R v Ellis Coulson [2026] EWCA Crim 1097

[2026] EWCA Crim 1097Case No 202404405 A5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
His Honour Judge Timothy Spencer KC
33JJ2381623
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/08/2026
Before
LORD JUSTICE POPPLEWELLSIR GARY HICKINBOTTOMTHE RECORDER OF REDBRIDGE(Her Honour Judge Rosa Dean)(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
REXRespondentELLIS COULSONAppellant
Peter Joyce KC & James Varley (instructed by City Criminal Lawyers) for AppellantJeremy Janes (instructed by The Crown Prosecution Service) for RespondentHearing Hearing date : 18 August 2026
Approved JudgmentThis judgment was handed down remotely at 9.25am on 21 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The appellant was sentenced by His Honour Judge Timothy Spencer KC in the Crown Court at Leicester to an extended determinate sentence of 14 years comprising a custodial element of 9 years imprisonment and an extended licence of 5 years for a knife attack on two victims on 3 November 2023. That involved two offences of wounding with intent contrary to s. 18 of the Offences Against the Person Act 1861 and one of having a bladed article. The Judge imposed further concurrent sentences for various offences committed on earlier occasions, which had been committed for sentence from the magistrates’ court; they were two offences of criminal damage, one of burglary and one of interfering with a vehicle contrary to s. 12 of the Theft Act 1968. The Judge further made a hybrid order under s. 45A of the Mental Health Act 1983 (‘the MHA’) comprising a hospital direction and a limitation direction. The appellant appeals against sentence with leave of the single judge. His main ground is that the Judge ought to have imposed a hospital order under s. 37 of the MHA with a restriction order under s. 41. In the alternative he argues that the custodial term of 9 years was manifestly excessive.

The offences

[2]The offences Late in the evening on 3 November 2023 the appellant was standing at the serving hatch at a BP Petrol station in Leicester buying snacks and drinks. The incident was captured on CCTV. Two other men arrived and waited behind him and he can be seen on the footage talking to them apparently amicably. His two victims, Toyton Pegg and Zach Flynn arrived with two young women and they joined the queue. Then in an entirely unprovoked attack the appellant took out a knife and in a flurry of quick blows slashed the neck of Toyton Pegg, grabbed Zach Flynn by his coat and made two strikes to his neck, one of which penetrated his coat. Mr Pegg suffered a large diagonal cut to his neck, 10 cms long and penetrating 2.3 cms into the muscle and exposing the jugular vein. Mr Flynn suffered a wound to the neck which was about 2 cm long and which penetrated into the muscle to a depth of 2.5 cms and caused some veinous bleeding. Luckily in both cases there was no severance of the jugular vein and both young men were discharged from hospital relatively quickly following stitching of the wounds without suffering complications. The victims were not known to the appellant and the attacks were apparently motiveless.[3]The appellant fled the scene by getting on his bicycle and cycling away. He then went to the house of a friend who drove him to Bournemouth, where he remained evading the police searches for him before handing himself in 11 days later following reports in the local press. During that period his partner gave birth to his child. The knife was not recovered. He has always maintained that he has no memory of the incident. He was 20 years old at the time.[4]He was charged with two counts of attempted murder and one count of possessing a bladed article. He did not indicate pleas in the Magistrate’s court where he appeared clearly unwell. On appearance in the Crown court matters were adjourned for reports regarding a potential defence of automatism, raised by a consultant forensic psychiatrist Dr Davies. After that hearing and while on remand his mental health deteriorated and he became unfit to plead and was transferred to hospital for treatment.[5]By the time he later became fit to be tried he had passed his 21st birthday. An automatism defence was ruled out by doctors during the course of his hospital admission, following which he entered pleas to two alternative counts of s.18 wounding and possessing a bladed article, which were acceptable to the Crown.[6]The matter was adjourned for further medical reports to assist the court with disposal. They all concluded that he suffered from lifelong schizophrenia with a poor prognosis, a family condition suffered also by his father and grandfather.[7]The other offences for which he was committed for sentence from the magistrates court included a night time dwelling house burglary the previous year, in May 2022, in which the occupants saw the appellant entering through an open window, with two other men standing in the garden. He was deterred from proceeding further by one of the occupants and fled without having taken anything.[8]It is common ground that in this case the appellant qualified for a hospital order under s. 37 (2)(a)(i) of the MHA, and that the effective choice for the Judge was between on the one hand making a hospital order under s. 37 with a restriction order under s. 41 instead of any sentence of imprisonment; or on the other imposing a sentence of imprisonment but additionally making a hybrid order under s. 45A(3) which involves a direction for the prisoner to be removed to and detained in hospital rather than in prison, and a direction that the s. 41 restrictions apply (defined in the statute as a limitation direction but having the same effect as a restriction order). A restriction or limitation order under s. 41 means that the offender may only be released from hospital on the order of the Secretary of State, on appearing to the responsible clinician to be sufficiently recovered to justify discharge from hospital, subject to review by the First tier Tribunal (Mental Health) and the release may be made subject to conditions.[9]We will come to the differences in the respective release regimes in a little detail, but the two key differences between a s. 37/41 hospital and restriction order, and a s. 45A hybrid order, were identified by Lady Carr of Walton on the Hill CJ in R v Calocane [2024] EWCA Crim 490 in these terms at [63]: 10. “A key difference between a hospital and restrictions order, on the one hand, and a hybrid order, on the other, is that if an offender who is subject to a hospital and restrictions order recovers so that they no longer need to remain in hospital, they will be released into the community. In contrast, if an offender who is subject to a hybrid order recovers such that they can be discharged from hospital, they will be transferred to prison (at least before expiry of the minimum term). The other key difference is that, where an offender is under a hospital and restrictions order, the decision whether they will be released into the community will subject to the consent of the Secretary of State, after consultation with the responsible physician, whereas if an offender is subject to a hybrid order, and has been discharged from hospital, the decision about whether they should be released from prison will be a matter for the Parole Board.”[11]Also of potential relevance is s. 47 of the MHA which in relation to most adult serving prisoners enables the Secretary of State to transfer a prisoner to hospital whilst in custody if appropriate for the treatment of a mental disorder. In such a case the transfer has the same effect as if there were a hospital order under s. 37, to which by s. 49 of the MHA the Secretary of State can also attach the s. 41 limitations.

The release and recall regimes

[12]The release and recall regimes Under a s. 37 hospital order, release is governed by the provisions of the MHA. An offender is kept in hospital for so long as his treating clinicians regard it as necessary, or unless his discharge is ordered by a mental health tribunal to which application may be made on his behalf. If and for so long as there is a s. 41 restriction order in place, he may only be released with the authority of the Secretary of State, with the responsible clinician or mental health tribunal making a recommendation. The release from hospital may be and usually is subject to conditions (as to which see below). Where the discharge is conditional the Secretary of State has the power to recall the patient at any time for so long as the restriction order continues in place.[13]Under a prison sentence with a hospital direction, the release regime differs depending on when (if at all) the offender becomes well enough to be discharged from hospital. The s. 41 limitation automatically lapses at the point when he becomes entitled to automatic release by reason of s. 50(3) MHA (in this case after 9 years). Accordingly:(1) If he does not become fit for discharge from hospital until after the end of the 9 year custodial element of the extended determinate sentence he will be subject to the same release regime as if a simple s. 37 hospital order had been made (without a s. 41 limitation which will have lapsed after 9 years).(2) If he becomes fit for discharge from hospital during the custodial element of the sentence (here 9 years) he will be transferred to prison, where his mental health will no longer be treated in a hospital setting but by the prison mental health system. Upon transfer to prison the s. 37 hospital order ceases to have effect. If he once again requires hospital treatment during this period in custody, the Secretary of State can transfer him back to hospital under s. 47 of the MHA. Such retransfer has the same effect as if there were a hospital order under s. 37 to which the Secretary of State may attach the s. 41 limitations pursuant to s. 49 MHA. Otherwise he is eligible for release subject to the usual prison regime, being subject to the decision of the Parole Board between 6 and 9 years into his sentence, and subject to licence conditions whenever released up to the end of the 14 years of the extended determinate sentence. Thereafter he is not subject to any enforceable conditions of restriction or supervision in the community.(3) There are three aspects in which the release/licence/recall conditions in release from prison custody are less robust than under a community treatment order or conditional discharge from hospital made consequent on release under a hospital[14]In R v Nelson, Dingemans LJ also referred to the practical disadvantages of returning to prison an offender who is being treated for a delusional disorder and has had a tendency to seek to mitigate it through the use of illegal drugs. He said this at [36]: 15. “The evidence from Dr Linton and Dr Cumming showed one practical disadvantage of returning to prison an offender who had been treated for a delusional disorder in hospital and who required to take anti-psychotic medicine. This was that many such offenders ceased to take the medication on return to prison. This was because there was no obvious advantage to the offender in taking the medication, and also because a side effect of taking the medication was that awareness of people and surroundings was suppressed, which some prisoners considered made them more vulnerable in a prison environment. Stopping taking the medication causes the offender to relapse and require further treatment. This was a point identified in R v Rendell [2019] EWCA Crim 621; [2020] MHLR 60. Dr Cumming’s evidence also showed that illegal drugs were more likely to be available in prisons than in hospital, all of which could lead to a deterioration of the mental disorder of such an offender followed by a return to hospital.”[16]The prospect in that case, therefore, was what the court described as a “yo-yo between prison and hospital for the foreseeable future”. That is inevitably deleterious to the offenders mental health which itself increases his ultimate risk to the public, and creates a risk for those in the prison environment including other prisoners and prison officers.

Authorities

[17]Authorities In R v Vowles [2015] EWCA Crim 45 | [2015] 1 W.L.R. 5131 [2015] 2 Cr. App. R. (S.) 6, Lord Thomas CJ said at [51]: 18. “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.”[19]At [52] he went on to emphasise that in relation to the fourth of those factors the sentencing Judge should pay very careful attention to the different effect in each case of the conditions applicable to and on release.[20]In R v Edwards [2018] EWCA Crim 595 [2018] 4 WLR 64 Hallett LJ, the then Vice President of the Court of Appeal Criminal Division, said at [12]-[14]:
“12. …Consideration of a section 45A order must come before the making of 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. 13. The reason for the court’s emphasis on the penal element of any sentence in R v Vowles (Lucinda) is to be found in the purposes of sentencing set out in section 142(1) of the Criminal Justice Act 2003. They are: “(a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.” 14. 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, section 143(1) of the Criminal Justice Act 2003 provides that the court must consider the offender’s culpability in committing the offence and any harm caused, intended or foreseeable. Hence the structure adopted by the Sentencing Council in the production of its definitive guidelines and the two pillars of sentencing: culpability and harm. Assessing the culpability of an offender who has committed a serious offence but suffers from mental health problems may present a judge with a difficult task but to comply with section 142 and the judgment in R v Vowles (Lucinda), he or she must attempt it.”
[21]The Sentencing Council Overarching Guideline on Sentencing Offenders with Mental Disorders states that culpability may be reduced if an offender was at the time of offending suffering from a mental impairment or disorder, and if there is a sufficient connection between the offender’s impairment or disorder and the offending behaviour. A careful analysis of all the circumstances of the case and all relevant materials is required to determine the extent, if any, that the impairment or disorder be relevant to culpability.[22]In R v Calocane [2024] EWCA Crim 490 [2024] 4 All E.R. 1063, the Court emphasised at [85] that a key factor in such as the present is the strength of the link between the offender’s impairment and the offending in question.

The medical evidence before the Judge

[23]The medical evidence before the Judge The appellant had a history of engagement with mental health services without, for most of that time, a definitive diagnosis.[24]He had been admitted as a patient under the MHA in April 2023, some 6 months before the incident, to the Bradgate Unit, which is a mental health unit attached to the Glenfield hospital in Leicester. He had a working diagnosis of Bi-polar Disorder. He lied to the team in order to be discharged, telling them his symptoms had been resolved. Whilst there he was prescribed with the antipsychotic risperidone, which ameliorated but did not eliminate his psychotic symptoms. After discharge he was switched to chlorpromazine, following which his mental state deteriorated again.[25]When on remand for the index offences at HMP Manchester, the mental health team diagnosed him as suffering from paranoid schizophrenia.

The Judge had reports from three well qualified consultant forensic psychiatrists:

[26](1) Dr Steffan Davies who had seen the appellant on 31 October 2023 a few days before the s. 18 offences took place, having been instructed by the defence in relation to fitness to plead issues relating to the earlier offences which were committed for sentence from the magistrates court, as well as on several subsequent occasions;(2) Dr Sally Foster, who had been had been his treating clinician from 9 May 2024 following his transfer to St Andrew’s Hospital in Northampton from prison in early 2024, and remained so at the date of sentencing; and(3) Dr Matthew Appleyard who was instructed by the CPS. There was relatively little disagreement between them.

Dr Foster

[27]In her addendum report of 2 November 2024 Dr Foster confirmed the diagnosis in her earlier report that the appellant was suffering from long term paranoid schizophrenia, and continued to experience paranoid delusions and auditory hallucinations together with thought disorder alongside depressive and manic symptoms. The diagnosis was reinforced by his father and grandfather suffering from paranoid schizophrenia, of which there is a strong genetic component. She recorded him as saying that on the night before the incident he had taken 3.5gms of cocaine and that he had smoked a spliff on the day of the incident.[28]Dr Foster reported information provided to her by the appellant’s mother, who gave a history of his having experienced mental health problems from a very young age. In relation to the medication provided during and after his stay in the Bradgate Unit, Dr Foster described chlorpromazine as one of the older antipsychotic medications and said that it was not clear why the community team had decided to switch from risperidone to chlorpromazine in terms which implied, but tactfully did not express, criticism. Both the appellant and his mother reported that following this switch his mental health had deteriorated.[29]As to culpability for the offending Dr Foster said this at 3.6: 30. “It remains extremely difficult to reach any firm conclusions on level of culpability, given Mr Coulson’s continued report of no recollection of the offence itself. However, what is clear is that Mr Coulson was presenting with clear symptoms of psychosis immediately before the offence. He was experiencing auditory and possibly visual hallucinations. He reported feeling at risk from others, and believed he was being watched and followed. He reported to carrying a knife in order to protect himself. Whilst his underlying personality difficulties may have made him more likely to act in a violent way, in my opinion, the evidence is more suggestive of his actions being driven by positive symptoms of his psychosis including auditory hallucinations and paranoid delusions.”[31]In terms of sentencing disposal she recommended a s.37/41 hospital order with a restriction order rather than a hybrid s. 45A order. She said this at 3.7 and 3.8:
“3.7. Whilst remanded in prison, his mental health was poor, with florid symptoms of psychosis, poor compliance with medication and his behaviour put himself and others at risk. In my opinion, he meets the criteria for detention in hospital under S37 MHA 1983 (as amended). Furthermore, his actions when acutely unwell, means he poses a significant risk of serious harm to the public, and I would therefore respectfully recommend that the court consider use of a Restriction order under S41 MHA. Imposition of a Hospital Order with restrictions will allow necessary treatment in hospital, to address all aspects of his mental disorder. The restriction order will ensure that discharge is very carefully planned and can only take place when either the Secretary of State or a Tribunal are satisfied that he no longer requires treatment in hospital. At that point, he would be made subject to a Conditional Discharge. Conditions of any discharge are very likely to include his ongoing compliance with medication, engagement with members of a community mental health team and abstinence from illicit substances. Any breaches of conditions, or deterioration in his mental health would result in an immediate recall to hospital. In my opinion, this is the safest option to reduce the risk of future relapse and the associated risk of harm to the public. Re-offending rates of patients conditionally discharged from S37/41 MHA are known to be comparatively low compared to prisoners released from determinate sentences (roughly 6% reoffending rate compared to 50% rate in released prisoners). 3.8. I have considered the option of a hybrid order under S45A MHA. Whilst this section would allow Mr Coulson the option of initial treatment in hospital for his mental illness, I do have concerns regarding the future treatment, stability of his mental health and associated risk management. In the event Mr Coulson were to return to prison, there is a significant risk of him being non-compliant with treatment and his mental health declining. The prison environment itself is likely to have a counter therapeutic effect, and put him in a position of being faced with de-stabilisers, such as freer access to illicit drugs, being with a pro-criminal peer group, and lack of therapeutic support from a skilled nursing and multidisciplinary team. In addition, when he were released from the associated custodial sentence, he would not be subject to the conditions associated with the restriction order, and is likely to have less psychiatric support than his discharge directly from hospital. With these in mind, it is my opinion that a hybrid order would be less effective in managing the risk of a relapse of his illness, and the future risk to the public. Clearly the necessity for a penal element to the disposal, is a decision for the court.”
[32]Dr Foster gave evidence at the sentencing hearing confirming that on transfer to her care in early May 2024 the appellant presented with symptoms of psychosis with auditory hallucinations and complex paranoid delusions; these had persisted and although his mental state had improved with regular medication it had fluctuated over the course of the admission as a result of the need to change the medication from risperidone due to adverse side effects. He had by this stage been under her clinical care for about 6 or 7 months and she confirmed that they were still struggling to find medication which was both effective and without adverse side effects, and the correct dosage. His paranoid schizophrenia was a lifelong condition which would require lifelong treatment and medication. It was extremely likely that if untreated at any time his risk of violence would increase. As to the benefits of a hospital order over a hybrid order in managing these risks she said that it would in any event be quite some time, measured in years, before he would be likely to be considered suitable for discharge from hospital and there would then be a staged approach of transfer to low secure accommodation. Under a hospital order he would then possibly be moved to a rehabilitation hospital before being released into the community. Release into the community would likely be to supervised mental health accommodation. The conditions of his release would most likely include that he be compliant with taking his medication; and requirements to meet his psychiatric supervisor, to live in the supervised accommodation and be abstinent from illegal drugs with regular and random drug testing. He would be under the supervision of a community psychiatric nurse and a supervising consultant psychiatrist. If he were in breach of any of those conditions he would be recalled directly to hospital which could be achieved in a matter of hours simply by a phone call. By contrast if he were to be released from prison, how he would be treated in the community would be very variable. It was unlikely he would have supported accommodation. She believed that he was likely have a community psychiatric nurse and supervising psychiatrist on release from prison on licence but there would be no conditions that he engage with them or comply with their treatment requirements. Any recall would not be achieved through his psychiatrist but through the parole board and could take several days. Accordingly in terms of risk management in relation to harm to the public a hospital order provided greater security.[33]When question by the Judge, Dr Foster confirmed that the appellant had told her that he had lied to the team at the Bradgate Unit in order to secure his release; and that there were other inconsistencies in his account to the various clinicians of his use of illegal drugs around the time of the offending, which rendered him an unreliable narrator, which Dr Foster described as a very common feature of paranoid schizophrenics. He had told her that he had taken 3 ½ gms of cocaine on the night before the attack on his two victims which she said would have contributed to his degree of psychosis.

Dr Appleyard

[34]Dr Appleyard In his report dated 31 July 2024 Dr Appleyard confirmed his agreement that the appellant was suffering from schizophrenia. In addressing whether a hospital order or a hybrid order was more appropriate he too recommended the former for the following reasons. Following conditional discharge from a hospital order he would be very regularly seen by a responsible clinician as well as a social worker. He could be immediately recalled upon any sign that he remained mentally disordered. Dr Appleyard’s concern with release on licence from prison was that it does not offer mandatory mental health treatment or supervision on release. Once returned from hospital to prison under a s. 45A order he could not be released with any form of compulsory psychiatric treatment and might not be managed by forensic mental health services. He would at best return to adult mental health service input, which does not specialise in the identification or management of risk. That would increase the appellant’s future risk to the public. As to culpability, Dr Appleyard said “I am of the opinion that Mr Coulson’s schizophrenic illness impacted on his behaviour at the time of the incident as well as his use of substances.” The latter was a reference to the appellant reporting to Dr Appleyard that he had had a spliff on the day in question.

