R v Moses Smith [2024] EWCA Crim 361

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2024] EWCA Crim 361Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 14 March 2024
Before
THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)LORD JUSTICE HOLROYDEMR JUSTICE GOOSEHIS HONOUR JUDGE LICKLEY KC
Between
REXCrownv
Between
MOSES SMITH__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR JAMES BLOOMER appeared for AppellantMR EDWARD BROWN KC appeared for Crown_________J U D G M E N T

Approved Judgment

[1]On 1 April 2022 in the Crown Court at Wolverhampton before His Honour Judge Chambers KC, the appellant (who was then aged 39) pleaded guilty to manslaughter as an alternative to murder and an offence of possession of a bladed article contrary to s.139(1) Criminal Justice Act 1998.[2]The guilty plea to manslaughter was on the grounds of Diminished Responsibility. The prosecution took time to consider that plea and on 29 September 2022 it was confirmed that the appellant's plea to manslaughter was acceptable.[3]On 3 February 2023 the appellant was sentenced to Imprisonment for Life pursuant to s.285 Sentencing Act 2020 for the offence of manslaughter, with a minimum term (after reduction for the time spent on remand) of 10-years-and-127-days. A concurrent sentence of 10 months' imprisonment was imposed for the weapons offence.[4]The appellant (who is now aged 41) appeals his sentence with leave of the Single Judge, who gave directions for further and up-to-date reports from the appellant's current clinicians in relation to the appellant's mental ill-health. We shall return to the way that this appeal has developed later within this judgment. The Offences[5]The appellant was a customer of an insurance company in Wednesbury and from time to time he visited the office to ask questions about an insurance policy. The staff at the insurance company who dealt with the appellant observed that he appeared to suffer from mental health problems. One of them was the deceased, Abdi Mohamed. There were no known difficulties between the appellant and the deceased or with other members of staff prior to the killing.[6]On 8 June 2021 the deceased was working at the insurance office but was not available to take calls when the appellant telephoned the office. The appellant said that he wanted to talk to the deceased about his payments. At 12.11 pm the appellant attended the office and was admitted by the deceased, who went to speak to him. The appellant spoke of some scratch damage to his van and whether it was worth making a claim upon the insurance policy. The deceased managed to calm the appellant down, after which the appellant asked the deceased to go outside to see the apparent damage. He followed the appellant outside, to see the van which was parked nearby. There followed a shocking and frenzied attack by the appellant upon the deceased with a knife. With no warning, the appellant repeatedly stabbed the deceased to the upper body, neck and shoulder area. The deceased tried to move away but succumbed due to the nature of the attack upon him. When he fell to the ground, the appellant began to kick the deceased as he lay there. During the attack the appellant was heard repeatedly to shout, "You've ruined my life". Witnesses described the appellant as being full of rage and shouting, "Don't you mock my life". The deceased was heard repeatedly calling for help, which eventually brought members of the public forward, who intervened, placing themselves between the appellant and the deceased. At that moment the appellant walked to the driver's door of his van and drove away.[7]The attack was recorded on CCTV images and proved to have lasted for 58 seconds. The first emergency call was made at 12.17 pm. Upon the arrival of paramedics, treatment was carried out at the scene and the Air Ambulance was called. During the journey to the Queen Elizabeth Hospital in Birmingham attempts continued to be made to save the life of the deceased. He died by 20.03 pm. He was aged 26.[8]In post-mortem examination it was shown that the deceased had suffered two deep stab wounds to the left side of his neck, extending into the deep structures. There were two corresponding lacerations to the jugular vein, as well as incised wounds to the face and scalp.[9]Approximately two hours after the attack the appellant handed himself in at the police station, whereupon he was arrested. During police interview he declined to answer questions and was later charged with murder, then being remanded in custody.