Simpson, R. v [2007] EWCA Crim 2666

Case No 200605431/A4

[2007] EWCA Crim 2666

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday, 15th October 2007

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE TOULSON

MR JUSTICE GIBBS

HIS HONOUR JUDGE WIDE QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

JONATHAN PAUL SIMPSON

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Mr A Vaitilingham appeared for Appellant

Mr B White appeared for Crown

J U D G M E N T

[1]MR JUSTICE GIBBS: The appellant, a man aged 37, appeals with the leave of the Single Judge against a sentence of life imprisonment with a minimum of 6 years to serve less time on remand. That sentence was imposed following a plea of guilty by the appellant to the charge of attempted murder on 14th October 2005 in the Crown Court at Exeter. The appellant's sentence was passed on 11th October of that year by His Honour Judge Cottle.

[2]The grounds of appeal challenge not only the appropriateness of the life sentence but also the minimum term of 6 years to serve. However, the latter has not been pursued today.

[3]The appellant, with exception of the offence with which the Court is concerned, has no previous convictions.

[4]He was born in Coventry but from early childhood was brought up in Devon. In the 1990s, as a young adult in his early twenties, he worked in the spare parts department of a company in Ottery, St Mary. There was a fellow employee called Moule. In February 1993 there was a relatively minor incident between them concerning Mr Moule's access to spare parts over which the appellant had control. Although the incident may objectively be described as "minor" and after it had passed neither Moule nor anyone else apart from the appellant thought any more of it, it triggered in the appellant's mind a series of delusional beliefs and feelings. These developed into a condition described by a psychiatrist as a persistent delusional disorder. In August 1993, a few months after the incident, the appellant left his job and moved to Coventry. In the years that followed he became increasingly reclusive and did not work. His mental state deteriorated although physically he always looked after himself and kept his affairs tidy. He attributed his unhappiness to Mr Moule and built up a series of delusional beliefs which were focussed on him. He believed that arising out of the incident Mr Moule had set about poisoning people's minds against him.

[5]There had been a young woman who worked at a local newsagent in Devon to whom the appellant had become attracted and to whom he believed subsequently he had become an object of derision. He associated her supposed attitude to him irrationally, to Mr Moule. He had had two friends at his place of work in Devon and attributed a cooling of his relationship with them to Mr Moule. All these beliefs were wholly delusional but he harboured them over a period of many years and it led him to plan revenge.

[6]He decided to go to Devon to execute the plan to avenge himself for his perceived maltreatment by Mr Moule. He grew a moustache so that he would not be recognised. He made telephone calls using false names to Devon in order to trace Mr Moule's whereabouts those many years later. In July 2005 he hired a car in Coventry where he was still living and drove down to Devon to a place at which he had discovered Mr Moule was now working. He brought with him a crowbar from Coventry as his chosen weapon. He had earlier had in mind a hammer but felt that a crowbar would be more effective. The first plan of revenge he devised was to knock Mr Moule down with his car and attack him with the crowbar. As he was later to say, his plan was "as he was getting out of his car to unlock his car I was going to fucking drive into him, get out of the car with the crowbar and fucking cave his head in with it basically." For one reason or another he thought better of that particular plan, but went so far as to make telephone calls and to loiter near the proposed victim's home and place of work with a view to carrying it out.

[7]A revised plan involved a pretence about having a justifiable reason for visiting the home of the intended victim and then either to kill him; or to kill his wife and await his return in order to kill him as well.

[8]During the early evening of 28th July the appellant went to the street where Mr Moule lived. He was dressed in a fluorescent coat and took a bag with him so that it appeared he was making a legitimate delivery. He forced his way into Mr Moule's home when he was still at work but when his wife and 19-month old daughter were present in the house. What followed was heard on an open telephone line by Mr Moule. It involved a savage and persistent attack on Mrs Moule. As he himself said:

"I walked in and like stuck the screwdriver in her stomach to begin with and then it was like a frenzy and she was strong, well she was fighting for her life, so she's obviously putting up a hell of a fight, and I just kept going on at her with the screwdriver"

. A brief account of what was on any view a savage and frenzied attack is as follows: he kicked her all over her face and body, stabbed her with a screwdriver, in particular causing serious wounds to her neck, where he stabbed and slashed at with the weapon. As a consequence of the attack she was covered in blood. Over the telephone meanwhile Mr Moule heard the attack and heard his wife and child screaming. He says that he never remembered ever feeling so frightened.

