The shape of justice: Sentencing of mentally ill defendants convicted of manslaughter

Introduction

On 13 June 2023, in Nottingham, England, Valdo Calocane stabbed to death two University students and a school caretaker in separate attacks. Using the caretaker's van, he then knocked down three people in two further attacks. They survived although sustained very serious injuries. Following his arrest, Mr Calocane was originally charged with three counts of murder and three of attempted murder but following consideration of psychiatric reports, the prosecution accepted pleas of guilty to manslaughter on the grounds of diminished responsibility (DR) (as well as guilty pleas to attempted murder) and sentencing proceeded on this basis. There was evidence before the court that Mr Calocane had suffered from symptoms of schizophrenia since 2019 and while on custodial remand he had been transferred from prison to a high secure hospital. At the sentencing hearing, on 25 January 2024, he was given a hospital order (section 37, Mental Health Act 1983 (MHA)) with an added restriction order (section 41 MHA) and returned to the high secure hospital, having been told he would be detained ‘very probably for the rest of (his) life’. ¹

This outcome was immediately criticised because ‘true justice ha(d) not been served’ ² and the Solicitor General later referred the sentence to the Court of Appeal as being ‘unduly lenient’. It was said ‘the judge failed to reflect sufficiently the multiple aggravating features of the offending when arriving at an appropriate minimum term of imprisonment under a life sentence … (and) failed to take sufficient account of evidence to the effect that the offender's culpability was not extinguished by his mental illness, and the extent of the harm caused. (The judge) was wrong not to include a penal element in the sentence’ (para 5). ³

This paper will examine the sentencing process. It is not intended to examine justice from the victims’ point of view.

Evolution of the partial defence of diminished responsibility

The distinction between murder and manslaughter can be traced back to the thirteenth century ⁴ but the concept of DR did not appear in English law until the Homicide Act 1957, although it had been introduced 90 years earlier, in Scotland. ⁵ The Royal Commission on Capital Punishment 1949–53 had recognised mental abnormalities amounting to DR could be applicable to a wide range of offences but did not recommend its introduction for the ‘limited’ purpose of avoiding the death sentence for murder. ⁶ Subsequently, the course of DR became intertwined with only the law relating to murder. The Homicide Act 1957 retained the death penalty for the newly created category of capital murder, which included murder done in the course of theft, murder by shooting or by causing an explosion, as well as the murder of a police officer or prison officer acting in the execution of their duty. All other cases of murder were now given a mandatory sentence of imprisonment for life upon conviction. Capital murder was later abolished by the Murder (Abolition of Death Penalty) Act 1965, which meant all convictions for murder now carried the sentence of life imprisonment. The 1957 Act also introduced the partial defence of DR on to the statute books. Part of the momentum behind this change in the law came from the outcry following cases such as Derek Bentley. He was executed in 1953 following his conviction for the murder of a police officer. It was Bentley's accomplice who had fired the fatal shot but he was sentenced to be detained during Her Majesty's pleasure because he was only 16 years old at the time. Bentley was sentenced to death by hanging as he was 19 years old although his mental age was far lower. The partial defence of DR was introduced as a possible mechanism for those with a mental disorder to be convicted of manslaughter and thereby avoid the death penalty. DR is raised by the defence and is a partial defence because, if successful, it does not lead to an acquittal but reduces the charge of murder to one of manslaughter. This allows the trial judge discretion as to the sentence, although life imprisonment remains an option.

The concept of DR has long been contentious. Opponents to its continued existence argue ‘the issues raised by mental abnormality short of insanity’ properly belong to the sentencing exercise, although there can be no discretion so long as the mandatory sentence for murder continues (para 5.17). ⁶ Proponents for the partial defence point out the defendant's culpability is reduced and it would be ‘unjust to label as murderers those not fully responsible for their actions’ (para 5.18). ⁶ The Law Commission's recommendation was to leave DR ‘unreformed’ but it did make suggestions as to how the partial defence might be reframed (para 5.93 et seq). ⁶ These proposals were further developed following a review of the law of murder, that included a recommendation for the definition of DR to be ‘modernised, so that it is both clearer and better able to accommodate developments in expert diagnostic practice’ (para 5.107). ⁷ Another recommendation, for a new Homicide Act, has not been taken up to date but the law defining the partial defence of DR (and provocation, now known as loss of control) was modified by the Coroners and Justice Act 2009. The amended Homicide Act now defines ‘persons suffering from diminished responsibility’ as those suffering an abnormality of mental functioning arising from a recognised medical condition, which substantially impairs their ability to understand the nature of their conduct, and/or to form a rational judgement and/or to exercise self-control. This echoed very similar wording used to define the legal concept of ‘abnormality of mind’ in Byrne. ⁸ The abnormality of mental functioning also needs to provide an explanation for the defendant's acts and omissions in doing or being a party to the killing.

Why the plea of diminished responsibility was accepted by the Crown Prosecution Service

Mr Calocane's psychiatric career was summarised in the sentencing remarks at court ¹ and later in the Court of Appeal's judgement. ³ His psychotic symptoms started in 2019 and required in-patient treatment on four occasions, each under the MHA. The symptoms included auditory hallucinations, persecutory delusions of being spied on by his neighbours and by the intelligence services, being under the control of artificial intelligence, believing his family may be in grave danger and disturbances in his thinking. He also had significantly impaired insight into his mental illness. This led Mr Calocane to deny he had a mental illness, to stop taking his medication and disengage from community mental health services. His behaviour was influenced by his psychotic symptoms; for example, he tried to enter other neighbouring flats and took himself to MI5 headquarters to hand himself in, and it is said he bought the knife used in the killings ‘in response to hearing voices’. ¹ Mr Calocane's aggressive behaviour ‘appeared to be closely linked to psychotic episodes’ (para 39(vi)), ³ and this included an assault on a police officer, an altercation with a flatmate and, in the month prior to the killings, assaults on two work colleagues.

Between them, the psychiatric reports, commissioned by both the prosecution and the defence, were agreed Mr Calocane's psychotic symptoms, arising from paranoid schizophrenia, which is a ‘recognised medical condition’, were present at the time of the killings. Mr Calocane's ‘abnormality of mental functioning’, which arose from his schizophrenic illness and was summarised as being ‘characterised by reality distortion symptoms and disturbance of affect’ (para 6.5), ⁹ was judged to substantially impair his ability to form a rational judgment and to exercise self-control. Accordingly, the legal criteria for the partial defence of DR were satisfied.

His Majesty's Crown Prosecution Service Inspectorate, at the request of the Attorney General, conducted an urgent assessment of the handling of the case by the Crown Prosecution Service (CPS), following concerns raised by the bereaved families to the UK Prime Minster. The Inspectorate reported in March 2024 and concluded the decision to accept Mr Calocane's pleas of guilty to manslaughter by reason of DR was ‘correct’ (para 1.6). ⁹ Furthermore, the ‘CPS could not have proceeded on the murder allegations because of the clear and unambiguous findings of the prosecution and defence psychiatric reports’ (para 1.7). ⁹

NHS England published the independent report, it had commissioned into the care and treatment provided to Mr Calocane, in January 2025. ¹⁰ The purpose of the investigation was ‘to identify learning for NHS delivered care from the care and treatment provided to VC,’ and it focused on ‘identifying learning at a local, regional and national level to reduce the likelihood of a reoccurrence’ of the grave offences committed by Mr Calocane. This investigation forms part of the broader framework of governance in the aftermath of a homicide by a person in contact with mental health services. Commissioning an investigation also highlights that legal defences to criminal charges, and in this case the partial defences to murder, determine the type and intensity of mental health services provided to an individual.

In April 2025, the Lord Chancellor and Secretary of State for Justice announced, in the House of Commons in London, the establishment of the Nottingham Inquiry. The aim of this judge-led inquiry is to ‘build a clear understanding of the events, acts and omissions that led up to (Mr Calocane) carrying out these brutal attacks,’ and it will also examine the CPS's handling of the case (https://nottingham.independent-inquiry.uk/document/terms-of-reference/). It aims to report within 2 years of commencement.

Sentencing: culpability and the penal element

Having had the guilty plea to manslaughter rather than murder, accepted by the Crown, the defendant needed to be sentenced. The prosecution had argued, at the sentencing hearing, for ‘a significant penal element’ and ‘the appropriate disposal was by way of a sentence of imprisonment for life with a hybrid order’ (para 45). ³ The defence team had argued for a hospital order with restrictions, under the Mental Health Act 1983. The judge referred to sentencing guidelines including guidance for ‘Sentencing offenders with mental disorders, developmental disorders or neurological impairment’ ¹¹ in coming to his decision as to an appropriate sentence.