Dr Davies

[35]Dr Davies Dr Davies provided four reports each an update from the previous ones following further interviews with the appellant and/or further information. He agreed with the diagnosis made by Dr Foster and Dr Appleyard and with their recommendation for a hospital order. As to the latter he said that following a hospital treatment pathway through medium security, low security, open rehabilitation settings and into specialised mental health supervision would provide more robust mental health treatment in the community from a specialist community forensic mental health team. This would be more effective than the accommodation and services provided on release from prison.

Sentencing remarks

[36]Sentencing remarks The Judge identified the facts of the offences and the agreed medical evidence as to the appellants lifelong schizophrenia. He drew attention to the inconsistencies in what the appellant had told the clinicians as to his drug use, having told two of them he had taken 3.5 gms of cocaine but denied any drug taking to the third; and referred specifically to his account not only of taking 3.5gms of cocaine the night before but also cannabis on the day and what was described as “more extensive drug use in the days preceding [these offences]”[37]He referred to the authorities of Vowles, Edwards, Nelson and Calocane and cited the four factors identified in [51] of Vowles. He determined that the retained culpability of the appellant, despite his schizophrenia, was “at the very least medium, if not high” for two principal reasons. The first was that he showed presence of mind in quickly escaping the scene and escaping the police and lying low for some 11 days. The second was his own contribution to his psychosis by taking illegal drugs including cocaine the day before and cannabis on the day of the incident.

The Judge then said this:

“I am, I am afraid, ultimately unpersuaded that the regime on release provides any more protection from the public if it were release under 37/41 than if it were release under 45A. I have read the reports with some care. I have listened with care to what Dr Foster says. I am unpersuaded, as I said, that the public are better protected by one as opposed to the other. If one follows what the psychiatrists are saying to a logical conclusion, there would never be a case for a 45A hybrid order. In other words, Parliament passing that piece of legislation, which they only did relatively recently, would have been passing a worthless piece of legislation. I cannot take that view as a lawyer of statute. The next matter I must turn my attention to is whether Ellis Coulson is dangerous, applying the statutory test. Given the huge weight of psychiatric opinion and the circumstances of these offences themselves, I have no hesitation in concluding that he is dangerous, applying the statutory test, and poses a significant risk of harm to the public for a very long time. In finding him dangerous, that leads me ultimately to pass an extended sentence. That addresses some of the points raised by the psychiatrists. It means that on release from prison it will not be what I will categorise as an ordinary release, which the psychiatrists have concerns about, but it will be release on extended licence. Attached to that extended licence could be a whole raft of conditions, which would require psychiatric intervention, and therefore the sort of immediate trigger, in terms of psychiatric treatment, if there were any sign of a relapse. So by imposing an extended sentence, it seems to me that I achieve more by way of public protection than is offered by the psychiatrists under 37/41.”
[38]The Judge then considered the appropriate length of the custodial element of the sentence. It was agreed between counsel that the offence against Mr Pegg fell within category A1 of the Sentencing Council Guideline which has a starting point of 12 years and a range of 10 to 16years; and that the offence against Mr Flynn fell within category A2 which has a starting point of 7 years and a range of 6 to 10 years. He took the starting point for the offence against Mr Pegg as the lead offence and increased it to 14 years to take account of all the other offending and gave full credit for plea in reducing it to a custodial term of 9 years, passing concurrent determinate sentences on the other counts and for the offences committed for sentence. He made the s. 45A hybrid order.

Further medical evidence

[39]Further medical evidence The appeal came on before the full court (Lewis LJ, McGowan, Linden JJ) on 7 October 2025. The Court adjourned the hearing and gave directions which included the following: 1. Dr Foster and Mr Appleyard to prepare a report on the following matters:(a) the impact of the psychosis suffered by the appellant on his offending actions on the night in question(b) the impact of drug taking on the day of the offences and in the period immediately before the offences on the appellant’s offending behaviour and(c) the relevance or otherwise of the subsequent behaviour on the night immediately following the stabbing and, in the days, after the offences had been committed in any assessment of the appellant’s culpability for his actions on that night. 3. The prosecution and the appellant to provide detailed skeleton arguments which will deal with the issues in this appeal, including, but not only: (a) the law applicable to an assessment of retaining criminal liability (b) submissions on the judge’s assessment of the extent to which the appellant retained responsibility for his actions on the night in question (c) the powers available and governing release of the appellant under both section 45A of the Mental Health Act 1983 and section 37 or section 41 of the Mental Health Act 1983, first if the appellant remained in hospital throughout the entirety of the extended sentence, second if he returned to prison during the custodial term of the extended sentence, third during any period of release during the period the extended licence; and fourth, after the end of the extended sentence. 4. The prosecution to attend the hearing of the appeal. 5. Granted a Representation Order for King’s Counsel to the appellant. 6. A transcript of the hearing, including the evidence given at the hearing by Dr Foster,[40]As a result we have had further reports from Dr Foster and Mr Appleyard, skeleton arguments from Mr Joyce KC and Mr Varley for the appellant and Mr Janes and Ms Attenborough for the Crown, and heard oral argument from Mr Joyce and Mr Janes. We are very grateful for the further assistance with which we have been provided from all those quarters.

