Fisher, R. v [2019] EWCA Crim 1066

Case No 201804983 A1[2019] EWCA Crim 1066
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice Strand London, WC2A 2LL
Thursday, 13 June 2019 B e f o r e:
LORD JUSTICE HICKINBOTTOM
MRS JUSTICE ANDREWS DBE
and
HIS HONOUR JUDGE MAYO
RECORDER OF NORTHAMPTON
R E G I N A v
THOMAS FISHER
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Miss E Marshall QC appeared on behalf of the Appellant Mr M Jewell QC appeared on behalf of the Crown
J U D G M E N T
(Draft for approval)
Between
FisherDefendantRCrownDate 2019-06-13
[1]who have been understandably devastated by her death. relationship with their stepmother, Leigh Fisher. which made playing the guitar difficult. alcohol from shops.[5]In November 2015 she threw him out of the house for a short while, and he went to live[6]with his father and stepmother. He soon returned to the family home, but began to accrue large gambling debts on Mrs Fisher's credit card and moved back to live with his father. He was still drinking heavily and shoplifting, although when living with his father and stepmother his behaviour stabilised to an extent. He had several outpatient psychiatric appointments during this period to deal with his drinking problem and anxiety, but was discharged in March 2016. With the assistance of his sister and grandfather, he was admitted to the Priory Clinic in March 2017, but failed to engage with the treatment programme and subsequently discharged himself. that he had been gambling with her money. when he began smoking cannabis again.[10]agreed to collect him the following day, which she did.[11]friends, and gave no cause for concern. However, from the next day (Wednesday 25 April), unusually, Mrs Fisher did not contact her family and friends, who became increasingly concerned, particularly because she was not answering her phone and text messages were being shown as not being delivered which suggested that her phone was off. Megan telephoned a neighbour of her mother's whom she knew well, and she told Megan that the Appellant had returned to the house that afternoon in Mrs Fisher's car. The neighbour had seen the Appellant arrive and, being worried for Mrs Fisher, she had asked him where his mother was, as (she said) they were going out that evening; but he said he did not know. She asked him if she should call the police, and he said she could if she liked and if they came to the house he would let them in. Megan and Mrs Fisher's mother then arrived at the house, but the Appellant would not answer the door. The police were called and duly arrived. They found the front door locked, but the back door wide open. They went in and asked the Appellant where his mother was. The Appellant appeared exercised, to the extent that he was handcuffed. When asked who was in the house with him, he said his mother was there, "upstairs under the bed". When asked if she was okay, he replied:
"No, she's not okay"
. The police searched the house and found Mrs Fisher under the bed. She was dead. She was in her night clothes and wrapped in a quilt. She had been stabbed once to the chest, where the knife was still embedded.[12]credit card at 11.35 that morning. In addition, a later search of the house found a journal kept by the Appellant from January to April 2018. The journal was unguarded, that is it was clearly written with the intention that no one else should ever read it. In the view of Dr Duncan Anderson, a consultant psychiatrist instructed by the Appellant's solicitors, the entries appeared to be psychotic in nature, becoming increasingly disjointed over time. He concluded from the journal and the other evidence available to him that the Appellant came to believe with delusional intensity that his parents and grandparents, together with others, including the monarchy, the judiciary and "Russian girls", were responsible for wrecking his life by, amongst other things, making him gay, tormenting him sexually, and trying to kill him or make him commit suicide, as well as engaging in otherwise trivial matters such as changing his tobacco. The journal recorded that they did this by means of surveillance, by direct interference with his mind and by giving financial assistance to (and even by specially breeding) others to be better, more successful and happier than he. The journal said that whoever was carrying out these things deserved to die. by the police.[14]I choose not to"; but he could not recall that note or what he may have meant by it. As we have indicated, the Appellant was charged with the murder of his mother. The Crown Court had the advantage of reports from three consultant psychiatrists, Dr Anderson to whom we have already referred; Dr Philip Joseph who was instructed by the Crown Prosecution Service; and Dr Roderick John Ley who was the Appellant's treating psychiatrist. Their reports are lengthy, but we can deal with their evidence quite briefly. appropriate. with that view.