The judge was very clear, in his sentencing remarks, in emphasising the ‘extreme gravity and the appalling consequences of (Mr Calocane's) crimes’ and ‘the devastating impact’ they had on his victims and their families. ¹ The first stage in the sentencing process was to consider the degree of responsibility retained. ¹¹ The judge concluded Mr Calocane's ‘level of responsibility … was at the lower end’. This was based on the lack of any previous convictions, the lack of ‘relevant religious, ideological or political affiliations’ and the overriding factor that, absent the mental illness, he would not have committed the offences. The symptoms of the mental illness were also considered to completely account for his decision to stop his antipsychotic medication, which was ‘not … the exercise of a rational choice’, ¹ as well as the preparatory actions he took in the lead up to the offences. As Peay observed, ‘a mental disorder can produce offending in a way that all but extinguishes both responsibility and culpability, even though the offence involves elements of premeditation, planning and takes place in a non-spontaneous way’. ¹² In a thoughtful review, Hallett ¹³ highlights the complexities that can arise in trying to understand the relationships between the medical concept of mental disorder and the legal concept of culpability, which may include non-psychiatric factors. He urges psychiatrists to recognise culpability is an ultimate issue to be determined by the court, although psychiatrists can and should comment on how an individual's mental disorder can affect their functioning and thought processes. In the present case, there was no criticism the psychiatrists had overstepped their area of expertise but for others to do so risks damaging the standing of expert evidence.

The abnormality in mental functioning provided an explanation for Mr Calocane's conduct in committing the killings. The acute symptoms of the severe mental illness of paranoid schizophrenia provided the context for understanding why the killings took place and in this case were considered to offer ‘a very compelling dominant explanation’ (para 6.17) ⁹ for Mr Calocane's actions, although such a thorough understanding is not a statutory requirement. The Court of Appeal reiterated the Sentencing Council guidance on Sentencing Offenders with Mental Disorders which states ‘culpability may be reduced … if there is a sufficient connection between the offender's impairment or disorder and the offending behaviour’ (emphasis added) (para 67). ³ Establishing a credible causal connection does not necessarily indicate the level of culpability in a particular case and nor does ‘the offender's apparent understanding of his actions … undermine the partial defence of diminished responsibility’ (para 6.14). ⁹ In the index case, the defendant was also charged with three counts of attempted murder. As mentioned above, the concept of DR does not apply to any charges below murder and so there is a dichotomous approach to responsibility for the still very serious charges of attempted murder. It is either absent or present and, for the latter, degrees of culpability are redundant questions.

In addition to the question of culpability, the degree to which a penal element should be reflected in the sentence needed to be considered by the sentencing judge. There could be no question about Mr Calocane's dangerousness and the sentencing judge noted that, with reference to the Sentencing Council Definitive Guideline on manslaughter by reason of DR, ¹⁴ ‘if all other things were equal …. (a) life sentence would be appropriate with a long minimum term’. ¹ However, Mr Calocane's mental illness and its influence on his offending needed to be factored in to the sentence and, given the need for psychiatric treatment and monitoring for any deterioration in his mental state, which would be associated with an increased risk to others, the court's disposal should permit Mr Calocane's removal to a secure psychiatric hospital.

The question then became whether a restricted hospital order (sections 37 & 41, MHA) or a hospital and limitation direction (also known as a hybrid order) (section 45A, MHA) was preferable, although the ‘appropriateness test’ for each is identical (‘mental disorder … of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment’ (sec 37(2)(a)(i) and sec 45A(2)(b) MHA, respectively)).

The wording of section 37 calls for alternative methods of disposal to be considered before concluding the hospital order is ‘the most suitable method of disposing of the case’ (sec 37(2)(b) MHA) but also that a hospital order is considered ahead of deciding on a sentence of imprisonment (section 45A(1)(b) MHA). The order of precedence of the (restricted) hospital order versus the hybrid order has become a point of some debate. In Vowles, the Court of Appeal set out the matters to be considered when deciding on the appropriate sentence. This comprised of the extent to which treatment for the mental disorder is required, the extent to which the offending is attributable to the mental disorder, the extent to which punishment is required, and the protection of the public including the release regime (para 51). ¹⁵ The Court of Appeal gave precedence to the making of a hybrid order, if appropriate, ahead of a hospital order. The later case of Edwards corrected a ‘level of misunderstanding’ and stated that ‘section 45A and the judgment in Vowles do not provide a “default” setting of imprisonment’ (para 12). ¹⁶ Nonetheless,

‘Consideration of a s.45A order must come before the making of a hospital order. This is because a disposal under section 45A 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. Sound reasons may include the nature of the offence and the limited nature of any penal element (if imposed) and the fact that the offending was very substantially (albeit not wholly) attributable to the offender's illness. However, the graver the offence and the greater the risk to the public on release of the offender, the greater the emphasis the judge must place upon the protection of the public and the release regime’ (para 12). ¹⁶ The Court of Appeal followed this line of thinking in the more recent cases of Nelson ¹⁷ and Reynolds. ¹⁸

The purposes of sentencing include punishment as well as rehabilitation of the offender but also protection of the public (para 14) ¹⁶ (para 64). ³ However, the need for punishment has been stated as ‘a function of the seriousness of the consequences of the offending and the level of responsibility which the offender bears for that offending’ (para 80). ³ The Court of Appeal went on to observe Mr Calocane's ‘level of retained responsibility was low’ and ‘schizophrenia was the sole identified cause of the crimes’ (para 84). ³ Furthermore, the ‘key factor’ was ‘the strength of the link between the offender's impairment and the offending in question’ (para 85). ³ In the present case, the level of residual responsibility was so low that it ruled out the need for a penal element in sentencing despite ‘the number of victims and the extent of the harm caused’ (para 84). ³

The other factor which influenced the sentencing option in favour of a hospital order was the release regime and this relates directly to the protection of the public. As the Court of Appeal stated in Edwards, ‘the graver the offence and the greater the risk to the public on release of the offender, the greater the emphasis the judge must place upon the protection of the public and the release regime’ (para 12). ¹⁶

There are two aspects to this consideration. First, the environment in which the patient/prisoner is detained and, second, the management and monitoring regime following discharge to the community. Imposition of a hybrid order carried with it the potential for Mr Calocane to be transferred back to prison at some stage during his sentence if psychiatric treatment was successful but such a move would be associated with ‘a real risk of relapse’ (at para 40(iv)(a)) ³ because medication cannot be enforced in prison. However, treatment in a hospital environment carried significant advantages. Given that ‘public safety was reliant on effective treatment’ (at para 40), ³ hospital rather than prison was the appropriate place to deliver and monitor treatment and should Mr Calocane ever be released into the community then the risk he posed to the public was best managed by forensic psychiatric services (at para 51). ³ It has been shown that discharged forensic patients have ‘lower rates of repeat offending’ than many comparator groups. ¹⁹ Moreover, any discharge from hospital would almost inevitably be subject to conditions and the Secretary of State for Justice would remain involved in overseeing the community follow up via the submission of statutory reports from those supervising Mr Calocane. A swift recall to hospital would follow any deterioration in his mental health as this was recognised as ‘the driver of the risk’ he posed to the safety of the public (at para 51). ³

Conclusion

It is self-evident that Mr Calocane's offending caused the greatest level of harm but it does not follow that his culpability was at the same level. It was clear from the expert psychiatric evidence presented to the court that were it not for the mental disorder the offending behaviour would not have taken place. Not only did the acute symptoms of schizophrenia provide the dominant explanation for the offences but they also accounted for the preparatory acts and his omission to comply with prescribed medication. Nonetheless, responsibility was not completely extinguished and so a plea of insanity was not available. There was no debate as to the seriousness of the offences or the level of risk Mr Calocane posed to the public.

There had been considerable disquiet expressed about the Crown Prosecution Service's decision not to pursue convictions for murder. However, if he had been subsequently convicted of murder, the sentence would by fixed by law and would have been imprisonment for life. It is arguable that such an outcome would not only offer less protection to the public, following a similar line of argument as the Court of Appeal used to reject a hybrid order in the present case, but would also fail to recognise Mr Calocane's reduced responsibility for his offending and his need for treatment of his mental disorder which led directly to the offending behaviour.

Relevant considerations for the sentencing court focused on whether the penal element was necessary and how the public would be best protected from future harm. Given Mr Calocane's level of residual responsibility was judged to be at the lower end of the spectrum and the association between his mental disorder and offending was strong, the Court of Appeal concluded the use of a restricted hospital order, rather than a hybrid order, was ‘properly open’ to the sentencing judge (at para 94). ³ The Court of Appeal's examination of the sentencing process was initiated by the Solicitor General's referral on the basis the sentences were ‘unduly lenient’. The Court of Appeal not only emphatically rejected this proposition, it indicated the given disposal of a restricted hospital order could have equivalence to the most severe penal punishment in the UK, a sentence of life imprisonment with a whole life order (at para 95). ³

Postscript

Since this paper was originally written, the Law Commission has commenced a project to review the law relating to homicide offences, the operation of partial defences to murder and the sentencing framework for murder (https://lawcom.gov.uk/project/law-of-homicide/).