[10]Further investigations by the police show that at 11.19 that morning the appellant had bought a kitchen knife in a shop before he made his way to the insurance company. Medical examination of the appellant[11]In custody it became apparent that the appellant was very unwell, to the extent that he was psychotic. On behalf of the appellant, Dr Farnham (a consultant forensic psychiatrist) reported on 2 November 2021 that the appellant was not fit to plead and expressed a provisional view that a partial defence to the charge of murder may be available for a guilty plea to manslaughter, on the basis of Diminished Responsibility. That opinion by Dr Farnham was in agreement with an earlier report by Dr Kenney-Herbert dated 15 October 2021, which solely addressed the issue of fitness to plead. Dr Farnham provided further reports on 23 February 2022 and 24 January 2023. By his second report Dr Farnham found the appellant no longer unfit to plead and expressed the opinion that the appellant satisfied the criteria for a finding of Diminish Responsibility for the purposes of the plea of guilty to manslaughter, rather than murder. In his third report Dr Farnham concluded that the appellant was still exhibiting signs of psychosis with a need for hospital treatment.[12]On behalf of the prosecution, Dr Kennedy agreed in his first report, dated 18 February 2022, that the appellant was fit to plead and accepted that he had not been so in the months following the killing. In Dr Kennedy's second report dated 21 March 2022, he concluded that the appellant's identifiable mental illness substantially affected his ability to form a rational judgement. He did not find that his ability to exercise self-control was substantially impaired, given that the appellant had bought a knife shortly before the killing, carried out online research into revenge killing, and had spoken to the deceased calmly before asking him to go outside. In Dr Kennedy's third report, dated 31 August 2022, he agreed with Dr Farnham that the appellant's mental disability at the time of the killing availed him of the partial defence to murder by reason of diminished responsibility. Medical evidence at the time of sentence on 3 February 2023[13]Dr Farnham carried out a further examination of the appellant on 10 January 2023. In his report dated 24 January 2023 Dr Farnham stated:
"36. When I assessed Mr Smith on 10 January he presented with a number of paranoid, persecutory, and nihilistic beliefs. Some of these may represent ‘histrionic’ behaviour or perhaps overvalued ideas (abnormal beliefs that are neither delusional nor obsessional in nature, but which are preoccupying to the extent of dominating the sufferer's life). However, I am concerned that Mr Smith’s mental state is deteriorating. In particular, the apparent rigidly held belief that his food and possessions are being interfered with and contaminated with body fluids and that his family are in danger do have a delusional quality. 37. With respect to the court, my preliminary view is that Mr Smith’s current mental state fluctuates but is worsening and has features in common with the mental state encountered by Dr Kenney-Herbert when he assessed him in October 2021, although not as severe. ... 38. ... my current view is that Mr Smith is likely to require readmission to hospital at some point in any case and that s.45A might be the most appropriate disposal. The view of the prison In-Reach team is likely to be valuable … As such, presumably a report from the Reaside Clinic will be necessary if the court wishes to consider a s.45A."
[14]In Dr Kennedy's final report on 14 January 2023, he stated:
"When I assessed Moses Smith, he did not present with psychotic symptoms. Mr Smith does have a history of presenting differently to different professionals at different times and therefore my assessment should be treated with caution. For this reason, I have referred him back to the mental health team in the prison. Mr Smith was found by the treating team at Reaside Clinic to not be exhibiting psychotic symptoms whilst in hospital. Antipsychotic medication was withdrawn but he was continued on antidepressant medication. He has subsequently discontinued this. ... In prison Mr Smith has not complied with medical treatment. He has not as far as I can see, sought help from the prison medical authorities before discontinuing his medication."