[9]The consequences of the attack physically were that Mrs Moule had 13 separate wounds to her head, face and neck, 25 separate wounds to other parts of her body, including defence wounds to her hands and arms, a dislocated finger, black eye and many abrasions. Fortunately there were no fractures nor life threatening injuries though Mrs Moule has been left with permanent scars. The Court has been shown photographs taken of her relatively shortly after the attack and has read a vivid and moving victim impact statement from her. It is clear that the attack will have a permanent and lasting effect both on her and on her family.

[10]The appellant, as we have said, had no previous convictions. But as might be expected from the facts of this case, there were before the court psychiatric reports. Reports, first, from Dr Russell, instructed on behalf of the appellant. He described that how over a period of more than a decade the appellant had developed a persistent delusional disorder which significantly effected his life. Dr Russell said the appellant continued to demonstrate very little remorse for his actions and minimised the extent of the injuries caused to the victim. He was preoccupied rather with his own mental torture and suffering. The doctor said that if the court was minded to make a Hospital Order, under section 37 of the Mental Health Act 1983, accompanied by a Restriction Order under section 41 of that Act, a bed would be available at the Reaside Clinic, a medium secure unit for psychiatric patients including offenders.

[11]Reports were also produced by Dr Amos who was instructed by the prosecution, dated 16th January 2006, with addendum report of 18th July 2006 and 9th October 2006. The opinions expressed by Dr Amos supported those of Dr Russell. The report in its final form concluded that the risk of the appellant committing further similar offences was at that time a high risk.

[12]In sentencing the appellant the judge accepted that the appellant had developed a delusional disorder. He indicated that he had carefully considered the reports from the two psychiatrists. He said that the facts of the case and the appellant's current attitude led to the conclusion he was potentially highly dangerous and there was a serious risk of harm to the public. He noted that a disposal under the Mental Health Act had been recommended by both doctors. However, he indicated that he would not accept that recommendation. He said:

"I recognise that the provisions of Section 37(1) are satisfied in your case. However, I do not accept that the most appropriate method of dealing with you is via the Mental Health Act. I reach that decision in the light of the wider interests of public protection, to which I am bound to have regard. Section 37 and Section 41 of the Mental Health Act, as Dr Russell recognises, do not provide the same level of public protection as a custodial sentence."

[13]Having made that finding, the judge continued his sentencing remarks by considering the provisions of the Criminal Justice Act 2003 and concluded that the risks posed by the appellant justified a life sentence.

[14]It is submitted to us on behalf of the appellant today by Mr Vaitilingham, in developing his earlier written submissions, that the judge was in error in concluding that a Hospital Order was inappropriate. It is submitted that there was no adequate reason for rejecting the recommendation put forward by the two psychiatrists; on the contrary there was reason to conclude that the order recommended was the most suitable in the case of the appellant and, further, that it met the wider interests of public protection to which the judge referred.

[15]In response, the respondent submits that it was open to the judge to come to the conclusion that he did, that the paramountcy of public protection in cases such as this is important, and that it was clear from the judge's sentencing remarks, which we have just quoted, that it was the judge's legitimate opinion that public protection was not sufficiently catered for by a hospital order.

[16]The brief summary which we have given of the submissions on either side do not do justice to the importance and sensitivity of the issues raised in this case. But we hope it will be clear from our conclusions that we have taken the detailed submissions of both counsel very much into consideration.

[17]In the light of the unusual and highly disturbing facts of this case, we can fully understand His Honour Judge Cottle's concern to select the sentence which best protected the public. He justifiably regarded protection as paramount in relation to the actual and potential victims of the appellant's current delusional systems. He may also have been concerned, as we are, with the possible occurrence of a further incident which might trigger another set of delusions and consequent violence. However, in his sentencing remarks, he did not make entirely clear the basis on which he thought that protection would be better afforded by imprisonment than by a Hospital Order with an indefinite restriction on release. We are told by Mr Vaitilingham that it was the possibility of escape which particularly troubled the judge when he was hearing evidence and submissions in the case.