[17]suspended sentence imposed for the second burglary of his mother's house. that was of course the right focus. or drink on the day of his mother's death.[20]responsibility within the guideline. That careful assessment is unimpeachable.[21]not consider there were any particular aggravating features which increased the seriousness of the offence in terms of culpability. In a case of manslaughter, as the guideline emphasises, “harm” will always be of the utmost seriousness.[22]the public will be reduced to an appropriate level. or her conclusions to be in any way impeachable.[24]judgment are to the Mental Health Act 1983 unless otherwise appears. Where an offender suffers from a mental disorder, the court has a number of sentencing options.[25]Those sections provide: "37. Powers of courts to order hospital admission or guardianship (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law... and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order.... (2). The conditions referred to in subsection (1) above are that– (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either— (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or (ii) ... and (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.” “41. Power of higher courts to restrict discharge from hospital (1). Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender 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 so to do, the court may subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section... and an order under this section shall be known as a 'restriction order'. (2). A restriction order shall not be made in the case of any person unless at[30]least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court. (3). The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows- (a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below (c). the following powers shall be exercisable only with the consent of the Secretary of State, namely– (i) power to grant leave of absence to the patient under section 17 above; (ii) power to transfer the patient in pursuance of regulations under section 19 above... ; and (iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and (d). the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule." conditionally or unconditionally.[35]order under section 38 whilst that appropriateness is being considered. the Secretary of State.[37]imprisonment but make directions under section 45A(3), which provides:
"The court may give both of the following directions, namely— (a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a 'hospital direction'); and (b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a 'limitation direction')."
[38]been removed, the Secretary of State will normally simply remit him to the prison estate under section 51, unless his tariff has expired. Where the tariff has expired, the[39]Secretary of State may notify the FtT that he should be conditionally discharged, in which case he is subject to mental health supervision and recall in the usual way; but the Secretary of State can, and in practice usually does, refer the offender to the Parole Board[40]as with any other post-tariff indeterminate sentence prisoner.

Step four of the sentencing guideline deals the correct approach to identifying the appropriate

[41]sentence in a particular case. It provides as follows. "Consideration of mental health disposals (Mental Health Act 1983) Where:(i) the evidence of medical practitioners suggests that the offender is currently suffering from a mental disorder,(ii) treatment is available, and(iii) the court considers that a hospital order (with or without a restriction) may be an appropriate way of dealing with the case, the court should consider all sentencing options including a section 45A direction and consider the importance of a penal element in the sentence taking into account the level of responsibility assessed at step one. Section 45A hospital and limitation direction (a) Before a hospital order is made under section 37 (with or without a restriction order under section 41), consider whether the mental disorder can appropriately be dealt with by custody with a hospital and limitation direction under section 45A. In deciding whether a section 45A direction is appropriate the court should bear in mind that the limitation direction will cease to have effect at the automatic release date of a determinate sentence. (b) If a penal element is appropriate and the mental disorder can appropriately be dealt with by a direction under section 45A, then the judge should make such a direction. (Not available for a person under the age of 21 at the time of conviction). Section 37 hospital order and section 41 restriction order (c) If a section 45A direction is not appropriate the court must then consider (assuming the conditions in section 37(2)(a) are satisfied) whether the matters referred to in section 37(2)(b) would make a hospital order (with or without a restriction order under section 41) the most suitable disposal. The court should explain why a penal element is not appropriate."[42]disposal.

