The making of hospital orders and the use of hybrid orders

27 March 2018

The Court of Appeal has today handed down judgment in R v Edwards [2018] EWCA Crim 595, an important case on the making of hospital orders in criminal proceedings and in particular the use of “hybrid orders”.

“Hybrid” orders are those made under section 45A of the Mental Health Act (MHA) 1983. It provides that where the offender is suffering from a mental disorder the Court may make a direction that, instead of being removed to and detained in a prison, the offender be detained in hospital.

This means that, unlike in the case of a hospital order made under section 37 MHA, once the offender is deemed to no longer require treatment in hospital he will then be returned to prison.

In R v Vowles [2015] 2 Cr. App. Rep. (S) 6, the Court of Appeal issued guidance on the making of section 37 hospital orders with a section 41 restriction. The Court in Edwards noted that (at paragraph 12 of the judgment):

A level of misunderstanding of the guidance offered in Vowles appears to have arisen as to the order in which a sentencing judge should approach the making of a s.37 or a s.45A order and the precedence allegedly given in Vowles to a s.45A order. In our view, s.45A itself could have been better drafted but the position is clear. Section 45A and the judgment in Vowles do not provide a ‘default’ setting of imprisonment, as some have assumed. The sentencing judge should first consider if a hospital order may be appropriate under section 37 (2) (a). If so, before making such an order, the court must consider all the powers at its disposal including a s.45A order. Consideration of a s.45A order must come before the making a hospital order. This is because a disposal under section 45A includes a penal element and the court must have ‘sound reasons’ for departing from the usual course of imposing a sentence with a penal element. Sound reasons may include the nature of the offence and the limited nature of any penal element (if imposed) and the fact that the offending was very substantially (albeit not wholly) attributable to the offender’s illness. However, the graver the offence and the greater the risk to the public on release of the offender, the greater the emphasis the judge must place upon the protection of the public and the release regime.

The Court also addressed what it considered to be a misunderstanding arising from R v Ahmed [2016] EWCA Crim 2016. In that case the Court of Appeal had appeared to suggest that the supervision available in section 37/41 cases offered better protection to the public than release under section 45A. That was on the basis that release under section 37/41 involves supervision by medical professionals whereas supervision under section 45A is by the probation service.

In Edwards the Court took some evidence on the issue and concluded having done so that (at paragraph 30 of the judgment):

….the conclusion expressed in Ahmed that the regime under ss. 37 and 41 would necessarily provide a regime best suited to protect the public as opposed to a post s.45A licence regime was confined to the facts of that case. We respectfully agree with Gross LJ that the court’s observations are not of any general application. The court’s conclusion as to which regime will better protect the public will depend on a careful assessment of the facts of an individual case.

The Court also issued the following general guidance on how the Court should approach its task when considering a hospital order, which is essential reading for criminal law practitioners (at paragraph 34 of the judgment):

i. The first step is to consider whether a hospital order may be appropriate.

ii. If so, the judge should then consider all his sentencing options including a s.45A order.

iii. In deciding on the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence.

iv. To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) 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.

v. 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.

vi. 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.

vii. 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.  

viii. If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness or a s45A order he or she should lodge a s.23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it.

ix. Grounds of appeal should identify with care each of the grounds the offender wishes to advance. If an applicant or appellant wishes to add grounds not considered by the single judge an application to vary should be made.

Matthew Stanbury is a barrister at Garden Court North Chambers. He appeared for the appellant Mr Langley, for whom the Court substituted a term of imprisonment for public protection with a hospital order under section 37 with section 41 restrictions. He was instructed by Caroline Aaron of Howard and Byrne Solicitors, York.



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