Neutral Citation Number: [2016] EWCA Crim  739
Case No: 201403760 A7 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 4th February 2016

 
B e f o r e:

LADY JUSTICE SHARP DBE 

MR JUSTICE EDIS 
 
HER HONOUR JUDGE MUNRO QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A 

v 

LEE JAMES AITCHISON 
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr T Baldwin appeared on behalf of the Applicant
Mr A J Ailes appeared on behalf of the Crown
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J U D G M E N T (Approved)
1.	LADY JUSTICE SHARP:  This application for permission to appeal against sentence, for an extension of time and for leave to adduce fresh evidence, has been referred to the Full Court following the decision of this court in R (Vowles) v Secretary of State and others [2015] 1 WLR 5131.  We give leave.
2.	The appellant, Lee James Aitchison, appeals against a sentence of imprisonment for public protection (IPP) with a minimum term of 24 months that was imposed by HH Judge Boggis QC at the Crown Court at Southampton on 6 June 2008.  This followed his plea of guilty to a number of offences.  These were inflicting grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861; possession of an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953 and common assault contrary to section 39 of the Criminal Justice Act 1988.  The appellant is still in custody and is post tariff, as he remains there subject to the IPP.  
3.	The facts can be briefly stated.  The appellant and the victim of the section 18 offence were neighbours in flats in Southampton.  The relevant incident happened on 10 May 2007.  The appellant was on methadone, prescribed for him, and during that day he had smoked cannabis and drunk some alcohol (about four cans of lager).  The victim thought there was a noise coming from the appellant's flat at about 3 o'clock in the morning and he went on to the landing to complain.  The appellant then attacked him with the blunt end of an axe, which had been wedged under his door, and pursued the victim back to his own flat, hitting him twice and causing injuries that were significant but fortunately, not life‑threatening.  The appellant took the axe into the street and rang for an ambulance.  The police found him in the street and he was arrested.  At the police station he head butted the police surgeon in the chest (the assault offence).
4.	The pre‑sentence report before the judge said that a disposal under section 37/41 of the Mental Health Act 1983 was not appropriate, and medical reports, including one from Dr Roberts on behalf of the Crown on the appellant's mental state whilst on remand, concluded he did not suffer from schizophrenia.  It was not suggested to the judge in mitigation, that a hospital order might be appropriate; and both counsel who appear before us today, Mr Baldwin on behalf of the appellant and Mr Ailes on behalf of the Crown, emphasise that the judge could not be criticised for passing the sentence he did in the light of the information that was then available.
5.	At the time of his sentence, the appellant was 45 years old and had a lengthy history of offending, comprising 24 convictions, including four offences of violence.  
6.	On 2 November 2011 the appellant was transferred from prison to a psychiatric unit (Ravenswood House medium secure psychiatric unit) under sections 47 and 48 of the Mental Health Act 1983, as amended. His psychiatric condition had deteriorated whilst he was in custody and he required compulsory treatment in a medium secure hospital unit.  The appellant has remained in that unit since then.
7.	The grounds for this appeal are these: (i) at the time he committed these offences, the appellant was suffering from a psychotic illness, namely paranoid schizophrenia; (ii) due to the atypical development and presentation of this illness, it was not properly identified at the time of sentence; (iii) had the appellant's condition been recognised, the proper disposal would have been a hospital order under section 37(1) of the Mental Health Act 1983 and consideration would have been given to the imposition of a restriction order under section 41 of the same Act.
8.	Mr Baldwin submits before us that the circumstances of the offending strongly indicate that the appellant was indeed suffering from a severe mental illness at the time of the offences, albeit it was not then recognised.  There was concern about the appellant's mental state from the time of his detention in custody, until sentence; and the fact of his illness then and now, is demonstrable from the medical evidence before the court, to which we now turn.
9.	The fresh evidence consists of psychiatric reports from three consultant psychiatrists: Dr Roberts, Dr Stein and Dr Morton.  We are satisfied it is proper to receive this evidence pursuant to section 23(2) of the Criminal Appeal Act 1968.
10.	Dr Roberts was the appellant's consultant psychiatrist and his responsible physician until January 2015, when Dr Morton took over the appellant's care.  Dr Roberts is now retired but has spoken recently to Dr Morton, who continues to be the responsible physician for this appellant.  Dr Stein produced his report following an interview with the appellant and a review of the case papers.
11.	We have before us a number of reports. Two are from Dr Roberts dated 17 June 2013 and 14 October 2014 respectively; and we have heard evidence today from Dr Roberts, supplementing what he says in those reports.  We also have a report provided to the court yesterday by Dr Morton and a report from Dr Stein.
12.	Dr Roberts and Dr Stein are of the opinion that the appellant has suffered from schizophrenia from about 2002, and that he was suffering from that condition at the time of commission of the index offences.  
13.	Dr Roberts refers to two reports before the judge on the issue of fitness to plead from a Dr Schlich, both from November 2007, which dealt with the appellant's condition at the time of the offending.  There he is described as "living in a highly abnormal world of schizophrenia”, having auditory hallucinations, and as someone who would arm himself with weapons when ill.
14.	Dr Roberts has explained today why the views he expressed in his report for the purposes of sentence has changed. This results from his close observation of the appellant from the date of his transfer in 2011, when he was obviously mentally ill.  He says that the appellant is someone who can present fairly well superficially, and that is how he presented when Dr Roberts had the opportunity to observe him and interview him, only briefly, before sentence was passed.  He says that it is now his opinion that the appellant's illness is atypical and so he presented well in that short interview, as he does from time to time, even now.
15.	In Dr Stein's opinion, the appellant suffered from a severe personality disorder before 2002 which developed into schizophrenia at some point between 2002 and 2007, so that by 2008 he was obviously suffering from schizophrenia.
16.	We should express our gratitude to Dr Morton, who produced his very helpful report yesterday at extremely short notice.  We cite from it the following passages:

i.	"Mr Aitchison has a mental disorder, namely Paranoid Schizophrenia.  

ii.	This is currently of a nature which makes it appropriate for him to be liable to be detained in a hospital for medical treatment.  

iii.	When acutely unwell, Mr Aitchison poses a risk of serious violence to other persons.  He experiences a range of psychotic symptoms such as hearing voices and feeling paranoid.  

iv.	His illness is treatment resistant.  This means that it does not respond to the maximum doses of standardised antipsychotics.  He requires a drug called Clozapine to manage his illness.  Although this is the 'gold standard' antipsychotic available, treatment with Clozapine comes with significant risks.  It requires the patient to have regular blood testing for example and has a number of serious side effects ...  

v.	In my opinion, the most appropriate disposal would be by way of a Hospital Order, as provided under Section 37 of the Mental Health Act 1983 ..."

17.	In relation to the question whether or not the appellant could be made the subject of a section 41 restricted hospital order, Dr Morton goes on to say this:

i.	"Restricted patients can only be discharged by the Secretary of State or the Mental Health Tribunal.  When they are discharged, they are almost always discharged with restrictions or conditions placed on them.  Typically they require the patient to attend appointments with their psychiatrist and social worker and to live at a specified address.  They may also include a requirement not to return to the area where the offence happened and potential victims reside, and to co‑operate with urine drug screens.  The purpose of these conditions is to make sure that the individual is closely supervised in the community and that at the first sign of their mental state deteriorating, and/or their risk of harm increasing, they can be recalled to hospital."

18.	Dr Morton confirms that there is a bed available for the appellant at Ravenswood House hospital, where he is currently in the medium secure unit and receiving treatment.  He closes his report by saying this:

i.	"I would argue however that [prison] is not the most appropriate disposal for somebody who is severely mentally ill.  It is hard to imagine the circumstance when I would return Mr Aitchison to prison given his complex medication regime and the need for him to undertake specialist psychiatric and psychological treatment in a secure hospital setting.  The sorts of specialist intervention that he requires, both to maintain stability in his mental state and reduce his risk to the public, is not available within the prison estate."

19.	With those observations as is clear, both from his reports and from his oral evidence, Dr Roberts is in entire agreement.
20.	There can be no question from the material before us but that the appellant is severely ill with a mental disorder, that he suffered from this disorder at the time he committed the index offences and that he was, and still is, dangerous.  All three psychiatrists conclude that the most appropriate disposal would be a hospital order under section 37, and we agree.  In reaching that conclusion we have considered and applied the guidance given in the case of Vowles.  
21.	We are also in no doubt that it is necessary and proportionate to accompany that order by a section 41 restriction, without limit of time, in order to protect the public.  Dr Roberts expressly confirmed in oral evidence that in his opinion this was the most appropriate course for this appellant.  
22.	In those circumstances, we quash the sentence of imprisonment for public protection that was imposed and there will be an order made under section 37 of the Mental Health Act 1983. This appellant will be subject to a section 41 restriction without limit of time, as we have indicated.  To that extent, this appeal is allowed.