14 September 2015

The Court of Appeal today varied the sentence imposed on Sean Hackett. It substituted an indeterminate custodial sentence for each of the life sentences imposed by the trial judge and specified a period of seven years instead of ten years as the period he has to serve before he can be considered for release by the Parole Commissioners in respect of the manslaughter conviction. The Court did not alter the tariff of four years imposed in respect of the firearms offences. Sean Hackett (“the appellant”) was found guilty by a jury on 6 March 2014 of the manslaughter of his father, Aloysius Hackett, on the ground of diminished responsibility[1]. He was also found guilty of two counts of possession of a firearm and ammunition with intent. The trial judge considered that there was a significant risk that the appellant would commit further specified offences and a significant risk of serious harm to members of the public. He further considered that the appellant would constitute a danger to the public for an unpredictable time and that this was not a case where the appellant’s responsibility for his actions was so grossly impaired that his degree of responsibility was minimal. He imposed concurrent life sentences for the manslaughter and firearms offences with a minimum term of 10 years imprisonment. The appellant appealed against the sentence challenging: whether a life sentence was necessary; whether adequate consideration was given to the imposition of an indeterminate custodial sentence; whether a tariff of 10 years reflected the appellant’s culpability; whether the learned trial judge was correct to consider that the appellant’s overall responsibility was comparatively high; and whether he was correct to give weight to a number of the aggravating factors taking into account his diminished responsibility. Subsequent to the notice of appeal being lodged, the appellant obtained further medical reports which the Court agreed to introduce. These were in support of a diagnosis of delusional disorder and were directed to the nature and severity of the appellant’s mental abnormality, the level of his residual culpability, the treatment of his condition, the predictability of the timeframe for such treatment and the appropriateness of a hospital order with restriction. It was also agreed that the prosecution could introduce evidence in rebuttal. The thrust of the additional legal evidence from Dr Minne, a consultant psychiatrist and forensic psychotherapist, was that the appellant was suffering from a delusional disorder at the time of the killing, that he is still suffering from the disorder, would benefit from psychotherapy and possibly medication at a later stage and that his condition is treatable. She said this is a medical condition which is very difficult to recognise because the person appears to be completely normal. Dr Minne considered that the prognosis for the appellant could be good if treatment was provided in a secure psychiatric setting. Her opinion was that a hospital order with restriction was the appropriate disposal in this case. She felt that if the appellant remained in prison untreated the psychotic part of his mind would remain unchallenged and he would emerge from prison at the same high risk of a recurrence of a violent outburst as he is today. Dr Browne, giving evidence on behalf of the prosecution, was concerned that if a hospital order with restriction was imposed there was a significant risk that the appellant would be discharged from detention by the Mental Health Review Tribunal (“the Tribunal”) on the basis that he did not suffer from a mental disorder. He noted that it was not safe to assume that all the available psychiatric medical evidence would be available to the Tribunal as the current arrangements are that some brief papers are provided to the members upon which to reach their determination. The Court of Appeal did not consider that this process would be sufficient for the Tribunal to take all relevant issues into account and directed that a copy of its judgment should be sent to the President of the Tribunal to consider whether any amendments to the process need to be incorporated. The Lord Chief Justice, delivering the judgment of the Court of Appeal, said that in a complex case of this kind it is unsurprising that the medical evidence remains controversial. He noted that no case was advanced on behalf of the appellant at the trial justifying a hospital order with restriction but said the evidence of Dr Minne was “convincing and impressive”. He said the Court had concluded on the balance of probabilities that the appellant suffered from a delusional disorder at the time of the offence and continues to suffer from that disorder. The Court also accepted that the appellant’s ability to form a rational judgment about his culpability was significantly impaired and that his culpability was not as high as the evidence before the trial judge suggested. The judgment went on to set out the statutory regime under which the court can impose a hospital order and the Tribunal’s power to discharge a patient. The Court noted that where the Tribunal is not satisfied that a patient’s discharge would create a substantial likelihood of serious physical harm to himself or to other persons, the Tribunal is required to make an evaluative judgement and assessment about future events. The Lord Chief Justice said that when considering this test the Tribunal should examine the nature and extent of the risk and the consequences if the event were to occur. It should then, as a matter of judgement, assess whether the likelihood of serious physical injury is substantial. The Lord Chief Justice said that likelihood is not to be interpreted as requiring a probability of serious physical injury but that in cases where the risk is of an injury that is very serious or life-threatening “a real possibility may well be sufficient to satisfy the test”. The Court of Appeal, having considered the medical evidence, was satisfied that there is a compelling need for the appellant to receive psychotherapy treatment in relation to his condition. The Lord Chief Justice said the treatment is likely to be prolonged and can effectively only be delivered within a secure hospital environment by an experienced psychotherapist. He noted that the only such available opportunity in Northern Ireland is the Shannon Clinic and said that, in the absence of such treatment, the possibilities are either that the appellant will be detained for an indefinite period on the basis that he constitutes a significant risk of serious harm or alternatively that he will be released in circumstances where he actually presents such a risk: “The requirement to provide the appellant with the treatment that he needs can only be delivered either by a hospital order with restriction or by a prison transfer order. A prison transfer order can be made by the Department of Justice where it considers it expedient and where the Department is satisfied by written reports from two medical practitioners that the person suffers from mental illness of a nature or degree which warrants his detention in hospital for treatment. We conclude that the appellant’s culpability was low but not minimal and that punishment is not inappropriate”. The Court of Appeal was concerned that there remains a strong degree of uncertainty about the appellant’s medical condition and in particular about the assessment of any residual responsibility for the offence beyond the medical diagnosis, a decision which would be left to the Tribunal. The Lord Chief Justice said the evidence in the case made it plain that there is a compelling need for the appellant to receive appropriate psychotherapy either in the Shannon Clinic or some other suitable location and that to conclude that it was not expedient to provide such treatment would require very weighty countervailing considerations even in the context of limited availability: “In those circumstances we have concluded that we should not impose a hospital order but that this case requires the Department to urgently consider the making of a prison transfer order. Both psychiatrists who gave evidence before us were critical of the failure to provide this appellant with any treatment to date.” The Lord Chief Justice noted that all parties were agreed that the only appropriate custodial sentences were a life sentence or an indeterminate custodial sentence. In both cases the subsequent release of the prisoner on licence is dependent upon an assessment of dangerousness by the Parole Commissioners. The distinctions between the two are that the Parole Commission has a power to direct the expiry of the licence where the prisoner has been released on licence for a period of at least 10 years and a whole life sentence cannot be imposed by way of an indeterminate custodial sentence. The Lord Chief Justice commented: “This was a truly shocking offence but the medical evidence that we have accepted shed considerable light upon the circumstances. We do not accept that the appellant’s culpability was particularly high and although we have acknowledged the shocking nature of the offence we do not consider that it can be said to be an offence of utmost gravity having regard to the circumstances. Accordingly, we consider that the appropriate disposal is an indeterminate custodial sentence.” The Court considered that the new medical evidence indicates that the culpability of the appellant was not as high as assessed by the trial judge on the evidence before him and substituted a period of seven years before the appellant can be considered for release on licence for the period of 10 years imposed by the trial judge. The Court confirmed the tariffs of four years imposed on the firearms offences.