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R v Cleland: The consideration of a hospital order by the Court of Appeal with fresh evidence of a child’s autism

R v Cameron Cleland [2020] EWCA Crim 906

The Court of Appeal replaced the sentence of detention for life for attempted murder, imposed on a 16 year old, with a hospital and restriction order under sections 37 and 41 of the Mental Health Act 1983 after hearing fresh evidence that, at the time of the offence the offender had been suffering from Autistic Spectrum Disorder.

Details

The appellant was convicted of the attempted murder of a 12-year-old girl. The pre-sentence report indicated that the appellant might have an emerging psychopathic disorder, but no evidence was found of mental illness or traits sufficient to meet the diagnostic criteria for autistic spectrum disorder (ASD). No submissions were made in relation to a hospital order before the sentencing judge and he was sentenced to detention for life with a minimum term of seven years and an indefinite restraining order. He initially, and unsuccessfully, appealed this sentence.

Post-sentence the appellant’s mental health deteriorated and he was transferred to a secure hospital and diagnosed with ASD. It was said that the failure to reach that diagnosis earlier was due to the unavailability of the full history. The joint experts concluded that there was a direct causal link between the ASD and the offence, although ASD was not the sole cause, and that the appellant required hospital treatment.

The Court of Appeal found that it was in the interests of justice to admit this fresh evidence in the appeal and there was a reasonable explanation for the failure to adduce before the sentencing judge.

In considering whether to replace the sentence the court considered that the appellant’s offending was significantly, although not wholly, attributable to the ASD. The level of his culpability was not as high as the sentencing judge had found, but he did retain a significant level of responsibility for his actions. The court found that the crime was premeditated and called for punishment even with his young age suffering from a mental disorder, however consideration was also given to the fact that he had served almost the whole of the minimum term and therefore effectively fulfilled the punishment element of his sentence.

Expert evidence confirmed that treatment was available but that there was no cure for his ASD. It was acknowledged that the appellant will likely always present a risk to the public and could receive medical treatment in prison. However, once released from hospital the s.37 and s.41 regime would result in better monitoring and increase the prospect of an early identification of a potential increase in risk.

The principal risk against which it was necessary to guard was the risk of further violent behaviour linked to the ASD. The court found that the public interest was best served by his continuing to receive expert treatment to reduce that risk and that Orders under s.37 and s.41 offered the greater prospect of managing C’s return to the community, and such orders were substituted for the sentence of detention for life.

Commentary

This case is an important reminder of how vigilant practitioners and medical experts should be in identifying and assessing potential mental health disorders in young people and doing so at the earliest opportunity.

Nevertheless, often mental health indications are not apparent, and this is also a realistic reminder that when young people are still developing and changing such issues can be even harder to recognise. It is therefore important to act expeditiously once such indicators are visible and all possible avenues in and away from the criminal justice should be explored, even if like here, avenues of appeal had already been tried.

If a young person does suffer with a mental health disorder then it is important to obtain evidence of:

  • The extent the offending was linked to the disorder
  • The extent it reduces the young person’s culpability
  • The extent the disorder can be treated, ‘cured’ or managed and the extent this is possible in detention and/or the community

The court’s emphasis on public protection also illustrates the importance of presenting detailed evidence from clinicians as to the practical realities of the way an appellant will be managed under the different pathways, and how that relates to the nature of a particular appellant’s risk.

This judgment was the first successful appeal for an appellant with ASD absent of any other mental health disorders. This is encouraging as courts have previously been slow to extend mental health pathways to those was developmental disabilities (including learning disabilities).

For a more detailed analysis of the case see Doughty Street Chambers’ Criminal Appeals Bulletin, Issue 45. 

Written by Hannah Williams (Barrister) in collaboration with the Youth Justice Legal Centre.