In March of this year, Phillip SIMELANE was charged with the murder of Christina EDKINS after a fatal stabbing occured on a bus on the Hagley Road in Birmingham. Today, he has appeared before Birmingham Crown Court and pleaded guilty to manslaughter on the grounds of diminished responsibility. I’m sure we all remember the shock and horror that accompanied the early morning attack on a schoolgirl on a Birmingham bus that stunned the country and that our thoughts are again with Christina’s family on what must be the latest in a serious of horrendous days for them.
This blog seeks to explain what this outcome means and to explain both why it sometimes happens where defendants have originally been charged with murder and why it represents as significant a “sentence” as any life sentence that would have been given had he been convicted of murder.
I want cover four things that are being asked of me already. I’ll summarise and paraphrase them as –
- What is diminished responsibility and why wasn’t he convicted of murder?
- Is diminished responsibility the same thing as ‘insanity’?
- Why has he been “sentenced” to hospital and not prison?
- Won’t this all mean he’s released early and free to do this again?
There are two routes to a defendant being guilty of manslaughter on the grounds of diminished responsibility. Where a defendant stands trial for murder and they have a background of mental ill-health, it remains available to a jury to convict them of manslaughter as an alternative, if they are satisfied that the criteria for this are met. Sometimes, the CPS insist upon a full trial of all the evidence including medical evidence before allowing the jury to decide and it is for a defendant’s barrister to put forward the diminished responsiblity argument – you will recall this is what happened earlier in the year in the trial of Nicola EDGINGTON whose defence argued diminished responsibility and the jury rejected this, convicting her of murder. (That outcome is subject of a pending appeal.)
Alternatively, if the Crown Prosecution Service are satisfied that the criteria are met, it may be that they agree with a proposal by the defence to accept a plea of guilty to manslaughter. This second route is what has occured today and we should be very clear about this: this is a criminal conviction for homicide – it is not a diversion from justice.
The criteria for diminished responsibility are met if the court is satisfied the defendant “was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts.”
I have written in more detail on diminished responsibility for those who are interested in knowing more.
THE INSANITY DEFENCE AND UNFITNESS TO PLEAD
Diminished responsibility and insanity are not the same thing, although both clearly relate to a defendant’s mental state. Firstly, diminished responsibility relates only to the defendant’s state of mind at the time of the offence. Insanity is a potential defence either because of mental state at the time of the offence OR at the time of trial. Insanity being a legal defence, it is for the defendant’s legal team to raise this issue and to satisfy the court, based upon the nineteenth century M’Naghten Rules.
To establish a defence on the ground of insanity, “it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
If you like, insanity is a complete defence to a criminal charge: someone who successfully puts forward an insanity defence is not guilty of that crime. Someone who argues diminished responsiblity is still guilty of a homicide and obviously has to have been fit to plead. Both can still lead to a restricted hospital order and they usually do.
RESTRICTED HOSPITAL ORDERS
Where a defendant pleads to, or is found guilty of manslaughter, they will usually be made subject by the judge to a Restricted Hospital Order, under sections 37 and 41 of the Mental Health Act 1983. This means that two forensic psychiatrists have indicated that detention in hospital for treatment is appropriate (s37) and that the judge thinks this is more appropriate than a prison sentence in the circumstances. It also means that the judge has ruled SIMELANE to pose “a significant risk of harm to the public” which is why he has ‘restricted’ the hospital order under s41 MHA.
Defendants who are sentenced to restricted hospital orders and admitted as patients to hospital will spend more time there, on average, compared to someone sentenced to prison for a similar offence. So if anything, this sentence will probably lead to more time spent ‘detained’ than for someone sentenced to imprisonment.
This is important to note: it is very far from being an ‘easy’ or ‘soft’ option; two phrases I hear used about sentences to hospital orders.
This restrictions referred to are not upon SIMELANE: they are upon the doctors treating him. They prevent the medical team from discharging him from hospital, from transferring him between different kinds of hospitals or from granting him leave from hospital, unless they have prior authority from the Ministry of Justice Mental Health Unit. The MoJ is responsible, on behalf of the Secretary of State, for overseeing all ‘restricted’ patients, to ensure that public protection is considered during any decisions that are taken. They do this via the Mental Health Unit. They require documented risk assessments, second opinions and other counter-balances to any proposed leave, discharge or transfer, before it can occur and forensic psychiatrists I know have consistently remarked how cautious and thorough the MHU is.
I have written in more detail on restricted hospital orders for those who are interested in knowing more.
The question is already being asked about how soon SIMELANE may be released. The truth is, that no-one knows at this stage. Yes, it is possible to find examples where defendants have been released after three years – Nicola EDGINGTON being one such example. It is also true that some defendants are never released. However, I want to explain how decisions to discharge patients are taken and to explain the safeguards which will apply –
Restricted patients are never just fully discharged into the community. They are always subject to s42 of the Mental Health Act which is called “conditional discharge”. It means that a community forensic mental health team – a multi-disciplinary team of psychiatrists and nurses, social workers and occupational therapists will work with that patient in their new home. Conditional discharge can impose conditions: geographical exclusion from certain areas, it may involve a regime of drug and / or alcohol testing, it will almost certainly contain conditions are the supervision of medication being taken either during home visits or during outpatient clinics in hospital and all of this will be subject to oversight of the local Multi-Agency Public Protection Arrangements, known as MAPPA.
Conditional discharge means that if the team working with the patient after discharge is not satisfied with compliance with conditions or have concerns about any behaviour exhibited since discharge from hospital, they can ask the Ministry of Justice to issue a warrant for recall. This MoJ warrant allows the police to re-detain the person and return them to hospital, where they revert to being a s37/41 restricted patient.
WILL THIS HAPPEN AND WILL IT WORK?
I’ve used the example of Nicola EDGINGTON very deliberately in this blog, to compare the process – because this is an example of where you may argue things went awry: convicted in 2006 of manslaughter on the grounds of diminished responsibility, conditionally discharged after just three years amidst errors on the part of some which meant she was not referred to the Greenwich MAPPA panel. Within eighteen months of discharge she is arrested for a further homicide incident and then convicted of murder and attempted murder, the jury having rejected a second argument of manslaughter. You can find examples of where a restricted patient’s stay in hospital is significantly less than any prison sentence they may have served for manslaughter and where the “aftercare” arrangements have not worked.
Such examples are very rare. The Ministry of Justice publish figures each year on re-offending, both for those sentenced by the criminal courts to a community sentence, to those who were sentenced to and then released from prison and for patients who are discharged from hospital. There are regional variations but –
- Re-offending after community or prison sentences is usually around the 50% mark.
- Re-offending by restricted patients after discharge from hospital is just 6%.
So as with all sentences and / or release decisions for someone found responsible for a homicide – there are no guarantees of anything. Firstly, there is no guarantee that he will be released at all and the Senior Investigating Officer, D/Supt Richard BAKER has expressed a view that he will be surprised if he ever is. Some people do spend the remainder of their lives detained after these kinds of outcomes because the never reach a point where they are judged fit for discharge. What can be guaranteed is a series of checks and balances within the system that lead to a significantly reduced likelihood of further offending after any future discharge and far greater ease of recall should there be any concerns at all.
I hope this explains just a little of what this outcome means and we should remember that whilst Christina’s family have indicated that they still have questions about his assessment, treatment and care before this awful incident, they welcome the fact that he has now been “taken out of society.” I’m sure our thoughts are with them today.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk