A review of how the Valdo Calocane case was handled by the Crown Prosecution Service (CPS) has been ordered by the attorney general, Victoria Prentis KC MP.
Calocane had been charged with three counts of murder and three counts of attempted murder. He killed two students and a caretaker in Nottingham last year and then drove a stolen van at pedestrians, seriously injuring three people.
He was assessed by three psychiatrists who were instructed by the prosecution and the defence. The doctors agreed that Calocane was suffering from paranoid schizophrenia which led to an abnormality of mental functioning and impaired his ability to exercise self-control.
He believed there were voices in his head telling him to act in the way he did and that his family would be at risk if he did not obey. The psychiatrists all said that a partial defence to murder on the grounds of diminished responsibility was available to Calocane.
Diminished responsibility is only a partial defence to murder. It is for the defendant to prove that it applies. When deciding whether to accept a plea of diminished responsibility, the CPS must be satisfied that there is evidence that the defendant’s actions were sufficiently influenced by external factors and that a trial for murder would come to the same conclusion.
In relation to the unlawful killings, Calocane duly pleaded guilty to manslaughter on the grounds of diminished responsibility. That was last November. He also admitted three charges of attempted murder arising from his use of the van. At that point, the CPS took the unusual step of commissioning a fourth psychiatric expert to review the previous reports.
The fourth psychiatrist reviewed the evidence in detail, including extensive mental health records, and agreed with the conclusions of the other psychiatrists that the partial defence was available to Calocane.
On this basis, the CPS concluded that there was no realistic prospect of convictions for murder and accepted Calocane’s pleas.
At Nottingham Crown Court last week, Mr Justice Turner said he was “entirely satisfied that the prosecution were right to acknowledge that [Calocane’s] mental condition satisfied the criteria giving rise to the partial defence of diminished responsibility”. In the circumstances, the judge could have passed a life sentence with a long minimum term.
But the defendant was dangerous. Calocane required treatment for his mental disorder.
That left the judge with two options:
a hospital order under section 37 of the Mental Health Act 1983 combined with a restriction order under section 41 — which means he will not be released until either the justice secretary or the first-tier tribunal concludes that he no longer poses a risk to the public; or
hospital and limitation direction under section 45A, sometimes referred to as a hybrid order — which would allow some part of his sentence to be served in prison.
Turner was satisfied that the first option would better protect the public. He made a hospital order and a restriction order under all six counts of the indictment.
What the judge did not explain in his sentencing remarks is how Calocane could deny murder but plead guilty to attempted murder. The answer came from a KC in a letter to The Times: “diminished responsibility as a partial defence is available only in cases of murder, not of attempted murder”. In a subsequent letter, Lord Wolfson of Tredegar KC, a former justice minister, called for reform of the murder law.
How did these crimes happen?
Calocane should never have been allowed to commit these appalling crimes.
The health secretary Victoria Atkins has ordered a special review of the mental health services at the NHS trust where he was treated.
Leicestershire Police have referred themselves to the Independent Office for Police Conduct and the policing minister has discussed the case with senior officers at Nottinghamshire Police.
What do the families want?
Relatives of those who were killed by Calocane think he should have been sentenced to life imprisonment. He had, after all, admitted attempted murder. The attorney general has been asked by at least one member of the public — which is all it takes — to refer the sentence to the Court of Appeal as “unduly lenient”. She is now considering this.
What went wrong?
It’s seems clear that the CPS failed to take the families with them. In the common law world, victims and their families have no formal involvement in criminal proceedings — except as witnesses. But they should be treated with the utmost respect and consideration. In a case such as this, prosecutors should ensure that they know what is likely to happen in court. Indeed, the attorney general’s announcement yesterday suggests that prosecutors have a legal duty to consult victims or their families.
Prentis said her review would consider:
the CPS’s decision to accept Valdo Calocane’s guilty pleas to manslaughter on the basis of diminished responsibility; and
whether the CPS met its duties to consult families ahead of accepting pleas.
The review will be carried out by Andrew Cayley CMG KC, head of the independent CPS inspectorate.
What’s the likely outcome
I would be surprised if the CPS is found to have been wrong in accepting Calocane’s pleas to manslaughter, given the unanimous medical evidence. There was no suggestion that Calocane was making any of this up. Someone suffering from paranoid schizophrenia can take actions that appear rational.
I would not be surprised if Cayley finds that the CPS failed in its duties to the families of those who were killed. His long experience of international war crimes has given him a profound sensitivity to the needs of victims.
I would be very surprised if the attorney general decides to refer the sentence to the Court of Appeal as unduly lenient. She has told Cayley to report by Easter. By then, it would be too late for her to refer the case to appeal judges.
If she does refer the case, I would be astonished if the Court of Appeal decided that the sentence was unduly lenient and that it should be replaced by a hybrid order.
Comment
The criminal barrister Matthew Scott, who writes as BarristerBlogger, published a very detailed and thoughtful piece on the case this week. He concluded:
The terrible consequences of [Calocane’s] crimes can never be remedied, but he is no monster. He is a very sick man who faces a lifetime behind bars, a lifetime of ill-health and very probably an early death.
From what I can tell, this was a failure of communication — not of justice:
Joshua, what a timely and lucid analysis- thank you! From my earliest teens pacing around the school grounds with one very clever friend debating with him a then hot issue I have been a passionate and never subsequently doubting abolitionist. I am also grateful to David Barlow and Alisdair BUT:
I am with respect to the former always resistant to the notion of having a trial so as to -almost- appease public demand rather than acting independently upon what the evidence and the medical/psychiatric appraisals are telling us. Also call me naive but I retain more faith in jurors than to view convictions in such a case as almost a foregone conclusion. And as Joshua says the same disposal would have ensued whether on a verdict of murder or manslaughter.
Swallowing hard with so many legal luminaries around, I dare to propose a radically different approach. There can often surely be an invisible dividing line between the former and the latter verdict on the evidence and the option selected either by the CPS or by jurors in their verdict in a highly charged case such as this would have little or nothing to do with any assessment of harm or blameworthiness. Why not a law focused on unlawful homicide rather than allowing the current lack of clarity to prevail with judges trusted, with the aid of sentencing guidelines, to impose the just sentence calibrated as with sentencing practice in general?
As to PR for the judiciary, there is certainly a case for that but in a measured manner. The trouble quite often is that when explanations are these days forthcoming they are couched in language familiar to us lawyers but troublesome and seen as divisive by the public at large. More work to be done there. As to the CPS taking the victims and victims’ families with them I fear that there seems indeed to have been a failure here but then a revisiting in retrospect is always a fine thing perhaps taking account insufficiently what may have been a fraught and time constrained exercise.
Finally I do hope no one is offended by any elements of this posting and in particular I would be mortified should Joshua, David or Alisdair have been in any way affronted. In no way was I seeking to create contention just for the sake of it; I am just a concerned, wizened and retired criminal defence hack.
Surely, we are looking at probabilities here. No one can say for certain ( ie “beyond reasonable doubt”) what was in the mind of the defendant at the time of his actions. Given the nature of the actions and the manner of and how the actions played out there was plenty of scope for the whole scenario to be be examined in public, in a trial before a jury, if the defence of manslaughter was put forward and not accepted by the prosecution. I would hazard a guess that the CPS lost its nerve and didn’t want to risk the loss of a conviction in such a high profile case and took the safe/easy route out. Playing safe and hide is justice denied.