That guideline to a large extent, unsurprisingly, reflects the principles drawn from the authorities

[43]by this court in Edwards at [34], as follows: "Finally, to assist those representing and sentencing offenders with mental health problems that may justify a hospital order, a finding of dangerousness and/or a section 45A order, we summarise the following principles we have extracted from the statutory framework and the case law. 1) The first step is to consider whether a hospital order may be appropriate. 2) If so, the judge should then consider all his sentencing options including a section 45A order. 3) In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence. 4) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender's culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions. 5) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender's mental illness. 6) If the judge decides to impose a hospital order under section 37/41, he or she must explain why a penal element is not appropriate. 7) The regimes on release of an offender on licence from a section 45A order and for an offender subject to section 37/41 orders are different but the latter do not necessarily offer a greater protection to the public as may have been assumed in Ahmed and/or or by the parties in the cases before us. Each case turns on its own facts. 8) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a section 45A order he or she should lodge a section 23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it. 9) Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or Appellant wishes to add grounds not considered by the single judge an application to vary should be made." be identified. has a penal element.[46]allows an offender to be directed to hospital by the court but, if he recovers or is found to be untreatable during that period, then he is remitted to prison to serve the balance of that time. In determining the most suitable sentencing disposal, the court must therefore bear in mind the importance of the penal element in a sentence as well as the rehabilitation and protection of the public (see Edwards at [34(3)]). That is clearly still so after the introduction of the guideline. generally in the same circumstances. rehabilitation back into the community.[50]from Dr Anderson on these differences. (i). When subject to a restricted hospital order, for release, the offender only has to satisfy the FtT that his mental health poses no unacceptable risk to the public; whereas, in the case of a section 45A direction, where there is an indeterminate sentence, as well as satisfying the FtT as to that, he must also satisfy the Parole Board that he poses no such risk for any reason. That was emphasised by this court in Vowles [2015] EWCA Crim 45; [2015] 2 Cr App R (S) 6 where, at [21], Lord Thomas of Cwmgiedd CJ said of a section 45A direction: "The advantage of making such an order in an appropriate case is that an offender sentenced to an indeterminate or long determinate sentence can immediately be directed to have treatment in hospital, but the timing of his release is subject to the decision of the Parole Board which has to take a much wider view of the risks to the public than the [FtT]." (ii). Unlike a hospital order, under section 45A, there is the possibility of a patient being released from hospital care back into the prison estate before release into the community – although Dr Anderson accepted that in most cases that is more hypothetical than real, because a responsible clinician is unlikely to agree to the release of a patient back into the prison estate in those circumstances if that may result in a deterioration of his condition. (iii). Dr Anderson said that where the tribunal conditionally discharges a patient under section 37/41, it will attach appropriate and often rigorous conditions to the discharge, such as a requirement to spend every night at a particular address, a requirement to meet with the mental health team on sometimes a very frequent basis, compliance with a therapeutic regime (which will in most cases include the patient’s compliance with medication), abstinence from non-prescribed drugs or excessive consumption of alcohol, and a requirement to engage in psychological treatment in appropriate cases. The conditions may include testing arrangements to ensure compliance with any therapeutic regime and an abstinence from illegal drugs and alcohol if necessary. It is less likely that the Parole Board would impose such carefully tailored (and helpful) conditions to a release on licence from an indeterminate sentence. (iv). Section 117 requires the responsible aftercare bodies, in cooperation with the relevant voluntary agencies, to provide aftercare for patients detained under section 37 or section 45A; and the Parole Board has the power to impose conditions on release which might include conditions as to mental health support. Therefore, it cannot simply be assumed that, once the offender is in back in the community, a section 37/41 order will necessarily provide a regime best suited to protect the public as opposed to a post-section 45A licence regime; nor that the former will provide a regime best suited to the rehabilitation requirements of the individual prisoner. Each regime contains provisions designed to ensure that the public is appropriately protected from the risks that an offender with a mental health condition may pose. Edwards emphasised (at [30]) that each case will depend on its own facts. (v). However, Dr Anderson considered the aftercare arrangements under a restricted hospital order to have distinct advantages. On conditional discharge, under such an order, a mental health team led by a psychiatrist and a social worker supervisor (each of whom has to prepare a report each three months), together