“This is the last time I will talk to you. After this I will leave you alone…Disassociate yourself from me. If anything happens don’t come and see me in hospital…this is not mental illness, I am fine. I’m not ill but there is 2-way communication and 24 / 7 voices in my head, they are intelligent people and they are making threats…I will send you the files I sent to Mum at Christmas… I know what is happening is real.”
‘Are you going to do something stupid?’
“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. 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.”
“6. The First Tier Tribunal (Mental Health) decides when the offender should be released when an order is made under ss.37/41. However, for section 45A orders the release regime differs depending on whether an offender is serving a determinate or indeterminate sentence of imprisonment. 7. If a s.45A patient’s health improves so that his responsible clinician or the Tribunal notifies the Secretary of State (“SoS”) that he no longer requires treatment in hospital under the MHA, the SoS will generally remit the patient to prison under section 50(1) of the MHA to serve the rest of his sentence. On arrival in prison, the s.45A order would cease to have effect and the offender would be released from prison in the usual way. 8. If there has been no improvement at the automatic release date, the limitation direction aspect of s.45A falls away. At that point, the patient remains in hospital but is treated as though they are subject to an unrestricted hospital order so that the point at which he is discharged from hospital is a matter for the clinicians, with no input from the SoS.”
“Section 45A and the judgment in Vowles do not provide a ‘default’ setting of imprisonment, as some have assumed. The sentencing judge should first consider if a hospital order may be appropriate under section 37 (2) (a). If so, before making such an order, the court must consider all the powers at its disposal including a s.45A order. Consideration of a s.45A order must come before the making a hospital order. This is because a disposal under section 45A includes a penal element and the court must have ‘sound reasons’ for departing from the usual course of imposing a sentence with a penal element. Sound reasons may include the nature of the offence and the limited nature of any penal element (if imposed) and the fact that the offending was very substantially (albeit not wholly) attributable to the offender’s illness. However, the graver the offence and the greater the risk to the public on release of the offender, the greater the emphasis the judge must place upon the protection of the public and the release regime.”
“It follows that, as important as the offender’s personal circumstances may be, rehabilitation of offenders is but one of the purposes of sentencing. The punishment of offenders and the protection of the public are also at the heart of the sentencing process. In assessing the seriousness of the offence, s. 143 (1) of the Criminal Justice Act provides that the court must consider the offender’s culpability in committing the offence and any harm caused, intended or foreseeable.”
“33. …. The purposes of a hospital order are rehabilitation of the offender and protection of the public, it is not concerned with punishment. 34. Further matters for the court to consider are the release regimes which will apply to the offender on release. A restrictions order under section 41 of the MHA gives the Secretary of State for Justice a role in the release and recall of offenders who have been sentenced under hospital orders. A restrictions order under section 41 of the MHA should not be passed just to mark the seriousness of the offence, but only where it is required to protect the public from serious harm. … 35. Section 45A of the MHA permits, in effect, the combination of sentences of imprisonment with hospital and restrictionss orders where the sentence is not fixed by law. The evidence before us showed that section 45A MHA orders were particularly appropriate in two situations: the first was where, notwithstanding the existence of the mental disorder, a penal element to the sentence was appropriate; and the second was where the offender had a mental disorder but there were real doubts that he would comply with any treatment requirements in hospital, meaning that the hospital would be looking after an offender (who might be dangerous) who was not being treated. … 37. Any court considering whether to impose a section 45A MHA hybrid order will need to make a careful assessment of the culpability of the offender, notwithstanding the presence of the mental disorder, in accordance with the guidance given in Vowles and Edwards. Practical guidance about how to do that is set out in the Guideline.”
“[it]is accepted that the Learned Judge approached the sentencing process in accordance with the relevant guidelines”
“Q. When it's put that there are aggravating features of planning and so on, as you've heard, we're actually talking, are we not, about one psychotic episode in which all these other events took place? A. Yes. All the features that were mentioned in terms of purchasing weapons, changing SIM cards, calling his brother, changing his shoes, discarding the holdall et cetera, all occur in the context of an active psychosis, yes. Q. You've seen the documents, the sentencing notes for the prosecution and the defence. You've seen all the authorities that have been provided to the court. You've seen all the witness statements, all the assertions as to his conduct over time. It, in fact, comes down, does it not, to this: all those aggravating features that say make it worse are, in fact, part of one psychotic episode of intense severity? A. Yes.”
“If release was ever proposed into the community this would most likely be considered at a Mental Health Tribunal. If discharged this would typically be conditional. Mr Calocane’s illness is likely to be lifelong and require close review of his mental health for subtle signs of relapse, ongoing prescription of psychiatric medication and monitoring of his compliance. Under this arrangement he would be monitored in the community by a mental health team (often a specific community forensic one). In this scenario if Mr Calocane’s mental state deteriorated he could be reviewed promptly and recalled to hospital under s 37/41 (almost certainly to a secure mental health hospital).”
“This is a chronic and enduring psychotic mental illness. His illness will never be ‘cured’, and he will require long term, very cautious management with antipsychotic medication and appropriate psychological and supportive interventions (almost certainly for the remainder of his life)….. The strong link between his mental disorder and offending makes the Section 41 Restrictions Order particularly apt for maintaining the protection of the public in the event of his conditional release (which I appreciate may be unlikely) from hospital in the future.”