Dr Appleyard’s post sentence report dated 16 November 2025

[41]Dr Appleyard’s post sentence report dated 16 November 2025 Dr Appleyard had had a further video interview with the appellant on 13 November 2025. He was responding well to his new medication of two anti-psychotics and medication for ADHD. He was asked again to give an account of the circumstances surrounding the offences. The report recorded:
“He stated: “I was going through a bad time. I was taking drugs. I wasn’t in the right frame of mind. I thought CIA and MI5 were after me. I was in my baby mother’s house. I was hearing voices. I heard a helicopter, and I went into the daughter’s bedroom and looked out the window. I saw a helicopter landing. The voice was telling me to get out. They told me to get a knife. I left. The voice was telling me it was MI5 and CIA, who were after me. I was in the street, cutting my arms. I thought people were following me. And then bang. Something’s happened in my head. The next minute I am running down the street. The next minute I am at my mate’s house, and he’s telling me we’ve got to go. I didn’t know what was happening. We went to his car, and I fell asleep. I woke up on the motorway. He said I’d done a mad thing. He told me I came to his house with blood on a knife. He told me he had to get me out of the city. He told me I was crazy and was talking to myself. He got me out the city. I was then in a hotel in Bournemouth. Another mate then rang me. He said to look up Leicestershire Live as two people had been stabbed. I was like shit. This is not good. I thought I was going to jail for a long time. I stayed on the run until my daughter was born. I was going to stay on the run as I was worried about prison. I held my daughter. I thought I needed to serve my sentence for my daughter….”
[42]On this occasion the appellant told Dr Appleyard that the day before the offence he took four or five Xanax (a benzodiazepine used to treat panic and anxiety disorders), smoked one or two spliffs and used 3 to 4 gms cocaine. He did this to cope with the voices he was hearing. An hour before the offences he drank a 350ml bottle of magnum wine (a fortified tonic with a 16.5% alcohol content).[43]Dr Appleyard confirmed his diagnosis of schizophrenia and now of ADHD. In relation to the impact of his psychosis on his offending he said “I am of the opinion that Mr Coulson’s psychotic disorder impacted on his behaviour at the time of the night in question. He was suffering from a wide range of psychotic symptoms, including delusional beliefs and hallucinatory experiences.”[44]In relation to the effect of his substance misuse, Dr Appleyard noted the differing accounts he had given, but on the basis of the account in his most recent interview, Dr Appleyard opined that the substances are likely to have increased the severity of his psychotic symptoms and therefore had some impact on his offending behaviour.[45]In relation to his conduct after the offences, Dr Appleyard’s view was that avoiding the police after committing the index offences did not necessarily increase his culpability; he was suffering from a major mental disorder with persecutory beliefs and hallucinatory experiences and is unlikely to have been thinking clearly at the time.

Dr Foster’s post sentence report

[46]Dr Foster’s post sentence report Dr Foster had also interviewed the appellant again, on the ward. She was no longer his treating clinician. She said that on the night before the offence he had taken cocaine and that on the day he had taken 3 Xanax tablets, smoked a couple of spliffs and consumed some magnum wine. He gave a similar account of his mental state before and after the offending as that he had given to Dr Appleyard. In Dr Foster’s post sentence report she summarised her conclusions as follows:
“2.5. The psychosis had a significant impact on Mr Coulson’s actions on the night of offences. His actions appear to have driven by his experience of psychosis, whereby he believed he was at risk of being seriously harmed by unknown others. 2.6. Drug taking in general over many months and years will have impacted on the development and sustained nature of Mr Coulson’s psychosis and therefore ultimately to his actions at the material time. In the lead up to the offence, and immediately prior to this he had been consuming illicit substances, which may have contributed to symptoms. The intoxicating effect of illicit substances he had consumed in combination were likely to negatively impact on his coordination, judgement and memory, and may have further disinhibited him. However, in my opinion they were not the major driver to him acting in a violent manner at that time. 2.7. Following the incident, Mr Coulson fled the scene and spent several days at large, purposely evading arrest, although he did ultimately hand himself into the police. This strongly suggests he was aware that he had done something illegal, although he maintains he has poor recollection of events. However, it appears his actions in relation to him fleeing the scene, relate to his immature way of dealing with the realisation that he has acted in a seriously violent manner in a young man who was under the influence of substances and by the nature of his mental disorders, was impulsive and had poor coping skills.”

