Falling between the disposal cracks

In R v Wood [2026] EWCA Crim 480 on 3 April 2018 firefighters found the appellant unconscious in his Sheffield Council bungalow after passers by spotted smoke. Expert evidence showed the fire had been started deliberately by igniting a curtain draped over the sofa. He had dyspraxia, was alcohol dependent, and had significant cognitive impairment from a 2015 fall causing a basal skull fracture and frontal brain haemorrhages, leaving him with dysexecutive syndrome. At the trial, no intermediary was provided, the court psychiatrist had not seen the medical records regarding his brain injury, and a concerned jury member passed the following note to the judge:

Sir, I hope you do not find this premature or critical, but I have immediate concerns over the mental capacity of the defendant based on his appearance, manner, behaviour in the dock. Is the legal system or the mental health system more appropriate? Perhaps this will be addressed. Sorry if this offends but it is an honest reflection.

The trial continued and he was convicted of arson being reckless as to whether life was endangered, and sentenced to an extended sentence of 9 years, consecutive to 11 months activated from a suspended sentence imposed the previous year for an earlier attempted arson. On appeal, fresh neuropsychological psychiatric evidence and unanimously concluded he had been unfit to stand trial, but that his condition was not treatable, so a hospital order was not sought.

A Care Act assessment concluded he had eligible needs for a supported living placement, but a supervision order was unavailable because neither the local authority nor the Probation Service would act as supervising officer. Moreover, he was found to have capacity to make decisions as to residence and care so there would be no means of enforcing any requirements imposed by a supervision order, particularly to prevent him accessing alcohol.

Accordingly, in the absence of a hospital or supervision order disposal, the Court allowed the appeal, quashed the conviction, substituted findings of disability and that he did the act, and made an order for absolute discharge. The local authority was to arrange supported living accommodation to which the appellant consented to avoid street homelessness, and Probation would trigger MAPPA arrangements to manage the risks.

Comment

Aside from the impressive intervention of the juror regarding the appellant’s fitness to stand trial, this case illustrates the difficulties navigating the hospital order/supervision order/absolute discharge options of the criminal courts for those found unfit. In relation to his capacity, given the repeated fire-setting incidents, it would have been interesting to test the evidence as to whether his mental impairment was causing him to be unable to ‘use’ the information relevant to residence and care. The case certainly illustrates the importance of multi-agency co-operation when someone has a brain injury, alcohol dependency and an offending history when the person cannot be detained in prison, hospital or in social care.

Given that “Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind” (MHA s1(3)), the following paragraph of the judgment raised an eyebrow:

“48. A hospital order is not an option in the present case, because the medical professionals do not support it. Whilst alcohol dependency is a recognised mental disorder within the meaning of the Mental Health Act 1983, and qualifies as a mental health condition for the purposes of treatment, it does not qualify as a basis for detention in hospital.

Whilst alcohol dependency is excluded from the ‘mental disorder’ definition, there can of course be mental disorders associated with it. Moreover, a brain injury resulting in personality and behavioural changes can also amount to a ‘mental disorder’, which is the cornerstone of any form of health or social care ‘unsound mind’ detention for Article 5(1)(e) purposes.

This article was written by the Court of Protection team at 39 Essex Chambers.