that in 1994 he had a first conviction of manslaughter by reason of diminished responsibility. The victim was a young woman aged 20 called N.S.. The appellant at the time was 23 years old. He had been working at N.'s father's clothes shop in the Kings Road, Chelsea. N., who was a student, would go to the shop in the evenings to help out, with her 12 year old brother, Bobby. Shortly before 7pm on 18 March 1993, the appellant arrived at the shop, armed with a claw hammer. He struck Bobby twice on the head with the hammer, before turning to his intended victim, N.. He struck her several times on the head and continued to do so even as she lay on the floor. He then left. N. was pronounced dead upon arrival at hospital. About an hour after the attack the appellant was seen hanging from the third floor of a building in Battersea. He then dropped to the ground, seriously injuring his feet. He was taken to hospital, where in due course he was arrested. A urine sample revealed the presence of both opiates and cannabis. In March 1994 he pleaded guilty to manslaughter on the ground of diminished responsibility. The mental diagnosis was that he was suffering from schizophrenia. A Hospital Order under sections 37 ad 41 of the Mental Health Act 1983 was made.[4]The appellant remained at Rampton Hospital, where he had been admitted prior to sentencing, and was treated with anti-psychotic drugs. He appeared to respond well to treatment. From 1995 onwards he showed no symptoms of mental illness. On 10 February 2002, he was released conditionally to Riverside Hostel. The manslaughter of B.C.[5]In December 2003 there were concerns that the appellant might be relapsing. On 10 February 2004, he was transferred to Newham General Hospital for his own safety and so that he could be more closely monitored. He was on an open ward and his behaviour appeared normal. On 17 February 2004 he was allowed out for the day and he committed the first offence that forms the subject of this appeal.[6]The victim, Mr C., was 47 years old. He lived in a ground floor flat at Manning House, Walthamstow. He had been befriended by N.N., who would visit his flat most days to consume drink and drugs. N. introduced the appellant to Mr C. shortly before Christmas 2003. She had met the appellant on several occasions over a two-year period through a mutual friend.[7]At about 6pm on the evening of 17 February N. telephoned Mr C. at his flat and told him she would be coming round shortly. When she reached his flat at 7.15pm she found the appellant holding a knife. He told her that Mr C. was dead. She then saw Mr C.'s naked body on the floor with one arm severed. She retreated from the flat and called the police.[8]The police arrived at Mr C.'s flat. The appellant was standing in the hallway. His hands, jeans and trainers were blood-stained. The officers went into the kitchen, where they found a bloodstained knife and a small amount of what appeared to be "meat" in a frying pan. They then went into the living room, which was in darkness. With the use of a torch they saw Mr C.'s body on the floor. Beside the body was a severed leg and both severed arms. Strewn around the floor were several bloodstained knifes and a claw hammer. The appellant admitted killing Mr C. and severing the limbs. He said, "I ate his brain with butter. It was really nice.... I would have done someone else if you hadn't come along. I wanted their souls."[9]Subsequent forensic examination confirmed that the content of the frying pan was indeed Mr C.'s brain and that to sever his limbs the appellant had not merely had to use a knife, but had had to stamp on the limbs to break the bones.[10]Having been initially remanded to HM Prison Pentonville, the appellant was transferred to HM Prison Belmarsh three days later. There he assaulted members of staff and because of his unpredictable behaviour staff were obliged to use shields when unlocking his cell door. He was referred to Broadmoor, where he was admitted on 15 April 2004 and placed in seclusion. Three days later, on 18 April, he was transferred to the medium secure room, Luton Ward, because he was considered to have been "settled" over the weekend. The manslaughter of R.L.[11]R.L. was 60 years old. He was also a patient on Luton Ward, awaiting trial for murder. He was vulnerable due to his age, his general demeanour and his health. On 25 April 2004 the appellant had appeared normal. At about 6.10pm three members of staff were in the staff room on the ward when two bangs were heard on the other side of the wall. One of the staff members went into the dining room where he found Mr L. lying on the floor. His face was covered in blood. His right eye was black and blue. He was moaning and there was a visible ligature mark around his neck. He was taken to hospital, but did not regain consciousness. He had obvious head injuries.[12]The appellant was seen with blood on one of his shoes. He eventually admitted hitting Mr L.. He said, "I smashed his head on the floor", and had tried to strangle him with the cord from his tracksuit bottoms. When asked why he had attacked the victim, he said that he had been thinking about it for a few days and had wanted to eat him, but did not have time. He said that Mr L. was the oldest and weakest on the ward and lowest on the food chain. He was thereafter locked in his room and kept under observation.[13]Several weeks later, on 5 June 2004, Mr L. died in hospital from bronchopneumonia, which he had developed in the setting of a prolonged stay in hospital following the assault. This was a common terminal event for patients suffering hypoxic brain injury such as that which Mr L. had suffered at the hands of the appellant.[14]Meanwhile, the appellant had identified by name another patient whom he said would be next.

