Nov 3
The defendant suffered from mental illness and had been diagnosed with schizophrenia. Following the break down of a relationship, he pleaded guilty to an offence of harassment contrary to section 2 of the Protection from Harassment Act 1997 committed against his former partner over a number of months. By the time he came to be sentenced for that offence, he was being detained as an inpatient at a mental hospital pursuant to section 3 of the Mental Health Act 1983 under a responsible clinician and it was uncertain whether or when he might cease to be detained there. The sentencing judge accepted the parties’ contention that the offence should be categorised as falling within category 1A of the Sentencing Council Harassment/ Stalking/ Racially or religiously aggravated harassment/stalking Sentencing Guideline with a starting point of 12 weeks’ custody and a category range from a high-level community order to 26 weeks’ custody, and imposed a sentence of eight weeks’ imprisonment, suspended for 12 months. Restraining and surcharge orders were also imposed. The defendant appealed against sentence on the ground that the recorder had failed to give appropriate consideration to the effects of a custodial sentence on him as had been required by section 232(3)(b) of the Sentencing Act 2020, and that he should either have imposed a conditional discharge or given consideration to a mental health disposal pursuant to section 37 of the 1983 Act and ordered a medical report to address such a disposal.
On the appeal—
Held, appeal allowed. The judge had fallen into error in failing to give any consideration to the effects of a custodial sentence on the defendant, who it was amply evidenced by the materials before him was suffering from a mental disorder, as he had been obliged to do under section 232 of the Sentencing Act 2020, which imposed a mandatory obligation to consider the likely effect of a custodial sentence on the defendant’s condition and on any treatment which may have been available for it when all the evidence was that the defendant needed to be detained in a hospital setting whether on the basis of being sectioned under section 3 or section 37 of the Mental Health Act 1983. The imposition of a suspended sentence had created a real risk of conflicting regimes, since if the defendant were to reoffend he would be arrested and his suspended sentence activated which would be an unacceptable outcome in circumstances where he was currently subject to detention under a different regime having been sectioned. In circumstances where the prospect of being discharged was uncertain, any possible benefit of having the suspended sentence in place was outweighed by the prospect of conflicting regimes being invoked if he were to reoffend while still sectioned. Similarly, a conditional discharge also carried a risk of conflicting regimes if the defendant were to reoffend, although the risk of conflict was perhaps less acute because of the procedure which would likely be followed. Despite the fact the defendant was already sectioned the judge should still have considered the possibility of a medical disposal and set in train the steps to make a hospital order on a subsequent occasion. The court, having obtained medical reports from two registered medical practitioners including two psychiatric reports by the defendant’s responsible clinician, was able to make a hospital order under section 37 of the 1983 Act which was the correct disposal of the case on the facts. On the making of the hospital order, the civil section 3 detention order would cease to have effect (paras 40–46).
Jessica Peck (assigned by the Registrar of Criminal Appeals) for the defendant.
Antony Bartholomeusz (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.