Discussion

[47]This was a difficult sentencing exercise which the Judge approached by reference to the authorities which provide guidance in this area. He correctly identified that the appropriate order was a matter for his decision not that of the experts and that he was not bound to follow their unanimous recommendation of a hospital order and restriction order. Mr Janes submitted that the Judge correctly identified and sought to apply the four factors set out in Vowles at [51] and the balancing of those factors was a matter for his evaluative assessment. The conclusion he reached was within the range of conclusions properly open to him.[48]We do not feel able to accept this submission because in our view the Judge fell into error in the way he approached the expert evidence in relation to the different release and recall regimes, and in treating a hybrid order as equally or more efficacious for the purposes of managing the ongoing risk posed by the appellant and so protection of the public.[49]The clear unanimous evidence of the experts was that the release and recall regimes of a hospital order would provide greater protection for the public than a hybrid order in the case of this appellant for the reasons identified above. For a person with a lifelong psychotic illness which can only be controlled by taking appropriate medication and abstinence from illegal drugs, and which has been shown by the offending in this case to involve the risk of very serious harm to the public in the absence of such control, the protection of the public from harm is distinctly better served by a hospital and restriction order than a hybrid order. That accords with similar conclusions reached in other cases involving dangerous offenders with lifelong psychotic disorders requiring lifelong medication where there is a risk of serious harm to the public if the medication is not taken or is not working effectively: see Vowles at [50(iv)], Nelson at [38]-[39], [44]; R v Walker [2023] EWCA Crim 548 [2023] 2 Cr App R S 39 at [37]; and Calocane at [86]. The Judge was not bound to follow the opinions of the experts but if he was to reject them it was incumbent upon him to give a cogent explanation for doing so. In this case he merely said that he was “unpersuaded” by Dr Foster’s evidence that there was a difference so far as protection of the public was concerned. However, that was not only the opinion of Dr Foster but also of Dr Appleyard and Dr Davies; and it was based on their evidence of the way in which each regime would be applied in practice for this particular appellant, evidence which accorded with that recorded and accepted in the other cases to which we have referred. There was no evidential bass for doubting or rejecting this evidence. There was no proper evidential basis for the Judge’s conclusion that an extended determinate sentence with a hybrid order would provide better protection of the public than a hospital order.[50]The Judge’s suggestion that the logical conclusion of the psychiatrists’ contrary views was that there would never be an appropriate case justifying a s. 45A hybrid order was misplaced. The risk of harm to the public is one of the factors which falls to be considered, and an important one, but by no means the only one; culpability and the sentencing objective of punishment are also important and the balance will by no means always tilt in favour of a hospital order. Different mental health conditions and their prospective treatment will raise different considerations in each individual case. The views of the experts in this case in relation to the impact which the practical implications of the different regimes would have on the safety of the public were not inconsistent with a s. 45A order being appropriate in other cases.[51]This was an error of principle which vitiated the evaluative assessment of the Judge. It therefore falls to this Court to approach the balancing exercise afresh, and taking into account the further evidence which the full court directed to be adduced.[52]As to the first Vowles factor, the extent to which the offender needs treatment for the mental disorder, it is clear from the evidence of all the clinicians that this appellant will require lifelong treatment and that he is unlikely to be considered even potentially fit for discharge from a hospital order or a hospital direction for a number of years. His prognosis is such that that it remains likely that for the rest of his life he will remain a risk of causing serious harm to the public if his antipsychotic and other prescribed medication fails effectively to control his psychotic symptoms because he does not take it and/or his medication needs change over time and/or he reverts to illegal drug use. It is therefore a case in which it is readily foreseeable that the risk to the public which the appellant currently poses will not have disappeared at the end of the 14 year period of the extended determinate sentence imposed by the Judge after which he would be in the community without supervision to manage that continuing risk. A hospital order better meets this risk because it is indefinite in duration. This aspect assumes even greater weight if the term of the extended determinate sentence would fall to be reduced pursuant to the alternative ground of appeal, as we are inclined to think it would for the reasons which will be apparent in our consideration of culpability.[53]The second and third Vowles factors are linked, and require consideration of the degree of culpability involved in the offending and the need for punishment, which is strongly influenced by the extent to which the mental disorder was the cause of the offending. We would observe in passing that detention in a secure mental institution involves a deprivation of liberty which involves a significant degree of punishment for so long as it continues. The most important element of the difference in the punitive element arises in the event of a release from hospital before the end of the appropriate custodial term, which if under a hospital order is to the community but under a hybrid order is transfer to prison. This is, as the Court said in Edwards, a difficult assessment to make, but one which must be undertaken given the importance of the element of punishment where appropriate.[54]Although the appellant has no recollection of the attack itself, his account to the clinicians of his state of mind at the time, supported by Dr Foster’s evidence of his delusional auditory hallucinations whilst under her care, suggests that he was in the grip of a psychotic episode when making the attack on his two victims and that this was the cause of his behaviour. This is not one of those case which sometime occur in which culpability is to be found in failing to take prescribed anti-psychotic medication when the offender is aware of the potential consequences of failing to do so. He was taking the chlorpromazene which had been prescribed in place of risperidone following his discharge from the Bradgate Unit but it is tolerably clear from not only the appellant’s own account but also that of his mother that this was not effective to control his psychosis or prevent the psychotic episode.[55]The Judge identified two elements as indicating culpability. One was his conduct in leaving the scene on his bicycle, fleeing to Bournemouth and lying low. This was not raised by the Judge at the sentencing hearing and counsel had no opportunity to address it. The views of both Dr Foster and Dr Appleyard in their post sentence reports is that this conduct is consistent with the offending being caused by a psychotic episode in which thought disorder and/or subsequent awareness of what he had previously done would explain the behaviour without it suggesting any awareness of culpable behaviour in what he was doing when in the grip of the psychotic episode during the attack.[56]That leaves the question of the extent to which his voluntary taking of illegal drugs and/or alcohol contributed to the psychotic episode taking place. That raises two interrelated issues. One is whether the taking of illegal drugs or alcohol made a difference to the onset of the psychotic episode. The second is the extent of the culpability of a long term psychotic in self-medicating through the use of illegal drugs or alcohol.[57]As to the first the appellant was an unreliable narrator giving inconsistent accounts to the clinicians of his drug use in the 24 hours prior to the attack. It is reasonable to treat his account to the clinicians as recorded in their post sentence reports as a fair basis on which to approach sentence, having been given at a time when his medication was working well and being adverse to his interests and so not involving any obvious motive for fabrication. It broadly accords with what he told Dr Foster before the sentencing hearing. That involved taking 3 to 4 gms of cocaine the evening before and taking Xanax and smoking a spliff on the day of the incident, and half a bottle of fortified wine. Dr Foster’s view is that it is unlikely that that had a significant causative effect on him suffering the psychotic episode. Dr Appleyard is more equivocal in his view. We do not feel it necessary to try and reach a firm conclusion on this issue. Dr Foster recognises that the appellant’s long term abuse of illegal drugs will have affected his schizophrenia and so had some causative effect on his suffering the psychotic episode.[58]However, it is well known that self-medication by alcohol and/or drug abuse is common in schizophrenics and is driven by a desire to mitigate the effects of the condition. The appellant had not had a diagnosis of schizophrenia at the time and had effectively been left to his own devices in seeking to manage his illness, which was not being controlled by the medication he had been prescribed and which he had been taking. In all these circumstances we would treat the appellant’s illegal drug and alcohol abuse as involving culpability for the offending at the low end of the scale.[59]The fourth Vowles factor is the protection of the public. Here the evidence points to the public being much better protected by a hospital order, both because of its duration and because of the different release and recall regimes, for the reasons we have set out above. It is an important factor in this case in which the seriousness of the offending when in the grip of a psychotic episode emphasises both the importance of protection of the public and the risk associated with failure to take recommended medication and abstinence from illegal drug abuse as essential to control this risk.[60]Balancing these factors we conclude that the appropriate order in this case is a hospital order under s. 37 of the MHA with a restriction order pursuant to s. 41 of the MHA.