The Psychiatric Evidence

[15]When interviewed by doctors at Broadmoor, the appellant spoke about his mental state when he attacked Mr L.. He had been fantasising about killing him and had wanted to cook him, but there had been no chance. He had considered eating him raw. He had also been sexually excited by the killing and was attracted by thoughts of necrophilia. He retained a desire to eat human flesh and to drink human blood.[16]Five psychiatric reports from four different psychiatrists were placed before the sentencing judge. It was common ground that the appellant did not have a defence of insanity to either count and was fit to plead, but that he demonstrated abnormality of mind sufficient to diminish his responsibility for the offences, so that he should be convicted of manslaughter rather than murder. The nature of the abnormality was schizophrenia -- three of the psychiatrists used the phrase "paranoid schizophrenia" -- but with unusual features, including a failure to manifest symptoms even when in relapse. The appellant was extremely dangerous and manifested no remorse. We shall return to this evidence when we come to consider the appellant's culpability.

The Law

[17]Section 109 of the PCC(S)A has now been replaced by provisions of the Criminal Justice Act 2003 that deal with sentencing dangerous offenders. The material parts of that section provided as follows:
"(1) This section applies where -- (a) a person is convicted of a serious offence committed after September 30, 1997, and (b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence. (2) The court shall impose a life sentence, that is to say -- (a) where the offender is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment for life, (b) where he is under 21 at that time, a sentence of custody for life under section 94 above, unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so. (3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are. (4) An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law."
[18]The object of that section was explained by Lord Bingham in R v Drew [2003] UKHL 25, [2003] 2 Cr App R 24, at paragraphs 6-8. A person convicted on consecutive occasions of a serious offence was a potential danger to the public. It was desirable that a life sentence should be imposed in such circumstances to provide the flexibility necessary to protect the public. The offender would not be released from custody so long as he remained a potential danger to the public. This might be longer than would be justified by way of punishment for the offending.[19]The significance of subsection (4) of section 109 is apparent when the relevant provisions of section 82A of the PCC(S)A 2000 are considered. These are as follows: "(1) This section applies if a court passes a life sentence in circumstances where the sentence is not fixed by law. (2) The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this section as the 'early release provisions') shall apply to the offender as soon as he has served the part of his sentence which is specified in the order. (3) The part of his sentence shall be such as the court considers appropriate taking into account --(a) the seriousness of the offence, or the combination of the offence and one or more offences associated with it;(b) the effect of any direction which it would have given under section 240 of the Criminal Justice Act 2003 below (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment; and(c) the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003. (4) If the offender was aged 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2) above, the court shall order that .... the early release provisions shall not apply to the offender.[20]The effect of the early release provisions is that after the offender has served the term that is appropriate to punish him for his offending he will be considered by the parole board for release, but will not be released unless the parole board is satisfied that he will not be a danger to the public. In considering this question the parole board will consider relevant psychiatric evidence.[21]The effect of these various provisions was that, when the judge imposed a mandatory life sentence under section 109, he had to specify a minimum term that the offender would serve by way of punishment before early release provisions could take effect. The minimum term would be that "appropriate taking into account the seriousness of the offence, or the combination of the offence and one or more offences associated with it". If this test rendered it appropriate that the offender should serve the rest of his life in prison, the judge was required to order that the early release provisions should not apply.[22]It was important that when deciding on the minimum term to impose, or whether to impose a whole life term, the judge should disregard the question of the length of time that was likely to elapse before it was safe to release the offender, for this had no relevance to the minimum term (see R v Wheaton [2005] 1 Cr App R(S) 425, at paragraph 26, and R v Adams [2000] 2 Cr App R(S) 274, at paragraph 277).[23]Thus the issue on this appeal is whether the two offences for which the appellant was sentenced were so serious that he should be punished by being detained in custody for the rest of his life, even if in due course it may prove safe to release him. We would add that those acting for the appellant have always realistically recognised that the safety of the public is likely to require that he spend the rest of his days in custody.

The Sentencing Remarks

[24]In opening the facts to the judge for the purposes of sentencing counsel for the prosecution rightly observed that the facts required the judge to impose a life sentence pursuant to section 109 of CPP(S)A 2000. Section 37 of the Act provided that mental illness was not capable of constituting "exceptional circumstances" for the purpose of section 109(2). Counsel went on to say:
"The circumstances of this defendant's offending, his mental condition, the inability of experts to detect when he is at his most dangerous, and his settled desire to cannibalise his victims, all combine to make him so uniquely dangerous that the court will wish to consider whether the determinate period of the life sentence to be imposed should be a whole life sentence, and there will be submissions, of course, both from the Crown and the defence in that regard."
This echoed the theme of part of counsel's opening note which dealt with disposal.[25]This submission was unhelpful, for it suggested that the judge should impose a whole life term in order to protect the public. However, Mr Etherington QC for the appellant has assured us that this fact was drawn to the attention of the judge and the correct principles placed before him. There is no indication in the sentencing remarks that the judge was led astray by this submission. In the earlier part of those remarks he considered whether it would be appropriate to impose a hospital order, and concluded that it would not for a number of reasons. These included the statement that hospital treatment had been shown to be incapable of curing the appellant's illness. Mr Etherington, in his advice on appeal, joined issue with the suggestion that the appellant's condition was untreatable. It does not seem to us that this question has any bearing on the issue with which this appeal is concerned. The judge, in fact, went on to observe, correctly, that a hospital order was not an option open to him, having regard to the mandatory provisions of section 109.[26]Turning to the question of whether the early release provisions should apply,

the judge said this:

"I bear in mind your pleas of guilty, and I accept, of course, that your responsibility for each crime was substantially impaired through your mental illness, and I have regard to that. Although substantially impaired, you do of course bear a criminal responsibility. You were not insane when you committed these offences, nor are you unfit to be tried here today, and you have pleaded guilty in this court to criminal offences. And so you acknowledge that you bear a responsibility, even though [responsibility for] each crime was substantially impaired by your mental illness. What I have to do is to consider the nature of the crimes and the gravity of them. The first point: there are two crimes, separated by that short period of time of some two months or so. That is a very important feature here, particularly bearing in mind that you have a previous conviction for manslaughter some eleven years ago now. You have killed three people in that period of eleven years, so when assessing your culpability, I am dealing with a man who has killed three times, and on the last occasion whilst in custody upon a charge of murder, as you then were. Next, the violence on each occasion was extreme and unpredictable, as I have said, accompanied by bizarre sexual and sadistic overtones. You killed on these two occasions because it gave you a thrill, and a feeling of power when you ate flesh, as you did in the case of Mr C. and intended to do in the case of Mr L., and you obtained a sexual pleasure from what you were doing. These were emotions which you felt, and the seriousness of the case, I have no doubt whatever, is exceptionally high, even having regard to your illness. Therefore, I have come to the conclusion in the circumstances of this quite exceptional case that you must never be released from prison."
In consequence the judge directed that the early release provisions should not apply.[27]Mr Etherington has referred us to his careful and detailed written submissions. We can summarise them as follows:(1) When considering the "seriousness" of the offence for the purpose of section 82A of the PCC(S)A 2000 account must be taken of the culpability of the offender.(2) Where abnormality of mind diminishes the responsibility of an offender for what would otherwise be murder, it also diminishes the offender's culpability for the offence.(3) The degree to which it diminishes culpability will depend upon the nature and extent of the mental disorder.(4) The appellant's mental disorder was very severe, and the diminution of his responsibility and culpability commensurately great.(5) Insofar as the judge considered culpability, he failed to give sufficient weight to the nature and extent of the appellant's mental disorder.(6) In these circumstances he should have ordered the early release provisions to apply after a relatively short term of imprisonment.[28]Mr Jafferjee for the Crown has accepted that the correct approach is to consider what is demanded by the seriousness of the offences committed and has put at the forefront of his submissions in support of the full life term the fact that the appellant had killed three times. To this he has added the nature of each of those offences, as we have described them, and submitted that in these circumstances the judge was fully entitled to take the exceptional step of imposing a sentence which would result in the appellant remaining in prison for life.[29]In relation to Mr Etherington's first proposition, there can be no doubt that culpability is of important significance when considering the seriousness of an offence. Both these offences were committed before April 2005 and therefore section 151 of PCC(S)A applies. Section 151 provides:
"In considering the seriousness of any offence, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences."
We would also draw attention to the following provisions of section 143 of the Criminal

Justice Act 2003:

