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R. v Jefferson (Andrew Paul) [2016] EWCA Crim 2023

A Criminal appeal upholds a decision to use section 45A of MHA rather than section 37/41 MHA.

Case summary

The Appellant (J) was sentenced to imprisonment for life, with a specified minimum term of 10 years. A hospital direction and limitation was also made under section 45A of the Mental Health Act (MHA) 1983 and the Appellant was appealing this sentence.

The Appellant had been convicted of attempted murder. He had entered a wine shop and stabbed the store assistant, stating: 'Paki, bastard, I will kill you,' and: 'You immigrants are killing me.' Incidentally, the store assistant was Turkish. He was tackled to the ground while he screamed racially abusive threats and, holding the knife under his body, trying to continue to attack until the police arrived, when he was disarmed. The stab wound required stitches and was millimetres from being fatal. It also left considerable psychological damage.

After the event it became apparent that the Appellant had delusional beliefs and he had a mental health problem for some time. There were three court medical reports before the court, all of which stated that the Appellant had some form of psychotic illness of a nature and degree requiring hospital treatment, which had gone untreated for at least 12 years. Two of three of the psychiatrists were of the opinion that the commission of the offence was directly linked to the Appellant's mental health problem.

The Appellant had a history of assault offences. During sentencing, the judge characterised the offence as a horrendous unprovoked attack, aggravated by racial hostility. In particular he noted that, while the Appellant clearly had delusional beliefs, he was still able to tell right from wrong and that the attack had been in part attributable to the delusional belief. Serious aggravating elements were the pre-planned nature of the attack and the racial element.

The appeal was based on three grounds: the sentence should not have been a combined prison sentence and hospital order as it was under section 45A, but instead should have been a hospital order with restrictions under sections 37 and 41; the judge made a mistake imposing a life imprisonment; and the tariff was set too high.

The appeal was allowed in part and the tariff was reduced from 10 to eight years. The judge had correctly considered the extent to which the offending was attributable to the Appellant's mental condition and the extent to which punishment was required, the protection of the public after release and the alternatives set out in R v Vowles and Others [2015] EWCA Crim 45 and there was no merit in the appeal against life imprisonment, with the hospital and restriction directions under section 45A of the Mental Health Act.


The increased use of section 45A sentences means that we are seeing an increase in those with mental disorders in need of mental health treatment taking more responsibility for their crimes, to some extent in line with UNCRPD requirements of autonomy together with responsibility.

The key distinctions between a prison sentence and detention under the MHA are the extent to which the offence is attributable to someone's mental disorder and the risk to the public after release. Where an offence is not entirely attributable to mental disorder, it is easy to see why judges might take advantage of section 45A. Importantly under a hospital order with restrictions under sections 37/41, it is the Mental Health Tribunal looking at whether the prisoner meets the criteria for detention, which focuses on the management of their mental health problem. In contrast, with a prison sentence it is the Parole Board which is able to pay considerably more attention to the risk he or she poses to the public. A hybrid order under section 45A is able to consider both.

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