R v Alfie Turner

This is an appeal against sentence by Alfie Turner, brought with the leave of the single judge.

For manslaughter, she imposed a sentence of life imprisonment with a Hospital Direction and a Limitation Direction within section 45 A of the Mental Health Act 1983 . The minimum term imposed was 8 years less 304 days spent on remand. That should have been stated by the judge as being the period of 7 years and 61 days; and we say at the outset for the avoidance of any doubt that this was a discretionary life sentence with a minimum term of 7 years and 61 days and not a determinate sentence.

On the bladed article counts the judge imposed sentences of 9 months' imprisonment concurrent on each.

The appellant's case is that the manslaughter sentence imposed by the judge was wrong in principle and that the judge should have made a hospital order with restriction under sections 37 and 41 of the 1983 Act . Alternatively, it is said that the minimum term imposed in respect of the discretionary life sentence was manifestly excessive.

Ms Davies KC and Mr Wade appear for the appellant, and Mr Paxton KC and Ms Gladwell appear for the Crown. We are grateful to counsel for their well-focused and clear oral and written submissions.

We turn to the facts. On Friday 23 December 2022 the victim, 51-year-old David Peck, was at the Lion & Lamb pub in Westcliffe-on-Sea. He was a regular at this pub. Mr Peck had the nickname 'West Ham Dave' and was well known and well liked by all those who went there. He spent the evening drinking with friends. That same evening the appellant left his home address (which was not far from the pub) at around 6.30 pm. He was armed with two knives and a loaded crossbow. A member of the public, Mr Upson, saw the appellant in the street at about 6.30 pm and became concerned about what he saw. He challenged him but not in a forceful way, bearing in mind that the appellant was armed with a crossbow. Mr Upson asked him, "What have you got?" and the appellant responded, "It's a crossbow". The appellant then entered the pub. He was only there for a matter of minutes, but in this short time he raised and levelled the crossbow towards Mr Peck, who was sitting across the bar opposite the appellant. He shot Mr Peck once in the chest and calmly left the premises.

Mr Peck, having been shot, grabbed his chest and collapsed from his stool on to the floor. A number of people tried to help him and an ambulance was called. Paramedics attended within minutes, but Mr Peck had suffered severe damage when the crossbow bolt entered his chest, and he was sadly declared dead at the scene.

The witness, Mr Upson, was still outside on the street and heard a scream, before seeing the appellant leave the public house and walk about ten steps, before stopping outside of a shop next door. There, he saw the appellant put the crossbow between his legs and bend down over the top of it as if he were trying to reload it with another bolt. Someone else then came out of the pub and Mr Upson, who was worried because he thought the crossbow was being reloaded, walked away and lost sight of the appellant.

Police officers were deployed to Westcliffe-on-Sea with a description of the appellant. At one point the appellant called the police himself to inform them that he had accidentally shot a neighbour with a crossbow. As a result of that report, a trained negotiator, Detective Sergeant Cronin, was deployed to speak with the appellant. The appellant explained he had discarded the crossbow and indicated that he had used a knife to cut the wires of the crossbow. He was arrested around 8 pm and found to be in possession of two knives. One was described as a multi-tool and the other a hunting knife. Having searched the local area, officers recovered the crossbow. It was found with some further bolts in a carrier bag.

The appellant's home was searched, and police found paraphernalia consistent with what he had possessed and used to kill Mr Peck, namely an air compressor, rifles with scopes, arrows, a crossbow spring and a yet further knife.

At the police station the appellant was assessed, and he was subsequently interviewed on two occasions, when he answered no comment to all questions asked.

As one would expect, psychiatric evidence played a major part in this case. We have considered the evidence before the judge, together with the helpful recent report from Dr Pooja Bhasme who is the appellant's responsible clinician. Dr Bhasme also assisted us this morning with oral evidence.

At the sentencing hearing before the judge on 26 October 2023, Dr Bhasme and Dr David Baird gave oral evidence. At that time the appellant was detained at Rampton Secure Hospital under the care of Dr Bhasme. There were also detailed reports from Dr Cumming, the Crown's expert.

We turn to the sentencing approach of the judge. The judge noted that the relevant guidelines were for manslaughter by reason of diminished responsibility alongside the mental health sentencing principles and guideline for possession of an offensive weapon. In particular, under step 2 of the Manslaughter Guideline, the judge was required to identify the level of retained responsibility as one of high , medium or lower , and to assign an appropriate starting point. After considering aggravating and mitigating factors and then dangerousness under step 3, it was at step 4 under the guideline that mental health disposals must be considered. The principal issue for sentence in relation to this step 4 was whether the judge should pass a section 45 A (also called hybrid order) or a hospital order under section 37 with a section 41 restriction. That is also the primary issue on the appeal.

In terms of history, the appellant was 44 years old, with previous convictions for theft, criminal damage, assault on police, ABH and driving offences. However, his last conviction had been some time ago in 1999.

Before turning to Ms Davies KC's submissions, we will summarise the psychiatric evidence. The appellant had been diagnosed with paranoid schizophrenia, and all the experts agreed that it was of a nature and degree which warranted detention in a hospital for treatment and that treatment was available. All experts agreed that the criteria for the imposition of a section 37 hospital order were met. In addition, all agreed that the criteria for a restriction order in accordance with section 41 were also met. The evidence given within the reports of Dr Cumming, Dr Bhasme and Dr Baird, in addition to their live evidence, was that but for the mental illness the appellant suffered from, this offence would not have occurred. Dr Baird, within his report, agreed with the finding of Dr Cumming and then went on expressly to say, "His degree of culpability for the killing is low because I believe there are strong correlations between the events of the offence and Mr Turner's psychotic disorder". Dr Baird in evidence stood by his written reports that retained culpability was low. However, following questions from the judge on the subject of his actions after he shot Mr Peck (that is, actions of deliberately disabling and concealing the weapon and lying as to the manner of the killing - saying it was an accident - and as to his medication) Dr Baird gave a slightly different answer in relation to the assessment of retained responsibility. He explained that his view was that culpability was between the low to medium range.

Dr Bhasme in her report also considered at some length both a hybrid order and the section 37 -41 approach. Her evidence, as she affirmed this morning, is that a disposal under sections 37 and 41 would allow robust oversight of his care, involving involvement of a responsible clinician and supervision by mental health services, which would be preferable to supervision or monitoring by the probation service. Dr Bhasme's evidence before the trial judge was that the appellant's condition was chronic, and she underlined that sections 37 and 41 would give better protection to the public and would manage the risk posed by the appellant more effectively.

We turn then first to the issue of the judge's conclusions on retained responsibility and her description of the factors she considered relevant in her sentencing remarks. The Crown had submitted before the judge that the degree of responsibility was high, given the appellant's level of planning, the use of multiple weapons and the execution of the relevant act. They also relied on the fact that, despite the number of medical reports available, the appellant had never explained why he committed the act. On the evening, he said he shot accidentally and then later suggested that he had no memory of what had happened. By contrast, the defence submitted that this was a case of lower responsibility, relying substantially on the range of expert evidence to which we have already made reference. It was of course for the judge to make a decision and not the experts. The judge disagreed with both the appellant's counsel and the Crown. She found that the level of retained responsibility was at the medium level. We pause here to note that the judge did not give particularly full reasons for explaining why she had decided to adopt this middle ground at the medium level, but one can see when one considers the entirety of her sentencing remarks her essential reasoning.

In this regard the judge made the following findings of fact based on the psychiatric evidence. The appellant had had poor mental health since 1999 and at the time of the attack was acutely psychotic and suffering from paranoid schizophrenia. He was severely unwell at the time of the offences. His mental health had deteriorated at that time and he was not complying with the medication regime, and although on occasions he had self-medicated with alcohol he had not done so in the weeks leading up to the offence. The judge explained that he had for some time suffered from paranoid and auditory hallucinations, resulting in his offending. The judge further explained that his actions after the offence, despite his mental health conditions, were such that they showed that his psychosis did not affect all of his thought processes; in particular, the telephone to the police saying it was an accident and that he had cut the string on the weapon indicated the contrary. He had also lied about taking medication. The judge was sure that, despite his condition, he was both capable of and did form the specific intent to kill. He had armed himself before leaving his home, walked to the public house and shot Mr Peck in a calm fashion.

We turn then to the judge's approach to the starting point. Under the Manslaughter Guideline, for a medium level case the starting point is 15 years with a category range of 10 to 25 years. In the judge's sentencing remarks - and here we refer in particular to page 9B - the judge explained that she was going to take a starting point of 18 years. The judge did not explain why she took a starting point of 18 years, but it is in our judgment implicit. taking the sentencing remarks as a whole, that the judge moved up in the category range from 15 to 18 years based on her earlier findings concerning culpability. The judge then considered separately the aggravating and the mitigating factors and decided that they balanced one another out. The judge then accordingly remained at the 18-year starting point. The judge found that the appellant was entitled to full credit for his plea (a third). That resulted in the appropriate sentence for manslaughter being 12 years. The judge then separately considered, in accordance with the guideline, the issue of dangerousness and whether a life sentence was required to mark the gravity of the offence when combined with the danger the appellant posed. The judge found that the appellant posed a very high risk of reoffending and the risk related directly to his mental health being treated.

No issue is taken by Ms Davies KC in relation to the judge's findings of dangerousness, but we will, for the purposes of this judgment, summarise the judge's reasoning.

The judge first noted the appellant's previous history when his mental health had deteriorated. That was in 2015 and 2016. That was a time when the appellant would not leave his home unless he had a knife with him. She also noted the finding of the psychiatrists, who had recommended a section 41 restriction, indicating that such a restriction was necessary to protect the public. The judge rightly observed that inherent in such a recommendation was a finding by the psychiatrists that he posed a danger. The judge found the appellant posed a danger of committing further serious specified offences whereby others might be caused death or serious harm as a result. She also found that there was no guarantee that the events surrounding Mr Peck's death would not happen again. The judge explained she could see no time when the risk would end and ultimately, standing back, found that the offence justified a sentence of life imprisonment.

We turn then to the judge's approach to step 4 of the Manslaughter Guideline. The judge was satisfied that the appellant was suffering from a mental disorder such that the illness was of a nature and degree to warrant his detention in a hospital under the Mental Health Act and that he required treatment in conditions of high security and that treatment was available to him. Since a hospital order might be an appropriate way of dealing with the appellant, the judge was therefore required, in accordance with well-established case law, to consider a number of sentencing options. That included: a section 37 order, with or without restrictions under section 41; an order of simple imprisonment, with a determinate sentence; and alternatively, a sentence of imprisonment and a hospital order under section 45 A, which we have described as a hybrid order - that is an order under which he would first go to hospital for treatment by mental health specialists and then upon his recovery return to the prison estate. Having regard to all the circumstances and the guidance of the Court of Appeal in a number of cases, the judge concluded that a hospital order under section 37 with a section 41 restriction was not appropriate. Accordingly, she decided that the appropriate sentence was one of life imprisonment with a section 45 A hybrid order. She explained that such a sentence ensured that he first obtained treatment. It meant that, should he ever be assessed as fit to leave a mental institution, he would be transferred to a prison and not simply released.

The judge was required by law to fix the minimum period he would serve before he could apply for parole to be considered for release. She explained that if further adjustment was required to the minimum term she had decided upon earlier in the sentencing remarks, the judge needed to reduce the notional determinate sentence by one-third in order to reflect the fact that there would be no early release provision. Accordingly, she decided the appropriate minimum term was one of 8 years. The sentence therefore that she imposed was one of life imprisonment on count 2, and on counts 4 and 5 concurrent sentences as we have described, and as we have also described, the minimum term was a period of 7 years to which were to be added the number of days by way of credit.

We turn then, having described in some detail the judge's overall approach to sentence, to the submissions made by Ms Davies KC both in the written grounds and as elaborated upon this morning. The primary case made by Ms Davies KC is that the sentence was wrong in principle because, whilst it was open to the judge to depart from the evidence and opinion of the experts, the guidelines say, and reason dictates, that there must be compelling reasons to set such evidence aside. Ms Davies argued that the judge fell into error in concluding that the release regime (that is, release on licence from a section 37 or 41 disposal) did not afford greater protection to the public than that under a hybrid order. In her oral submissions this morning Ms Davies KC focused in particular on the differing recall regimes and how it would be insured that the appellant had appropriate medical intervention, including drug administration on recall. She also relied on the fact that probation officers are not equipped to address complex mental health issues, as well as the delays involved in a recall to prison and then to a hospital. In this regard the difference in the recall regimes for those who have complex mental health needs was supported in the oral evidence we heard this morning from Dr Bhasme.

That is Ms Davies KC's primary submission. However, she has a secondary submission that were we to find that a hybrid order was not wrong in principle then the sentence itself was manifestly excessive because the judged erred in her assessment of retained responsibility in not only departing from the expert evidence but also in her assessment of the significance of the wider circumstances of the appellant's case. Ms Davies KC argued that retained culpability ought properly to have been assessed as being low and that the judge erred in identifying a starting point of 18 years.

These submissions were persuasively presented by Ms Davies KC but we do not accept them essentially for the reasons given in the written and oral submissions of Mr Paxton KC for the Crown. We start by noting that the relevant Manslaughter Guideline outlines the mental health disposals for the court to consider at step 4, as we have described earlier. The guideline states that the court should consider a hybrid order prior to a hospital order. We also note that the Crown Court Compendium Part 2 section 6.2 also states that in deciding on the most suitable disposal, the court should reflect upon the importance of the penal element in a sentence. In circumstances where a judge concludes that a hospital order may be an appropriate disposal, a judge should proceed in the following order.

First, as section 45 A(1) requires, before a hospital order is made consideration should be given to whether the mental disorder can appropriately be dealt with by a hospital limitation direction under section 45 A. If it can, then the judge should make such a direction. If such a direction is not appropriate, the judge must next consider whether, having regard to the considerations set out in section 37(2) (b), a hospital order would be the most suitable disposal.

We refer in this regard to the case of Vowles [2015] EWCA Crim 45 . In Edwards [2018] EWCA Crim 595 , this court reiterated the position stated in Vowles . It explained that consideration of a section 45 A order must come before the making of a hospital order because a disposal under section 45 A 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". "The graver the offence and the greater risk to the public on release of the offender, the greater emphasis the judge must place on the protection of the public and the release regime."

There is force in Mr Paxton KC's submission that the arguments for the appellant do not give this issue of the penal element (as opposed to release regimes) sufficient consideration as part of the criticism that a hybrid order was not an appropriate order. As the judge correctly stated at page 5 of her sentencing remarks, the judge should remind themselves of the importance of the penal element.

We note that in the case of Ahmed [2016] EWCA Crim 670 , the Court of Appeal said that release arrangements following a hospital order might well provide better protection for the public because those responsible for monitoring the appellant in the community had a higher level of expertise and resources than the probation service. But in Edwards (to which we have already made reference) the court explained that that comment from the case of Ahmed was not of general application and each case must turn on its own facts. Further, it is established that whilst the release regime is a matter for a judge to consider, it is not the only factor to consider in determining the type of sentence which is just in the circumstances. The judge expressly referred to this case law in her sentencing remarks, and we are confident that she had it well in mind. Indeed, it is not submitted by Ms Davies KC that there was any error of law in the judge's approach to the sentence.

The issue of the regime after release was a matter for the judge, and we note that she asked Dr Bhasme questions about this and considered this in her sentencing remarks. In our judgment the sentencing remarks made clear that the judge not only considered the psychiatric evidence in coming to her conclusion that recall and wider public protection were better satisfied under a hybrid order, but also that this was a conclusion which she was entitled to come to on the evidence.

As was explained by this court in Vowles at (51) in particular, a sentencing court must consider all of the evidence and not feel bound by medical opinion. The court emphasised in that case that judges should not feel circumscribed by the psychiatric opinions.

In our judgment the following evidence from the experts was significant and suggests a more nuanced approach than that suggested by the appellant on this appeal. So we note that Dr Cumming did not conclude that a hybrid order was inappropriate; he simply highlighted his view that the hospital order was more appropriate. Dr Baird also had a more nuanced approach, indicating that a hospital order was more appropriate. Dr Bhasme went perhaps a bit further, but she, as she did today, ultimately concluded that it was a matter for the sentencing judge.

So in these circumstances, having considered not only the oral and written submissions but also the medical evidence before the judge, we consider that the judge's approach in concluding that a hybrid order was justified in the circumstances was a correct reflection of the facts before her and we can find no error in the judge's approach.

We turn then to Ms Davies KC's secondary submission that the terms of the discretionary life sentence were manifestly excessive because too high a starting point, based on the degree of retained responsibility, was adopted by the judge. We have already explained earlier in our judgment how we infer the judge came to the starting point of 18 years before considering mitigating and aggravating factors. Ms Davies KC identified this morning a number of factors in support of her submission that retained responsibility was low. Those factors focused, amongst others, on the level of impairment at the time of the appellant's offending and in particular upon his medical history. But we note also that, as stated in Edwards , the fact that an offender would not have committed an offence but for a mental illness does not necessarily absolve them of all responsibility for their actions. As we have explained earlier, the Crown had argued that the appellant had a high degree of responsibility. The judge did not accept that, but she also did not accept that the degree of responsibility was low. The judge was plainly entitled to form that view, although as we have expressed in argument, she could have perhaps set out her reasons in more detail. That said, we note the following important facts. The appellant had armed himself with two knives (a hunting knife and a multi-tool) and a crossbow. The crossbow was found with some bolts in a carrier bag. The appellant's home address was searched and other weapons were found consistent with what was used in the offence (namely, an air compressor, rifles with scopes and further weapon-related paraphernalia). The appellant's attack also appeared targeted. We note that Ashley Brett, a member of staff, described the appellant shouting "Oy" to signal Mr Peck; and James Maskell, a friend of Mr Peck, noted how calm and collected the appellant seemed to be and described a direct aim towards Mr Peck. The appellant was also, as we have described, observed by witnesses attempting to reload the crossbow in the public house before deciding to exit the scene. James Maskell described the appellant attempting to reload the crossbow between his legs. Like the judge, we note that the appellant also never explained why he committed the offence and had provided a number of different explanations originally, including the claim that he had accidentally shot a neighbour. He later then suggested that he had no recollection of the incident. In our judgment the judge was entitled in all of the circumstances to assess the appellant's degree of responsibility as medium.

We also note, as identified by the Crown, that factual assessments of this type are difficult to make, and indeed, as we have stated earlier, Dr Baird in fact moved in his evidence in his assessment of the degree of retained responsibility from 'low' to a level of 'low to medium' retained responsibility.

It is clear to us from the judge's questioning of the experts and her sentencing remarks taken as a whole that she balanced the competing arguments of the Crown and the appellant in coming to her conclusion that this was a medium level case. Accordingly, we reject Ms Davies KC's secondary argument.

Overall, in the circumstances of this case, the judge was plainly justified in determining that the appellant was dangerous and that a discretionary life sentence was appropriate. The level of the minimum term the judge fixed has already been described by us and we do not consider in all the circumstances it was manifestly excessive when one looks at the particular facts before the judge.

Finally, we should record that we received and have read a helpful statement from Mr Peck's partner, Joan Whelan, which refers to sentences in comparable cases. We would simply underline that the sentence received by the appellant in this case is a discretionary life sentence. The term specified by the judge is a minimum term. He has no guarantee of release and in fact he may never be released. We would simply underline that point for the avoidance of doubt.

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