The appellant (B), had been sentenced to life imprisonment with a tariff of 8 years. He had pleaded guilty to rape, kidnapping, and making threats to kill. This case was a referral to the Court of Appeal by the Criminal Cases Review Commission (CCRC) under s9 of the Criminal Appeal Act 1995. As such it was treated as an appeal by Beatty against sentence.
Following B’s guilty plea, he was assessed under s38 of the Mental Health Act 1983 (The 1983 Act). It was anticipated that B would be sentenced to remain in hospital. The judge however, having sought expert opinion from a Dr S, was unable to make a hospital order because the statutory conditions were not met. The opinion of those treating him was that he suffered from a long-standing personality disorder. This constitutes a psychopathic disorder within the meaning of the 1983 Act. The issue was whether B’s psychopathic disorder was treatable. Unless it was, the conditions for making a hospital order were not met and the judge could not make one. It was said by Dr S that B’s condition was not treatable and the judge therefore had no option but to pass an indeterminate sentence.
B made an application for leave to appeal against sentence. Dr S maintained his earlier opinion that he “could not with certainty come to the opinion that B was treatable as defined by the Mental Health Act 1983.”The Court of Appeal was unable to substitute a hospital order for the sentence given.
This case was referred by the CCRC to the court to consider afresh the sentence because it was submitted that there was evidence that B’s condition was in fact treatable.
Following the appeal judgement, there was still some concern that B should be in a hospital. He was admitted for treatment as a transferred patient under sections 47/49 of the 1983 Act. His mental condition was categorised as a psychopathic disorder. Two years later there were encouraging signs that B was in fact amenable to treatment.
A significant development followed. B was granted ‘technical lifer’ status. The term describes a person who, although sentenced to life imprisonment, is to be treated as though he had originally been made the subject of a hospital order with a restriction under sections 37 /41 of the 1983 Act. This is entirely at the discretion of the Secretary of State who may refer the matter for judicial consideration. In assessing an application for ‘technical lifer’ status, consideration is given to whether the decision to impose a life sentence rather than a hospital order was for reasons that were beyond the control of the sentencing court, including medical reports that in hindsight do not appear to have recorded accurately the patient’s mental state at the time of the offence.
The effect of being classified as a ‘technical lifer’ is that the patient is treated for the purposes of discharge as though orders under sections 37/41 of the 1983 Act had been made instead of the imposition of a sentence of imprisonment. Treatment is provided with a view to rehabilitation and eventual release direct from hospital into the community. The case is not referred to the Parole Board and the offender is not released on licence.
The Court of Appeal was presented with fresh evidence from four Psychiatrists, each of whom had the opinion that B’s condition was treatable at the time that the original sentence was imposed. Dr S’s opinion stood in isolation in relation to his peers in finding that B was not so treatable at the time of sentencing. Dr S had expressed a lack of certainty about B’s lack of treatability, whereas the statutory test was whether treatment was likely to alleviate or prevent a deterioration of his condition. The court decided that Dr S had set the test too high. It held that B had been treatable at the time he was sentenced for his index offence and that the fresh evidence could and should be admitted under s23 (1) Criminal Appeal Act 1968 as being necessary or expedient in the interests of justice.
The court considered why it should vary B’s sentence when s47 and 49 put him in a similar position to that in which he would have been if the judge had imposed a hospital order with a restriction rather than a life sentence in the first place. The answer was that if the conditions for a hospital order were met at the time of sentence, a hospital order rather than a discretionary life sentence should be imposed even where the information comes to light after the imposition of the sentence. Mitchell  applied. A significant distinction between sections 37 and 47 is that the offender is released to freedom under s37 when the doctors think he has been cured but under s47 if the offender is cured he is returned to prison to serve the remainder of his sentence.
There is an important distinction to be drawn between a life sentence prisoner who developed a mental illness post sentence and is transferred to hospital under ss 47/49 and one whose condition was such at the time of sentence that the judge should have made a hospital order with a restriction under section 37/41. This distinction was recognised by the grant of technical lifer status. The present case fell squarely within the latter category. If the sentencing judge had had the evidence before him of the Court of Appeal it was inevitable that he would have made a hospital order with a restriction. It was significant that technical lifer status was only granted if a prisoner was deemed to be treatable. The court felt it was important that any incorrect sentence was rectified despite the defendant’s argument that it would have consequences for other cases and open the flood gates.
Appeal against sentence upheld. Life sentence quashed and replaced with a restriction order under s37/41 of the 1983 Act.