Dr Farnham obtained an explanation from the appellant as to why he had discontinued his medication and was told that the appellant did not like the side effects that it caused. Dr Kennedy continued: "Mr Smith did not present as psychotic when I saw him but did when Dr Farnham assessed him. It is for this reason that I have referred him to the prison mental health team. They can conduct a more longitudinal assessment of any current need for hospital treatment. My understanding from his clinical records is that the clinical team did not believe that a hospital order was appropriate in his case. There is at present no recommendation that he currently requires treatment in hospital. On the basis of my interview with him I could only say that further assessment is appropriate. If his mental state is, longitudinally, as it was when I spoke with him then hospital treatment would not currently be necessary.” Sentencing[15]The judge was invited to adjourn sentence to allow further investigation as suggested by Dr Farnham and Dr Kennedy. The judge declined to do so and gave his reasons. "The sentencing judge should first consider if a hospital order may be appropriate under section 36(2)(a) of the Mental Health Act. In considering that, the case was adjourned for the preparation of addendum reports as to disposal by Dr Kennedy and Dr Farnham. The first question under section 37 is, ‘Was the offender suffering from mental disorder’, that is a question which applies to the condition at the time of sentence. Neither doctor comes to that conclusion. Whereas it is right to say that you have a background of psychotic disorder, as to the position at the moment, neither doctor conclude that is the position and by its nature, such a condition fluctuates in terms of severity, and is treatable. Secondly, that the mental disorder is ‘of a nature or degree which makes it appropriate for the offender to be detained in hospital for medical treatment’ . Neither doctor concludes that that is the position. Thirdly, that appropriate medical treatment is available for you. Neither doctor states that it is and, therefore, the court is not able to even begin to be of the opinion that having regard to all the circumstances, including the nature of the offence and the character 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 such an order."[16]The judge then concluded that the appellant fell to be sentenced to Imprisonment for Life under s.285 Sentencing Act 2020 and applied the Manslaughter Sentencing Guideline. He assessed the degree of responsibility retained by the appellant, given that he suffered from diminished responsibility at the time of the killing. He found the retained responsibility to be high, because the appellant had obtained the knife from a shop shortly before the killing; he had carried out some online research into revenge killing; he spoke calmly (or at least not violently) with the victim inside the insurance office before inviting the victim outside; the attack itself involved considerable force with repeated stabbing injuries to the upper body, neck and shoulder area, and with kicking of the deceased whilst on the ground; the appellant then drove away when interrupted.[17]In applying the guideline, the judge found aggravating features of seriousness in the significant degree of planning and that a knife was taken to the scene, although he was careful to avoid double counting, having taken into account those matters, in concluding that there was high culpability. In mitigation, the appellant had surrendered himself to the police station shortly after the killing. The starting point for sentence under the guideline was 24 years, which he reduced to 22-and-a-half years, and concluded that the appellant was a ‘dangerous offender’. Reducing the custodial term for guilty plea by 20 per cent and then by a third, to arrive at the minimum term to be served as part of the life sentence, the judge concluded that it should be 12 years' custody less time served on remand (subsequently confirmed to be 603 days). This led to the minimum term ordered as 10-years-127-days. Grounds of Appeal[18]On behalf of the appellant it is argued that the sentence imposed was wrong in principle and manifestly excessive for two reasons.• . Firstly, that the judge wrongly rejected the recommendations of both Dr Kennedy and Dr Farnham of further assessment of the appellant in custody, upon the issue as to whether he had mental disability at the time of sentence to permit the making of a Hospital Order under s.37 Mental Health Act 1983, with or without restriction under s.47; or a Hybrid Order under s.45A of the 1983 Act.• . Secondly, that the judge was wrong to conclude that the appellant retained high culpability when assessing sentence under the Manslaughter Guideline.[19]In the course of oral argument Mr Bloomer, for whose submissions we are grateful, argued that it may just be that a further assessment of the appellant in light of his possible mental health deterioration, referred to by Dr Farnham but not observed by Dr Kennedy, would have affected the sentence. The agreed view of both psychiatrists was that a further assessment was appropriate and that it would have been a safer course. It was submitted that the refusal to adjourn the sentence hearing was not properly open to the judge. Further, Mr Bloomer argued that there were clear markers pointing away from higher retained culpability. Firstly, Dr Kennedy's opinion was that this killing would not have happened but for the appellant's mental ill-health; and, secondly, both his ability to form a rational judgement was coupled, to a lesser extent, with his impaired ability to exercise self-control. Those factors should have led to a lower level of retained culpability. The Respondent's Submissions[20]On behalf of the respondent, Mr Brown KC, and through