Kitchener v R [2017] EWCA Crim 937

Case No 2016 / 03135 / A3[2017] EWCA Crim 937
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT CARDIFF, THE RECORDER OF CARDIFF
T20027853
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/07/2017
Before
LORD JUSTICE FLAUXMR JUSTICE BLAKEMR JUSTICE WILLIAM DAVIS
Between
MATTHEW DAVID LEWIS KITCHENERApplicantREGINARespondent
Philip Bown (instructed by Cartright King) for ApplicantDominic Connolly (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: 26 May 2017
Judgment

Introduction

[1]On 22 November 2002 at the Crown Court at Cardiff before the Recorder of Cardiff His Honour Judge Griffith-Williams QC the applicant, then aged 20, pleaded guilty to attempted murder contrary to s.1(1) of the Criminal Attempts Act 1981. On 2December 2002, he was sentenced by the same judge to custody for life with a minimum term of 4 years and 8 months less 4 months on remand in custody.[2]His applications for an extension of time of about 14 years, for leave to appeal against sentence and to call fresh psychiatric evidence have been referred to the full Court by the single judge. The basis for the application for leave to appeal against sentence is that the applicant contends that he should have been sentenced to a hospital order and a restriction order under sections 37 and 41 of the Mental Health Act 1983 rather than to custody for life.[3]The basis for the application for an extension of time is that the psychiatric report of Dr Sobia Khan dated 26 October 2015 was not available at the time of sentence. That report is said to satisfy the conditions for the admission of fresh evidence under section 23 of the Criminal Appeal Act 1968. The admission of the report is said to be both necessary and expedient in the interests of justice. Dr Khan was the applicant’s responsible clinician from the time he was transferred from Rampton Hospital to the medium secure unit at St. Andrew’s Healthcare in Birmingham in May 2014 until he was transferred to Llanarth Court hospital in November 2016.[4]There is a witness statement from Ms Sherena Lawrence, a paralegal with the applicant’s solicitors Cartwright King, which explains that the applicant first contacted the firm seeking advice on a possible appeal against sentence in August 2014. The case was considered by the firm’s in-house counsel Mr Philip Bown, who represented the applicant before this Court but not at the sentence hearing and after appropriate funding was obtained, he advised that Dr Khan should be asked whether she was willing to provide an opinion on the question whether, at the time of sentencing, the applicant was suffering from a mental disorder. Enquiry having been made, on 30 June 2015, St. Andrew’s Healthcare confirmed that Dr Khan was willing to conduct a review and provide a report.[5]Dr Khan’s report was provided at the end of October 2015 and forwarded to counsel for his advice. Due to what are described as funding and administrative issues, he was not able to finalise his Grounds of Appeal and advice until 19 May 2016.[6]In R v Thorsby [2015] EWCA Crim 1; [2015] 1 WLR 2901, this Court explained at [13] that the criterion for whether an extension of time should be granted was the interests of justice:
“Neither the Criminal Appeal Act nor the Rules limit the discretion of the court on the issue whether an extension of time should be granted. In this court’s experience the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so. There are, however, several components that contribute to the interests of justice. The court will have in mind the public interest in the proceedings of the Court generally, in particular in the finality of Crown Court judgments, the interests of other litigants, the efficient use of resources and good administration. However, the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual…Where there is no good reason why an applicant should not have complied with well known time limits this court will be unlikely to grant an extension of time unless injustice would be caused in consequence. Accordingly, the court will examine the merits of the underlying grounds before the decision is made whether to grant an extension of time. The judgment is judicial and not merely administrative.”
[7]In accordance with that approach, we will consider first the merits of the proposed appeal and the application to adduce fresh evidence before considering whether to grant the lengthy extension of time sought. In the course of his sentence the applicant has changed his name to Jude Armel and we shall refer to him in that name.