Conclusion

[61]Conclusion Accordingly the appeal is allowed. We quash the sentences imposed by the Judge on all the offences, that is to say counts 2, 4 and 5 of the indictment and all the offences committed for sentence from the magistrates’ court. We substitute a hospital order under s. 37 of the MHA with a restriction order pursuant to s. 41 of the MHA. The appellant’s detention in the secure St Andrew’s Hospital in Northampton where he is currently a patient will continue subject to those orders.

order

(a) Duration. Licence conditions following release from prison expire at the end of the licence period (i.e. 14 years from sentence in this case) whereas release conditions under a hospital order may last for a longer period and be indefinite. Moreover under a s. 37/41 order the restriction order lasts indefinitely unless and until there is an absolute discharge, whereas under a s.45A hybrid order it lapses when the automatic release date has passed (here 9 years): see s. 50(2) and (3) of the MHA. Thereafter the release decision is solely that of the responsible clinicians or a mental health tribunal, not the Secretary of State.(b) Supervision in the community. The provision for mental health treatment and monitoring is likely to be more robust under conditional discharge from hospital because it will be administered by a specialist forensic mental health team and will often involve supervised mental health accommodation and mandated medication (such conditions usually being imposed in a conditional discharge by the Secretary of State if a restriction order is in place, or by way of a Community Treatment Order by the responsible clinician if not); whereas on release from prison on licence, supervision may be carried out principally by a probation officer, or at best by normal community adult mental health services. In R v Nelson [2020] EWCA Crim 1615, Dingemans LJ referred to the fact that release under a hospital order will involve a community mental health team which would include a consultant psychiatrist and in most cases a mental health nurse, as well as a social worker; and that their supervision will be more regular than a probation officer in the case of release from prison on licence. Moreover although licence conditions on release from prison can require contact with mental health practitioners, they cannot compel the offender to comply with mental health treatment or require the taking of medication even if required or prescribed by the relevant mental health worker or psychiatrist; by contrast release from hospital under a hospital order can require as a condition of release active cooperation with continuing mental health treatment on pain of being recalled. In the latter case the offender remains a patient after release from hospital and the conditions can and usually do mandate medical treatment such as the taking of medication and/or depot injection and subjection to the frequent monitoring of mental health professionals.(c) Recall. An offender released from prison and still subject to licence can be recalled to prison if they breach their licence conditions, or commit further offences. Under a hospital order, a patient who has been conditionally discharged can be recalled in a wider range of circumstances, including at any time if he is considered to be a risk to himself or the public, or because a mental health practitioner considers that the patient’s condition is deteriorating. In practice this is a very quick process, and can be accomplished in a matter of a few hours by a simple phone call from the supervising clinician. For cases of recall on licence it usually takes longer and involves return to prison before potential transfer to hospital. A further difference in recall arises from the fact that parole board licence conditions will not generally include a requirement to take antipsychotic medication and a probation officer will not be able to intervene in the event of a subtle deterioration, which in any event his less regular supervision will be less likely to pick up. If the deterioration is only picked up upon commission of further offences serious harm may be caused to the public due to a delay in recall (see R v Nelson at [38]).