[18]In argument we raised with counsel further potential concerns which might arise, in that the discharge provisions under the Mental Health Act might in certain circumstances be less stringent in terms of protecting the public than the criteria applied by the Parole Board in considering release of a life sentence prisoner. We have considered anxiously and in detail today both possible issues as they affect public protection on the facts of this case. We have read the evidence contained in the reports before the Crown Court from Dr Russell, and Dr Amos and further reports from the psychiatrists which have been prepared since sentence for the benefit of this Court: especially those of Dr Russell, dated 19th July 2007 and Dr Amos dated 12th July 2000. We also heard oral evidence from Dr Russell.

[19]As regards the issue of risk of escape, we have regard to the nature of the risk posed by the appellant. He has deep seated and disturbing psychiatric problems which pose an undoubted risk. On the other hand, he does not pose any serious or immediate management problems. He is unlikely to erupt, for example, into sudden violence or act on impulse. Dr Russell says, and we agree, that he is highly unlikely to fulfill the criteria for an admission to a high security hospital such as Broadmoor or relevantly to a resident Coventry, Ashworth Hospital.

[20]A more serious risk would be that he continued to nurture delusional beliefs and hatched calculated plans to escape and harm his intended range of victims. As to this, there are two aspects of Dr Russell's oral evidence which respond relevantly to this concern. First, that the treatment regime at Reaside would be very likely to detect the development of a malign mental state which could lead to an intention to escape and to reap renewed revenge. It would have a far better chance of detecting such a development than any conceivable prison regime. Secondly, Dr Russell gave evidence that the actual security measures applicable at Reaside were both stringent and effective. The patients were to a great or lesser degree physically secured by being locked into the hospital building and when appropriate locked into their wards. They were subject to constant checks. The longest that any patient was allowed to go without a check was 1 hour and where appropriate they were checked with very much greater regularity. Escape was said to be very rare. We found his evidence on the topic both compelling and reassuring.

[21]As for the second subject, namely the comparative criteria for release or discharge, the test for release of a prisoner under a life sentence is whether the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (Crime Sentences Act 1997, section 28).

[22]The test for discharge of a patient under the Mental Health Act 1983 is to be found in sections 72 and 73. Under section 73(1), the tribunal "shall direct the absolute discharge of the patient if satisfied(a) as to the measures mentioned in paragraph (b)(i) or (ii) of section 72(1) above and

(b) that it is not appropriate for the patient remain liable to recalled to hospital for further treatment."

[23]The matters mentioned in section 72(1)(b)(i) and (ii), so far as relevant are as follows:

"(i) that he is not suffering from any mental illness or mental impairment or any forms of disorder of a nature or degree which make it appropriate for him to liable to be detained in hospital for medical treatment, or (ii) that it is not necessary for the health or safety of the patient or the protection of other persons that he should receive such treatment."

[24]The possibility of a conditional as opposed to an absolute discharge arises under section 73(2):

"where in the case of any such patient as is mentioned in subsection (1) above the tribunal is satisfied as to the matters referred to in paragraph (a) of that section but not as to a matter referred to in paragraph (b) of that section, the tribunal shall direct the conditional discharge of the patient."

[25]As is noted in the case of R v IA

[2006] 1 Cr App R(S) 521

, the power to make a conditional order is thus expressly related to the potential appropriateness of further treatment in order to secure the protection of others.

[26]The subject has been considered by the Court in several authorities including Birch

[1989] 11 Cr App R(S) 202

and in the case of R v IA. In the latter case, Mance LJ, giving the judgment of the Court cited passages in the speech of Lord Bingham of Cornhill in the House of Lords in R v Offen

[2001] 1 WLR 253

, which are we think highly germane to issues raised by the present case. At paragraph 34 of his judgment Mance LJ, quoted the following passage from Offen (paragraph 21):

"A defendant sentenced to life imprisonment ... is not deprived of all his rights. He may appeal against the imposition of the sentence. He may appeal against the minimum term specified by the judge. His is eligible for release on the expiry of that term and is entitled to released if he is no longer a source of danger to the public. But the decision whether it is safe to release him will be taken by the Parole Board, as an independent body acting judicially, which will not be confined to the medical consideration of which, alone, a Mental Health Review Tribunal may take account, and he is liable to recall indefinitely if he appears to present a danger to the public, the grounds of recall, again, being broader than in the case of restricted patient. In short, an automatic life sentence affords a measure of control not available under the other available orders."