The offence

[8]The facts of the offence are as follows. In the early hours of 4August 2002 the applicant followed the victim, Helen John-Hall, as she walked to her home in Porthcawl and at her doorstep he subjected her to an apparently motiveless attack. She was unknown to him and he carried out a sustained attack during which she was stabbed in the neck and strangled. She thought she was going to die but managed to raise the alarm and the presence of a neighbour caused him to break off the attack. An eye-witness who saw the applicant strangling the victim, watched him walk away then return to kick her as she lay on the ground. These events happened on the day of the applicant’s 20th birthday.[9]The applicant went home and confessed to a friend who then called the police. The applicant was later to admit the attack saying he was responding to command auditory hallucinations. He said he intended to kill and torture the victim. He said he had had dreams about killing woman over previous months.[10]The applicant was of previous good character.

The psychiatric evidence before the judge and the sentencing remarks

[11]For the purposes of the sentencing hearing, the applicant’s legal advisers obtained a psychiatric report dated 20 November 2002 from Dr Roger Thomas, a consultant forensic psychiatrist with the South Wales Forensic Psychiatric Service in Bridgend who had conducted two interviews of the applicant at HMP Parc. This set out his personal and family history as recounted by the applicant which so far as relevant was that he was brought up by his mother and stepfather. He got on well with his mother but not his stepfather. At the age of four he witnessed a serious assault of his mother by his biological father who stabbed her multiple times. This was traumatic for him and Dr Thomas said he had symptoms compatible with post-traumatic stress disorder. The applicant reported that, at the age of 16, when in the army cadets, he had been sexually abused.[12]In the Opinion section of his report, Dr Thomas said that the applicant was of average intelligence. He showed no cognitive problems, with no evidence of disorientation, no evidence of poor concentration and no evidence of memory disturbance. He satisfied the standard criteria used with regard to fitness to plead and was therefore not under a disability in relation to trial. Although the applicant had intermittently complained of ‘hearing voices’ these did not appear to be understandable by him and were not clear command hallucinations. In view of this and the fact that he did not exhibit any other psychotic symptomatology, Dr Thomas’ opinion was that he did not suffer from any form of psychotic illness.[13]The applicant had clearly suffered with intermittent episodes of mild to moderate depression, which had led to him seeking help from psychiatric services in August 2001. He was assessed in the outpatient department but by March 2002 had failed to maintain an appointment with his psychiatric social worker and in July 2002 was discharged in his absence for non-compliance. At the time of the instant examination he was not suffering with a major depressive disorder although he showed signs of anxiety and the symptoms of PTSD were not severe. There was considerable evidence from the medical records that he had a general distrust of the world, and feelings of anger and rage.[14]Dr Thomas said that it was curious that the applicant described, immediately prior to the attack, having drunk a considerable amount of alcohol but the pathology clearly revealed this not to be the case. He appeared to have no recall for a significant period immediately prior to the alleged offence but this was of little significance from a psychiatric point of view as it was well established that recall is often poor when a person is in an emotionally intense state.[15]In summary, his opinion was that the applicant was fit to plead and although having suffered from a number of psychological problems this did not amount to a serious mental illness.[16]Dr Thomas not only produced this report but gave evidence before the judge at the sentencing hearing.[17]In his sentencing remarks, the judge observed that the applicant had tried to kill the victim and it was a matter of luck that in the result she had sustained no serious and long lasting physical injury but she was likely to remain emotionally scarred as a result of her ordeal. He referred to the applicant’s age and the fact that he had no previous convictions, together with the considerable mitigation of an early plea of guilty, his cooperation with the police and his genuine remorse.[18]The judge then referred to Dr Thomas’ evidence. He said that the applicant’s legal advisers had been concerned that there had been no discernible motive, so they had instructed Dr Roger Thomas, an experienced consultant forensic psychiatrist. His report and the evidence that he had given to the court raised real concerns. The applicant had told the doctor he had felt very angry towards the victim; that he experienced occasional violent thoughts of a general nature to hurt people and he often experienced periods of extreme anger, although not particularly directed at any specific person. He also had a general feeling the world was against him and therefore he armed himself with a sheath knife.[19]The judge referred to the opinion of Dr Thomas that, while the applicant did not suffer from any form of serious medical illness or any psychotic illness he constituted a significant and ongoing risk to the public. It was no doubt because of that opinion that the judge did not consider a hospital order under section 37 of the Mental Health Act 1983, since on that basis the conditions in section 37(2)(a) of the Act were not satisfied.[20]The applicant’s claim to Dr Thomas that he was very drunk was contradicted by the pathology and that, taken with his mother’s observation that at times he was not entirely truthful, led to the conclusion that he may also have been a manipulative young man. The Judge was satisfied, both from the facts and the circumstances of the offence and from the medical evidence, that the applicant was a person of unstable character who presented a serious danger to the public and who was likely to commit violent offences in the future which would be likely to be especially injurious to others.[21]The judge said that at that time it was not possible to say whether he would cooperate with efforts to treat him and there were concerns that he would not. Further, it was not certain that the treatment would be successful during the period of an appropriate determinate sentence so as to remove the risk he presented. In the circumstances, there was no alternative but to pass an indeterminate sentence as there was a duty to protect the public. But for the need to pass an indeterminate sentence, a sentence of ten years’ custody would have been appropriate in his case.

Fresh evidence

[22]The present application is based on fresh psychiatric evidence detailing the medical history of the applicant since he was sentenced and expressing the opinion that, at the time that the applicant was sentenced he was suffering from a severe personality disorder which was a psychopathic disorder within the meaning of section 37 of the Mental Health Act 1983 as was in force at the time in December 2002.[23]The medical history of the applicant since he was sentenced is set out in detail in the report of Dr Sobia Khan dated 26 October 2015 to which we have already referred.[24]In summary, the position is as follows. From the time of sentence in December 2002 until November 2008, the applicant was serving his sentence in prison. He was not assessed as suffering from a mental disorder and progressed from the Young Offender Institution at Aylesbury to HMP Cardiff, where he was a Category C prisoner. In 2007, the applicant’s solicitors invited the Parole Board to consider re-categorisation as Category D, in other words, open conditions. During the course of 2006, the applicant had had 18 individual psychology sessions with Rachel Cooper, a psychologist, who administered the Psychopathy Checklist Questionnaire, on which he scored very highly. She strongly opposed the move to open conditions and supported re-categorisation to a higher Category establishment. The Parole Board concurred with her assessment and proposed a referral to the Westgate Unit at HMP Frankland. In the meantime the applicant was transferred to HMP Leicester and then HMP Gartree, where in June 2007, he attempted suicide by taking an overdose and disclosed increasingly violent thoughts and fantasies.[25]He was subsequently seen by a multi-disciplinary team and his transfer to Rampton Hospital under section 47 of the Mental Health Act was recommended and took place in November 2008.[26]In her report Dr Khan noted that the applicant had been diagnosed with Depressive Episode, Emotionally Unstable Personality Disorder and Dependent Personality Disorder that were all mental disorders within the meaning of the Mental Health Act 1983 as amended in 2007. He exhibited features of other personality disorders.[27]She noted:
“Disorders of adult personality and behaviour are persistent. They emerge early in the course of a person’s development manifesting in late childhood or adolescence, as a result of both constitutional factors and social experience, and continue into adulthood. Specific personality disorders, as diagnosed for Mr Armel are deeply ingrained and enduring behaviour patterns, manifesting as inflexible responses to a broad range of personal and social circumstances. Such behaviour patterns tend to be stable and encompass multiple domains of behaviour and psychological functioning. The evidence of pervasive poor psychological functioning and disturbed behaviours is apparent in Mr Armel’s late childhood and early adolescence as outlined in his background history in the main body of this report leading to disruption to his life at home, at his school and his various workplaces. These behavioural patterns would have governed how he perceived, felt, thought and, particularly related to others around him, and it remains a strong possibility that his personality disorders were a factor in the violence he perpetrated during these years of his life.”
[28]Elsewhere Dr Khan explains that adult personality disorders have a good prognosis with proper psychiatric treatments although recovery is slow and variable among individuals. The applicant had gradually responded to appropriate treatment, although it remained to be seen how he would utilise his coping strategies outside the hospital environment. Continuing work was needed with a graduated progress through the care pathway to low security wards and an eventual return to the community. His present hospital specialises in cases of personality disorder and a bed remains available for him to continue his treatment there.[29]She commented on Dr Thomas’s report and the judge’s sentencing remarks and offered the opinion; “had the courts known what we now know, following Mr Armel receiving a significant period of treatment and care in specialist forensic settings geared in providing specialist treatments for personality disorders and that Mr Armel is showing response to this treatment and has been very willing and cooperative in accepting the treatment on offer, they may well have considered the appropriateness of use of a disposal through a Hospital Order… [the applicant] is suffering from a chronic and enduring mental disorder, which remains of a nature that requires treatment in hospital which cannot be provided unless detained under the Mental Health Act”.[30]At the direction of the registrar, a further psychiatric report was obtained on 1 December 2016 from Dr Philip Joseph, the well-known consultant forensic psychiatrist. From his own interview with the applicant and all the other material available he concluded that at the time of the offence he was suffering from a severe personality disorder described by Dr Khan but with features of psychopathic or antisocial personality disorder and this disorder was intimately associated with the offence.