"(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused. (2) In considering the seriousness of an offence ('the current offence') committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to -- (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction."
These provisions do not apply as a matter of statute law to these offences, but they reflect both common sense and previous sentencing practice.[30]Thus, when considering the seriousness of the two offences for which the appellant was sentenced the court had to consider both the harm done and the appellant's culpability. There is no greater harm known to the criminal law then death. It robs the primary victim of his or her life and causes deep distress and deprivation for relatives and friends of the victim. The sentencing judge had before him statements showing the impact of the appellant's acts on those close to his victims. Furthermore, the judge was right to emphasise that the appellant had been guilty of three killings in the previous eleven years. The first killing was plainly relevant as aggravating the two offences for which the appellant fell to be sentenced.[31]The judge also had to consider, however, the appellant's culpability for causing this grievous harm. Here there can be no doubt that the appellant's mental abnormality diminished his culpability. It did so to the extent of reducing his crimes from murder to manslaughter. Thus as a matter of law it reduced his responsibility for the killings and at the same time his culpability for them. More generally, the Sentencing Guidelines Council's guideline on seriousness published in December 2004 rightly includes under the factors that indicate significant lower culpability "mental illness or disability". Thus, Mr Etherington's second proposition is correct.[32]We would also endorse his third proposition. Plainly the greater the mental disability and the more it contributes to the offender's behaviour, the greater its effect in mitigating culpability.[33]Mr Etherington's final three propositions require us to examine whether the judge gave due weight to the mitigation that flowed from the appellant's abnormality of mind.[34]The task of identifying the appellant's residual responsibility for the offences that he committed is, as his counsel concede, a difficult one. In their advice counsel have helpfully identified some of the pertinent comments made by the psychiatrists. Dr Lock stated that he found it impossible to assess what part the appellant's personality played in his offences. Dr Aboud spoke of the appellant's paranoid schizophrenia being hallmarked by a delusional belief system involving voodoo rituals, cannibalism and a desire to commit necrophilia, and stated that his behaviour constituted objective features of his being unwell. Dr Joseph concluded that there was no doubt that the appellant was severely mentally ill at the time of both killings, and that his abnormality of mind was a highly significant factor affecting him at the relevant time. Dr Gamble expressed his opinion that the appellant's schizophrenia caused severe abnormality in his thoughts, impulse control and emotional responses.[35]All of this leads to the conclusion that the appellant was severely mentally ill and that the mental illness had a dominant effect in causing him to act as he did. We do not find it possible to describe more precisely the residual responsibility and culpability that he must bear for the offences that he committed.[36]We are thus faced, as was the judge, with a situation where the harm that was done by the appellant was immense; the circumstances in which that harm was done were horrifying; but his culpability was very considerably diminished by his mental illness. We have reached the conclusion that the judge did not adequately reflect the latter factor in his decision that the early release provisions should not apply. Having referred to the fact that the appellant's responsibility was diminished, the judge stated that what he had to do was to consider the nature of the crimes and the gravity of them. He then treated what he described as "the bizarre sexual and sadistic overtones" as increasing the gravity of the offences without reflecting the fact that these were symptomatic of the appellant's illness.[37]We can understand the judge's reaction to this case. The crimes committed by the appellant were so horrifying that one's instinctive reaction is that he should never be released. But this reaction is based in part on the apprehension that, should he be released, he might behave in the same way again. The sentencer must, however, difficult though this is, put this consideration out of his mind. It will be for others to decide whether it can ever be safe to release the appellant. We have to consider the following question. Assume (unlikely though it be) that the appellant is cured of his mental illness so that he becomes in effect a different person, one who looks back in horror at the way he behaved when he was ill. How long does justice demand that he should be held in custody to punish him for the crimes that he committed when he was ill?[38]We have considered a large number of appeals to this court where sentences were imposed for manslaughter by reason of diminished responsibility. The longest sentence imposed was nine years. But none of those cases involved a series of killings; none of them involved circumstances such as those with which we are concerned.

Conclusion

[39]After careful consideration we have reached the conclusion that, had determinate sentences been imposed, the appropriate sentence that would have been imposed would have been fifteen years for each offence, those sentences to run consecutively. Adopting the approach that the law requires, those sentences fall to be halved for the purpose of identifying the minimum term, so that the total of 30 years reduces to 15 years.[40]Although the appellant's first offence of manslaughter was dealt with by a hospital order, we consider that it is appropriate to treat him as if he had been on licence when the second offence was committed. In those circumstances it is not appropriate to make an allowance for time spent on remand. He will therefore serve the minimum term of 15 years.[41]We must make it clear that this does not mean that the appellant will be released at the end of this period. It means that from the end of this period his mental condition will be kept under review in order to ensure that so long as he constitutes any risk to the public he is kept in custody.[42]We would add that we have found the exercise on which we have been engaged to be somewhat unreal. The reality is that it is hard to conceive that the appellant will ever be released.

Cited in 1 later judgment