You will recall last month’s sentencing in Nottingham following the killings Barnaby Webber, Grace O’Malley-Kumar and Ian Coates in June 2023. A number of reviews are ongoing in to various aspects of mental health care, policing and decision making during the criminal proceedings.
One aspect of this has been subject to an announcement this morning – Victoria Prentice KC MP, the Attorney General, has concluded there are grounds to think the sentence was ‘unduly lenient’ and she has referred the matter the Court of Appeal for review. Robert Courts KC MP, the Solicitor General, has been a part of this process as well and is reported in HM Government’s press release to concur.
Barnaby Webber’s family were subsequently interviewed on BBC Breakfast and there are various reported reasons for the referral according to the families of the victims: there was insufficient investigation into the culpability of Valdo Calocane during the attacks, the minimum term given did not take into account the aggravating factors of the planning of the attacks, the premeditation of the murders, the collection in advance of weapons and the further risk of harm to others, and the sentence of a hospital order was insufficient and should have additionally carried a penal element under section 45A of the Mental Health Act.
SO WHAT DOES THIS NOW MEAN?
This will be an appeal review about sentencing only.
The victims’ families are understandably asking questions about whether the Crown Prosecution Service (CPS) should have accepted pleas to the offence of manslaughter on the grounds of diminished responsibility (DR), or to push on with a trial for murder and that is one of the reviews which continue – by the Inspectorate for the CPS. The Court of Appeal’s remit under the ‘unduly lenient sentencing’ guidelines is to examine the sentence only, not the question of whether the pleas being accepted was appropriate. It is an examination of whether a s37/41 restricted hospital order is the appropriate sentence for the defendant, given his pleading guilty to three offences of manslaughter (DR) and three attempted murders and we see above, the victims’ families quoted as emphasising the need for a ‘penal element’ and a s45A hybrid order – this is language from the law and the sentencing guidelines which apply to mentally disordered defendants.
You can read (much) more about the “Unduly Lenient” process on the CPS website – it’s fairly comprehensive about how that scheme operates and explains a lot about what the AG should consider before referral and what the Court of Appeal can, must or could do, subsequently.
What I wanted to focus on here is the issue of how sentences should be reached where it involves mentally disordered defendants. Those guidelines issued by the Sentencing Council are relevant to what happened in Nottingham and what will happen in the Court of Appeal. There were (broadly) only three things the trial judge in the Crown Court could have done and they are –
- A sentence of imprisonment – not withstanding that a defendant has a mental illness, nothing prevents the court just sentencing someone to prison.
- The judge made reference in his sentencing remarks to the fact that if he had chosen this option, the sentence would have been a life sentencing with a minimum tariff and if a convicted prisoner’s mental health problems make it appropriate to do so, they can be transferred from prison to hospital under s47/49 MHA.
- A restricted hospital order, s37/41 – which is what he did.
- A hybrid order, s45A MHA – this is something he mentioned in passing during sentencing remarks, but which wasn’t massively well explained or explained away in the sentencing remarks, in my own view. I had wondered whether he might go for that option and one of the expert witness psychiatrists had a view on this which may have been persuasive.
SENTENCING REMARKS
So what precisely did the judge say about these things?
On imprisonment (see p13 of the sentencing remarks) –
“If all other things were equal, the relevant sentence under the guideline of one offence of diminished responsibility manslaughter would attract a starting point of seven years and a range of between three to twelve years imprisonment. This would be subject to a very significant upward revision to take into particular account the number of victims involved here and the three counts of attempted murder.
A life sentence would be appropriate with a long minimum term. Taking into account the principle of totality, the starting point for the minimum term would have been thirty years but this would have fallen to be reduced by one third to reflect your guilty pleas and by a further third to reflect what would otherwise have been the date of your eligibility for parole in respect of a determinate sentence.
The minimum term would therefore have been 13 years and four months.”
On s45A the judge said this (p15) –
“The sentencing options which remain are limited to a hospital order combined with a restriction order or a section 45A hospital and limitation direction (sometimes referred to as a hybrid order) which would provide for the possibility that some part of your sentence may later be served in prison. I remind myself of the importance, where appropriate, of reflecting a penal element in the sentence but note, in passing, that the psychiatric evidence including that of Dr Mirvis your responsible clinician is that you are unlikely ever to be released in any event. The choice is ultimately a matter for this court but will inevitably be substantially informed by the psychiatric evidence. In this regard, the approach of Dr Blackwood, instructed on behalf of the prosecution is worth setting out in some detail.”
You can read about the detail of hybrid orders on another post but in summary: it means someone is sentenced to imprisonment for an offence, but before being removed there, they are taken to a mental health unit for treatment of their mental health condition. So using Mr Calocane as an example, the judge might say something like, “I am sentencing you to life on each indictment with a recommendation you serve a minimum of thirteen years and four months. Prior to imprisonment, you will be detained in a secure mental health unit for treatment of your condition, under a hyrbid order made under s45A MHA.” This would mean, if he were still in hospital in receipt of mental health treatment thirteen years and four months after sentencing – which is something the psychiatric evidence predicts will be the case – he would remain detained under the MHA as what they call a notional s37 patient, in receipt of treatment and any discharge from would be governed by normal legal rules about discharge from the Mental Health Act, through a mental health tribunal.
Upper-most in the minds of those making these decisions will be what regime affords better protection of the public in the particular case – all cases turn on their merits. What was to be decided, in effect, was whether the MHA restricted procedures provide better safeguards and protections than MHA non-restricted procedures.
HOW TO DECIDE?
So how does a judge going about making the decisions here? I hope to a certain extent your head is hurting whilst reading this as much as mine was whilst re-checking and summarising this, because this is complicated, not least because of how sensitive and important it is. As ever, let’s start with the law –
Section 45A(1) is really important to the question which will face the Court of Appeal and which did face the trial judge. This provision comes in to play if the judge is thinking of making a hospital order but then decides to impose a sentence of imprisonment.
45A(1) – “This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law—
(a) the conditions mentioned in subsection (2) below are fulfilled; and
(b) the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence.
(2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners—
(a) that the offender is suffering from mental disorder;
(b) that 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
(c) that appropriate medical treatment is available for him.]
The Court of Appeal outlined considerations about how to go about making these decisions in R v Vowles and others a 2015 appeal involving six defendants in separate cases brought together during appeal. They said –
“In a case where … in the light of all the circumstances referred to, a hospital order might be an appropriate way of dealing with the case, a judge should consider whether the mental disorder could appropriately be dealt with by a hospital and limitation direction under section 45A; if it could, then the judge should make such a direction.”
So, where a hospital order might be the sentencing outcome, the court should consider whether s45A is the appropriate route and the judge should then choose the s45A hybrid order rather than the s37/41 MHA, the restricted hospital order where appropriate. So what does ‘appropriate’ mean?!
Well, the Appellate justices covered this as well, in Vowles –
“A hospital and restriction order under s.37/41 is more likely to be appropriate in a case where the mental disorder is a severe mental illness (particularly a psychotic illness or an organic brain disorder) rather than a personality disorder. That is because it is more likely that such an illness may have a direct bearing on the offender’s culpability and because the illness is likely to be more responsive to treatment in a hospital. In contradistinction it is more difficult to attribute a reduction in culpability to a personality disorder and at present individuals with severe personality disorders are less likely to benefit from hospitalisation.”
This was all then further refined again in a 2018 appeal, R v Edwards (2018) –
- The first step is to consider whether a hospital order may be appropriate.
- If so, the judge should then consider all his or her sentencing options including a s45A order.
- In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence.
- To decide whether a penal element to the sentence is necessary the judge should assess 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.
- 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.
- If the judge decides to impose a hospital order under s.37/41, he or she must explain why a penal element is not appropriate.
- The regimes on release of an offender on licence from a s.45A order and for an offender subject to s.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.
ON BALANCE
Weighing up all of that, the trial judge in Nottingham opted for a restricted hospital order and that’s what will now be reviewed. He seemed to have been persuaded by the evidence of Dr Blackwood, who is quoted at length in pages 16-18 of the sentencing remarks. The judge then said –
“In the unlikely event you were ever to be released, I must consider which regime would provide the greatest level of protection for the public. The main concern is that, upon release from prison, you would not be supervised by a team of mental health experts reporting to the hospital and the Secretary of State for Justice but instead by a probation officer. Such a probation officer will not be trained to spot the subtle signs of mental health deterioration and, if they are identified, will not have the powers to intervene to arrest any such deterioration.
Furthermore, there are significant concerns that a prison environment would give rise to a risk that, in the event of a relapse, you would present a real danger to prison officer and fellow prisoners alike. As the relevant Sentencing Guideline states: “There will be cases where the protection of the public via a restriction order will outweigh the importance of a penal element and other cases where a greater public protection is provided by a hybrid order.” I am entirely satisfied on the evidence, in the particular circumstances of this case and for the reasons I have given, the proper sentence is a hospital order subject to a section 41 restriction order.”
[Bold is my emphasis.]
The judge did explain in sentencing remarks that one problem with the hybrid order is that if a defendant is then transferred to prison, there is no ability to treat him under the MHA whilst there so no ability to ensure compliance with medication and less ability to respond quickly to deterioration in his mental health – and as it was predicted the defendant in this case would remain in hospital for the rest of his life, it a s45A order would mean that eventually, he was not subject to the MHA “restrictions” which are the s41 MHA part of a s37/41 order (and which also apply to s45A for the duration of the criminal sentence given, ie, the thirteen years and four months mentioned).
I have to imagine this is what the judge had in mind when making the decision, but no doubt now the Court of Appeal will be all over it and the appropriateness in these circumstances will be judged. No doubt, we’ll hear a lot about R v Vowles and others and R v Edwards in their decision after looking at the sentencing remarks very closely, in addition to the guidelines and the Attorney General’s referral.
I am of course, quite fascinated to see how this unfolds but all too conscious amidst my intrigue that it does relate to unimaginable and ongoing tragedy for six families and the three surviving victims. I hope the Court of Appeal will hear this soon because the legal framework is already a ridiculously complicated way to expect people to understand what these different orders mean and how likely any of it is to ensure people have confidence about what’s going on. I suggest from all the reactions to this whole case that it’s highly questionable people do. And the Attorney General appears to think so, too.
NB: this is the latest in post about the terrible events in Nottingham, June 2023. You can find all the others collated on a specific Nottingham resources page along with other materials, inc reports and legal documents.
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, 2024
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 