[31]The application for permission to appeal was founded on these two reports. On reading them, we invited further information and assistance with whether the present application met the criteria so recently laid down in the leading case of R v Vowles and others [2015] EWCA Crim 45; [2015] 2 Cr App R (S) 6 and the subsequent decision in R v Turner [2015] EWCA Crim 1249.[32]The double lock provided by section 45A of the Mental Health Act 1983 as amended in 2007 whereby release had to be approved by both the First-tier Tribunal and the Parole Board was not available in the case of an offender, like the present applicant, who was under 21 at the time of conviction (see Vowles [18] to [19])[33]In response to our request for further assistance, Dr Joseph prepared a second report dated 25 May 2017 in which he explained that the personality disorder from which the applicant has suffered is a psychopathic disorder within the meaning of section 37(2) of the Mental Health Act 1983 as that section stood at the time of the trial (before its amendment in 2007) and, as such, a hospital order was an available option in November 2002. The public interest was best protected by a hospital and restriction order. A return to prison would cause deterioration in his condition. He could not be treated for it in prison. The First-tier Tribunal would be better able to assess risk than the Parole Board who would be hampered by the transfer from mental hospital to prison. Dr Khan agreed with this assessment.[34]We directed that both Dr Joseph and Dr Khan should attend the appeal and give evidence before us. We are grateful to them for doing so. From their evidence the following additional points emerged: i) a personality disorder is difficult to detect at age 20, and psychiatrists would be reluctant to reach a conclusion of psychopathic disorder at such a young age; ii) there is considerably more material now available in terms of the previous history and the response to treatment than would have been available for Dr Thomas to consider when writing his report; iii) in addition, the applicant had endeavoured to mislead Dr Thomas by attributing his offending to excessive alcohol consumption that was contradicted by the toxicology reports and a reference to hearing voices that has not been supported by subsequent psychiatric investigation. Neither feature is maintained in his present reporting to Dr Joseph, although there was some consumption of alcohol; iv) there were clear manifestations of the applicant’s disorders exhibited before the index offence; v) his behaviour during the offence was both impulsive and without any apparent motive, itself indicating that it was the product of the disorder as opposed to criminal motive; vi) given the circumstances of the offence, very considerable attention had been devoted by Rampton and others as to whether there was a possible sexual motive for the offending, but the experts were satisfied that this was not the case.[35]Dr Joseph expressed some surprise at the summary of the expert evidence given at [50] (v) in Vowles, to the effect that treatment in hospital for those with personality disorders should generally be confined to those who also have a mental illness, lest psychiatrists are stuck with an offender with a personality disorder that is untreatable. Such conditions can be successfully treated in hospital. He agreed it was difficult to make the diagnosis of personality disorder in the case of a 20 year old and that explained why section 45A of the 1983 Act did not apply to offenders who were under 21 at conviction. He told us:
“The other factor about Dr Thomas is, as has been pointed out, Mr Armel was 20 years old at the time of the offence. Psychiatrists are cautious about making a diagnosis of a personality disorder at around that age. Certainly late teenage or 20s is a young age to be confidently making a diagnosis. I think that is reflected in the legislation with the section 45A order which, as the court is aware, does not apply in somebody under the age of 21. That was an order that was initially only for psychopathic disorder. I think that reflects that psychiatric thinking about being very cautious of making a diagnosis of the legal definition of psychopathic disorder. In psychiatric terms, that refers to any form of personality disorder. I think that is another factor that may well have influenced Dr Thomas into not making the diagnosis. I think also it strikes me that there was no real in depth analysis of Mr Armel's personality structure until he was being seen by the psychologist Rachel Cooper in around 2006. She saw him for, I think, 18 sessions and did some personality questionnaires, the psychopathy checklist, for example. It was really her intervention that ensured he was not moved to conditions of lesser security within the prison system, but it was her concerns that there was a largely untapped aspect of his personality that had been looked at in prison which led to his eventual transfer to Rampton.”