with a community psychiatric nurse, a psychologist if relevant, and peer workers, will supervise the individual and ensure (e.g.) compliance with medication and that his mental state is not deteriorating. Under a life licence as part of an indeterminate sentence, the supervisor will be a probation officer, who, Dr Anderson said, is less likely to notice and/or elicit detriments to an individual's mental state, let alone ensure that any symptoms are properly and promptly treated. (vi). Recall under an undischarged section 41 restriction can only be made on the basis of a failure to comply with a mental health support package and/or collapse of mental health; whereas recall for breach of a life licence may be on wider grounds, such as the commission of another offence unrelated to the offender's state of mental health. Where past offending is related to the offender’s mental condition, it may be unnecessary and disproportionate that he faces the risk of being recalled to prison if he commits another, perhaps minor offence unrelated to his mental condition. (vii). Recall under an undischarged section 41 restriction can be made by the responsible clinician and is to the relevant hospital; whereas recall for breach of a life licence is made by the Secretary of State and is, at least initially, to a prison. Dr Anderson said that there were a number of advantages to the former course. First, a recall can be made quicker, because it could be effectively made by a simple telephone call by the responsible clinician. Under the indeterminate sentence provisions, recall is made by the Secretary of State and that may take some time, particularly if the reason for recall is what may be perceived as a modest deterioration in the individual's mental wellbeing. Second, recall will be to prison (at least until a transfer direction can be made), rather than to hospital; and a transfer direction may take some time. The former regime may therefore avoid situations in which the risk posed by an offender may increase, or an offender’s mental condition might worsen, because of delay in recalling and re-hospitalising him[58]during the course of detention and on release and afterwards.[59]said: "I am satisfied that the best protection of the public would be by the imposition of a life sentence, but I will combine that with a section 45A direction." surcharge of £170.[61]such an order was not appropriate in this case, for the following reasons.[62]have occurred. Second, the judge erred in putting weight on Dr Ley's assertion in his oral evidence to her that the average period of supervision for those subject to a restricted hospital order under sections 37 and 41 was between five and ten years, compared with the risk posed by the Appellant was for an indeterminate period which may well exceed ten years. She sought to rely on a further statement from Dr Ley in which he explains that the period of a section 37/41 order may be substantially longer than ten years, the five to ten year range being an "arbitrary" figure given in his oral evidence. She also seeks to rely upon the oral evidence today of Dr Anderson, which on this point was essentially to the same effect.[63]a section 41 restriction without time limit, it would be possible for him to apply for an unconditional discharge in due course, but given his condition and the need for chronic medication, Dr Anderson considers it likely that the Appellant would never be given an absolute discharge which would allow him to end contact with the mental health services. In any event, he thinks it very unlikely that any application would be made in the Appellant's case within a period of five to ten years from conditional discharge. This[64]puts the five to ten year figure used by Dr Ley into its true context.[65]to ten years, it was only a section 45A order that would properly protect the public. and possibly minor offence.[67]the sentence would be appropriate, but in imposing a two year tariff, which was clearly much less than the period that would be required for his treatment in a secure hospital, for the reasons we have given, the punitive element within the sentence in fact imposed has no dependent force. Whatever happens, the Appellant will spend the whole of that period in a secure hospital. a section 41 restriction.[70]do anything to enhance public safety. The judge, of course, did not suggest otherwise.[71]usually considered in serious cases, for somebody has been released for maybe five to ten years from release from hospital"; in other words, that an application for absolute discharge is not usually even considered until five to ten years after conditional discharge. Even then, that is a generalisation which clearly might not apply in a particular case. As Dr Anderson's evidence made clear, in cases such as this, a patient is very rarely absolutely discharged from the section 41 restriction order (so that the section 37 order continues in effect), because of the importance of compliance with chronic treatment and the possibility of relapse if the patient is left without proper mental health supervision once he has been[72]discharged from hospital under the type of conditions we have described above. and as in substance set out by Dr Anderson. in release and indeed, if necessary, any recall.[75]the formal requirements for those orders had been complied with, and of course the[76]Appellant has an available place, namely where he is now, in the Hellingly Unit.[77]suspended sentence, which we shall simply make no order. We should also deal with three minor and consequential orders. appropriate.[79]should be endorsed. We revoke those penalty points. We revoke that order.[81]some other sentence is appropriate. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

Cited in 3 later judgments