the Respondent's Notice, it is submitted that the judge was entitled to find that no further assessment was necessary, after the appellant had been medically assessed on many occasions over the preceding 20 months prior to sentence. He was not in a hospital setting at the time of sentence and had been released from the Reaside Clinic back into the prison system on 20 April 2022 (10 months before sentence). Further, Dr Kennedy's support for further assessment was not on the basis that it was essential for the purposes of sentence, but only that the court might wish to defer sentence for additional enquiry to be made. It is also submitted that Dr Farnham's report expressed the view that there may be deterioration in the appellant's mental health which may be likely to deteriorate in the future. This is not sufficient, argued Mr Brown, for the reasoning of the sentencing judge to be wrong in refusing a further adjournment. Further, the respondent argues that the judge was correct in assessing high culpability and imposing the sentence that he did. It was for the judge to determine culpability based on all of the evidence and not confined only to the opinions of the relevant psychiatrists. Further evidence after the Single Judge's decision granting leave[21]On 23 June 2023 the Registrar directed that a report should be prepared by Dr Farnham (the appellant's expert) and if supportive of his case, the parties should be asked to agree a second expert to be instructed to consider the issue of hospital orders under s.37, s.41 and s.45A Mental Health Act 1983. There followed substantial delay - not entirely caused by the appellant's unwillingness to comply with the need for further reporting. Such unwillingness as existed was accepted to have been largely as a result of the appellant's mental ill-health. The Registrar continued to manage the case progression of the appeal, leading to the provision of a report on 31 January 2024 by Dr Gillian Bennett, a consultant forensic psychiatrist approved under the 1983 Act. Her report stated:
"Mr Smith was convicted of manslaughter (diminished responsibility). It was agreed he was psychotic at the material time. Although he is not currently floridly psychotic, I do wonder if he may be presenting with negative symptoms of schizophrenia. In my opinion Mr Smith remains unwell. He does not appear to have capacity to conduct legal proceedings and the court may wish to adjourn his appeal."
The Registrar subsequently listed the appeal before the Full Court. Discussion[22]This was undoubtedly a difficult sentencing exercise by a very experienced judge. The appellant had clearly been suffering mental disability in the lead up to and carrying out of a dreadful killing of a blameless young man doing his job trying to assist the appellant. However, the appellant's mental health improved significantly from the time of the offence. He became fit to plead, and after mental health treatment in the Reaside Clinic, was returned to prison whilst on remand. He no longer received treatment, although he was prescribed antidepressant medication; he had decided not to take it because he did not like the side-effects. This is not to say that the appellant was entirely well; his family were very concerned about his health and brought it to the attention of others.[23]By the time of sentence, however, he was beginning to show signs of some deterioration, leading Dr Farnham and Dr Kennedy to raise the suggestion that further reporting might be obtained as to whether he was exhibiting signs of psychosis. It was this picture which presented itself to the judge at the sentence hearing.[24]Whilst it would have been open to the judge to accede to the application to adjourn sentence for further investigation, it does not mean that his refusal to do so was wrong in principle. The sentence hearing was some 20 months after the offending and the appellant's mental health had improved considerably. Medical treatment was available within the prison system to treat the appellant if he became unwell.[25]In our judgment the decision made to refuse to adjourn sentence was entirely reasonable on the facts of this case. The judge correctly addressed the issues, and with the significant improvement of the appellant's mental health, leading to him returning to prison on remand in 2022, no longer receiving psychiatric treatment and declining to take his medication, the adjournment was not necessary. We are satisfied that the judge's decision was not wrong.[26]The most recent report of Dr Bennett on 24 January 2024 (which postdated the sentence hearing and was not before the judge) refers to the appellant's capacity but does not conclude, even at this time, that he has developed relevant mental ill-health to significantly affect the sentence.[27]Whilst the judge concluded that a sentence disposal under the Mental Health Act 1983 was inappropriate, the finding that the appellant was a dangerous offender was inevitable given the seriousness of this killing. Further, given the evidence of the appellant purchasing a knife shortly before the offence, having made internet searches for revenge killing, made rational calls to the insurance company that morning, and then approaching the deceased and asking him to leave the office before attacking him, it was entirely appropriate to conclude that retained culpability was high. We are not persuaded that it was wrong, nor that the custodial term was excessive.

Conclusion

[28]In the circumstances we must conclude that the judge's decision whether to refuse to adjourn sentence to obtain further reports cannot be criticised as wrong, nor that the judge should not have found retained culpability to be high. This sentence was neither wrong in principle nor excessive, and therefore we must dismiss this appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk