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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Fuller v R  EWCA Crim 1867 (14 December 2016)
Cite as:  EWCA Crim 1867
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ON APPEAL FROM THE LEWES CROWN COURT
HH JUDGE NIBLETT
Strand, London, WC2A 2LL
B e f o r e :
MR. JUSTICE STEPHEN MORRIS
THE RECORDER OF MAIDSTONE
|- and -
Mr. Ahmed Hossain (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 16 November 2016
Crown Copyright ©
Lady Justice Sharp
The appellant's history
The events after sentence
The current views of Dr. Noon and Dr. Ross
The current position
"(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law,. . . and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order…
(2) The conditions referred to in subsection (1) above are that—
(a)the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that…—
(i)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 appropriate medical treatment is available for him;…
(b)the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.
"It is true that the detention for public protection regime and the section 37/41 hospital order regime have features in common. Under both regimes discharge on release is discretionary and in the hands of the Secretary of State, that is to say the Ministry of Justice. In both cases regard is had in making the discretionary decision whether or not to release to danger. In neither case is there any absolute right to release. Secondly, release under both regimes is conditional and the defendant is subject to recall. That said, there is an absolutely crucial difference between the two forms of regime. Under an order for detention for public protection release is dependent upon the responsible authority being satisfied that the defendant is no longer a danger to the public for any reason and principally not at risk of relapsing into dangerous crime. Under the hospital order regime release is dependent upon the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition. Similarly, and critically, release under the detention for public protection regime is on licence and the licence can be revoked if the defendant shows that he remains a danger to the public from crime. It is possible and indeed inevitable that the licence conditions will be designed, among other things, to prevent association with dangerous criminals. Under the hospital order regime, recall is available but only if the defendant's medical condition relapses. Simple crime does not trigger a recall under the hospital order regime."
"Under a section 37/41 order an offender can continue to receive treatment in a secure setting in a supported and secure environment, permitting his being tested and over time stepped down as regards level of security as he progresses, until a conditional discharge in the community (subject to conditions and to recall so as to reduce risks to the public) is in place. He would also be far more likely to receive the forensic psychiatric help he requires when eventually discharged into the community. Under section 47/49 he will at some stage be transferred back to a prison environment and discharged back into the community following a parole hearing. He might then be put in contact with local mental health services, but will not have the same level of scrutiny, supervision and support, nor be subject to conditions or recall, thus increasing risks to his well-being and public safety."
"The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge."
"The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them. On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he is no longer a risk either to himself or to others. That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way which enables the public to identify the patient. It may also be put in jeopardy unless patients have a reasonable expectation in advance that their identities will not be disclosed without their consent. In some cases, that disclosure may put the patient himself, and perhaps also the hospital, those treating him and the other patients there, at risk. The public's right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure."