Recent coverage by the BBC of a trial revealed a number of misunderstandings about criminal law where defendants are seriously mentally ill. Mohammed Nadeem was tragically killed in 2022 by Liam Hopson who was prosecuted for murder. The BBC’s initial article covering the outcome was that Mr Hopson had been ‘convicted of murder’ and sentenced to an indefinite hospital order, properly known as a restricted hospital order and less formally as a “37/41”.
This was the clue that something had been misunderstood, misreported or both.
Everyone convicted of murder is sentenced to life – absolutely everyone. The only sentence a court can impose after conviction is a life sentence and the judge has absolutely no scope to do otherwise, no matter how seriously mentally ill the person may be. In legal parlance, the sentence is “fixed by law”.
UNFIT TO PLEAD
If the outcome after a murder prosecution was a restricted hospital order, then one of three things could have happened to the defendant —
- Guilty of manslaughter on the grounds of diminished responsibility – this is what’s known as a partial defence to murder and still involves the criminal conviction of the defendant where their illness played a part, but was not determinative of the outcome.
- Found legally insane – this is a defence to any charge and means the jury became satisfied the defendant “did not know what they were doing or did not know what they were doing was wrong”.
- Found unfit to plead – anyone who is unable to instruct their defence or understand legal proceedings to which they are central, cannot be fairly tried so a different process is used to determine the outcome of criminal proceedings.
The BBC later corrected their article – albeit some problems remain with it! – and it is this latter outcome which prevailed in Mr Hopson’s case. It means there was a ‘trial of the facts’.
Where someone is unfit to plead, there still has to be legal assessment of whether they actually did the action of which they stand accused – did Mr Hopson stab Mr Nadeem or not? If he didn’t and would, for example, have been not guilty of murder if tried by a jury, then it would be entirely unfair of the criminal courts to make any decisions about his life or his mental health. He could instead be dealt with by mental health services and ‘sectioned’ under the Mental Health Act if necessary.
The jury in this case found, during a ‘trial of the facts’, that Mr Hopson did stab Mr Nadeem and whilst he cannot be convicted of murder or of anything else, it means the criminal courts have jurisdiction to protect the public from a defendant who poses a serious risk of harm despite the fact they remain un-convicted of any criminal offence.
RESTRICTED HOSPITAL ORDER
The 37/41 order is commonly found after criminal proceedings for serious offences but it can result from less serious crimes. Any Magistrate who believes it is necessary to do so can send such a case to the Crown Court for sentencing and the order can be imposed by a judge, if justified. This order can be the outcome for several kinds of process and in addition to outcomes outlined above, it can also be granted after straight-forward conviction for any offence other than murder, anything which is not ‘fixed by law’.
It has two parts —
- The ‘37’ part is the hospital order – this is very similar to a s3 detention for treatment and it still requires two doctor’s medical recommendations that someone needs to be ‘sectioned’.
- The ‘41’ part is the restriction – and it’s a restriction on the doctors treating the patient, not on the patient themselves. It can only be imposed ‘on top’ of the hospital order if the patient poses a serious risk of harm to the public.
The doctors in such a case are restricted from granting leave from hospital (under section 17 MHA), they are further restricted in moving the patient to a hospital with a lesser level of therapeutic security; and finally, they are restricted from discharging the patient from hospital. It means if they wish to do any of these things, they must seek authority from the Secretary of State for Justice, who in practice conducts these decisions via the Mental Health Unit of the Ministry of Justice.
Finally, where a patient is thought fit for discharge from hospital and where the MoJ agrees, the patient is not just discharged, but conditionally discharged – under s42 MHA. This means the person remains subject to conditions whilst in the community (usually involving residence, medication and other things like drug and alcohol testing, etc.) If any aspect of post-discharge care is thought to have gone awry, the MoJ can issue a warrant under s42(4) to return the patient to hospital where they resume their previous status as a restricted hospital order patient.
A very tragic case, where confused reporting prevents us properly understanding what’s gone on here and most importantly, what will happen next to ensure the patient has access to healthcare and the public are adequately protected from any ongoing risk.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2023
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 