A little later Mance LJ continued, at paragraph 36:

"Finally, Lord Bingham said this. 22. In the course of argument for the Home Secretary, Mr Perry gently suggested that Court of Appeal decisions gently 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 ... 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 management by the presence and behaviour of those who are subject to serious mental disorder are, however, notorious, and we need to be persuaded that any significant change in the prevailing practice was desirable."

Mance LJ then continued in his judgment, at paragraph 37:

"Accordingly, judges are not required to ignore, but should, on the contrary, give some appropriate weight to, such differences as there are between the regime of custody for life, with the Parole Board's role after the expiry of the minimum period, and the regime of a hospital order with indefinite restriction, with the Mental Health Review Tribunal's role under s 73 of the 1983 Act. This does not mean assuming that the latter regime, which has the advantage of guaranteeing hospital treatment, will in any particular case necessarily afford significantly less protection to the public than the former."

[27]With those considerations in mind, we turn to the evidence before us. In particular we note the report of Dr Amos at section 12, "Opinion and Recommendations" paragraph 10 onwards. Dr Amos lists four separate reasons why hospital treatment will be more affective in addressing this appellant's case than imprisonment. First, he would receive the appropriate medication; the effects of his medication would be more closely monitored by health professionals than it would be in the prison setting, where prescription and monitoring were significantly more difficult. Secondly, he would receive psychological assessment and treatment by a multi disciplinary team. Within prison the nature of psychological therapy was a limited nature because of the circumstances. In particular, the appellant would have the opportunity to work with those with real expertise in his type of offending behaviour. This would assist not only in assessing the risks he presented but also in reducing those risks. Thirdly, the appellant could be observed more effectively in situations which arise within the community. Occupational therapists in secure hospital units may see patients in general activities and assess their progress in a number of ways which is not open to those subjected to a prison regime. Fourthly, there would be substantially more effective opportunity under a hospital order to plan his rehabilitation and eventually reintroduction into the community. Dr Russell supports the views of Dr Amos in those regards.

[28]It is, we think, unclear from the judge's sentencing remarks the extent to which he had all these issues in mind when concluding on the evidence before him that a life sentence served the purposes of public protection better than a hospital order. We understand and fully endorse the judge's view that public protection is and will remain a crucial consideration. The depth and complexity of the appellant's delusional beliefs give grounds for grave concerns about his future conduct. The degree of risk that he will once again act on those delusions is open no doubt to debate. There is, we are satisfied, reason to think that it can be reduced by treatment but it may well persist in some form indefinitely.

[29]We conclude that one thing is clear: the nature of the danger if the appellant does again act on his delusions is very severe and very potentially lethal. No doubt all those responsible for his management and treatment as well as those who may in the future consider the question of release, if and when the matter is referred to them will wish to bear this well in mind.

[30]But we are satisfied that in the particular circumstances of the case, upon the evidence that we have before us today, the best chance of minimising the danger lies in a Hospital Order rather than imprisonment. We accept and rely on the evidence in relation to this from both Dr Russell and Dr Amos. The danger emanates substantially from a deep seated mental illness and it is treatment for that illness accompanied by secure conditions which give the best chance of eliminating or minimising the risk and, if ever appropriate, of rehabilitating him into society. On the evidence we have heard, namely the written evidence of Dr Russell and Dr Amos and the oral evidence of Dr Russell, both of them registered medical practitioners for the purposes of the Mental Health Act 1983, we find as follows: first, that the mental disorder from which the appellant is suffering is of a nature or degree or which makes appropriate for them to be detained in hospital for medical treatment, and, second, that having regard to all the circumstances including the nature of the offence and the character and antecedents of the appellant, and other available methods of dealing with him that the most suitable method of disposing of the case is by means of an order under section 37.

[31]Further, pursuant to section 41 of the 1983 Act, it appears to us, having regard to the nature of the offence, the antecedents of the appellant and the risk of his committing further offences if set at large that it is necessary for the protection of the public from serious harm that the appellant be subject to special restrictions set out in section 41 without limit of time.

[32]For the reasons which we have given, we quash the sentence imposed by His Honour Judge Cottle and substitute a Hospital Order as just defined pursuant to section 36 and 41 of the Mental Health Act. We are satisfied that there is a place available for him at the Reaside clinic.

[33]We direct that a copy of this judgment accompanies the appellant and is drawn to the attention of all those concerned in his management and treatment, and in any future consideration of his possible release.