Conclusions on the evidence

[36]We are satisfied that the evidence relied on is credible, relevant in that it potentially affords a basis for allowing this appeal and is indeed fresh in that it could not have been obtained previously with due diligence. No contrary submission has advanced to us by Mr Connolly on behalf of the Crown. Attempts have been made without success to contact Dr Thomas to comment on the new reports. We will admit the evidence, grant an extension of time and leave to appeal on the basis of it.[37]We accept that the diagnosis of such a severe disorder in a young man of 20 would have been extremely difficult to make at the time of trial. There was insufficient time to gather together the relevant family, social and medical history; such a disorder usually develops in adulthood and would be difficult to detect in a young man.[38]It was only after six years of serving his sentence in prison that the percipient observations of the prison psychologist prevented his inappropriate release on licence and diverted him to the hospital setting for treatment for his disorder that by then had become apparent, and for which he is still receiving relevant treatment nine years later.[39]The decisions in Vowles and Turner explain that having received this material, the court does not conduct a re-sentencing exercise in the light of the subsequent medical history of the offender, but considers whether in the light of it and the sentencing powers available at the time, the sentence of custody for life was either wrong in principle or manifestly excessive.[40]In Vowles at [51] the court set out guidance as to the approach to be adopted in cases such as the present and the factors to be considered:
“It is important to emphasise that the judge must carefully consider all the evidence in each case and not, as some of the early cases have suggested, feel circumscribed by the psychiatric opinions. A judge must therefore consider, where the conditions in s.37 (2) (a) are met, what is the appropriate disposal. In considering that wider question the matters to which a judge will invariably have to have regard to include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release. There must always be sound reasons for departing from the usual course of imposing a penal sentence and the judge must set these out.”
[41]We understand that very considerable caution should be exercised before a judge decides that a hospital order is the appropriate disposal where a dangerous offender has committed a very violent crime but is diagnosed as suffering from a personality disorder. Doubtless many violent offenders have personality disorders of one sort or another.[42]However, the fresh evidence satisfies us first that Mr Armel was suffering from personality disorders at the time of the offending that constituted a psychopathic disorder. Second, we are satisfied that the commission of this very serious crime is substantially attributable to this disorder; its impulsive nature so indicates and after prolonged investigation the absence of any other rational explanation for why he committed it strongly supports that conclusion. Thirdly, in the light of what is now known, Mr Armel needs hospital treatment. His disorder was not initially identified in prison and cannot be treated there. Prison is counter-productive to the treatment needed, that can only be provided in a hospital setting. The evidence suggests that his condition can be treated and he has responded to treatment although further treatment is needed.[43]We now turn to the fourth and most important factor, which is what the protection of the public requires. In the absence of any evidence of a mental disorder the judge was quite right to conclude that the offender was dangerous and custody for life was the appropriate disposal. The minimum term was 4 years and 8 months, suggesting that the appropriate determinate term would have been in the order of 9 and a half years. Mr Armel served the minimum term in prison where his behaviour gave rise to no cause for concern and he therefore progressed to consideration of release on licence. It was only at this stage that the potential source of his dangerousness was identified by a percipient psychologist. As a result, he was returned to secure conditions, transferred to Rampton for treatment and has been progressing in that treatment ever since. In our view, this sequence of events strongly indicates that greater protection for the public will be provided if the cause of the offending is successfully addressed by treatment that gradually secures his successful return to the community. Given his age at the time of the offending, the double lock of the Parole Board and the first-tier Tribunal is not available. As between the two judicial bodies, we accept Dr Joseph’s opinion that the Tribunal will be the more appropriate body to assess risk in this case.[44]Accordingly this appeal is allowed. We will quash the sentence of custody for life and substitute for it a treatment order under section 37 of the Mental Health Act 1983 and make a restriction order under section 41 of the same Act.