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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Allitt, Re [2007] EWHC 2845 (QB) (06 December 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/2845.html Cite as: [2007] EWHC 2845 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		CaseNo:2004/1058/MTS Royal Courts of Justice Strand, London, WC2A 2LL
		06/12/2007

Stanley Burnton J :

Introduction

1. In May 1993, Beverley Allitt, a State Enrolled Nurse then aged 31, was found guilty of the murder of four young children, of the attempted murder of a further 3 children, and of causing grievous bodily harm with intent on a further 6 children. All of the victims had been in her care in the paediatric ward of the Grantham and Kesteven General Hospital. She was acquitted of charges relating to a further 2 children. She was sentenced to 13 concurrent terms of life imprisonment on the charges of which she had been found guilty.
2. In 1993, in cases of murder, for which a sentence of life imprisonment was mandatory, it was the Home Secretary who determined the minimum period to be served by the offender before he or she became eligible for release on licence. That period represented the punishment appropriate to the offences and the offender: the period of detention "necessary to meet the requirements of retribution and general deterrence". The question when, if at all, the detention of the offender ceased to be necessary in order to protect the public from risk was a different question, to be considered at and after the expiration of the minimum period. Based on what he had learnt during the course of the trial, the trial judge would recommend a minimum period. His recommendation would be considered by the Lord Chief Justice, who would pass the trial judge's recommendation and his own comments to the Home Secretary, who would then normally set the minimum period.
3. In this case, the trial judge, Latham J (as he then was) was of the view that "the length of detention necessary to meet the requirements of retribution and general deterrence" was 30 years. The Lord Chief Justice, Lord Taylor, agreed. However, the Home Secretary did not then determine a minimum period, and no Home Secretary has done so since, and so none was notified to Ms Allitt.
4. In such a case, paragraphs 5 and 6 of Schedule 22 to the Criminal Justice Act 2003 require the Home Secretary to refer the prisoner's case to the High Court for the making by the Court of an order under section 269(2) or (4) of that Act: i.e. an order determining whether the prisoner is to serve a whole life sentence (in which case irrespective of risk he or she will never be released from detention) or is to serve a minimum period after which, if the assessment of risk permits, he or she may be released on licence.
5. I have received and carefully considered the Representations on behalf of Miss Allitt submitted by William Harbage QC, together with the documents appended to them. As is usual, the Home Secretary has not submitted any representations. According to the judgment of the Court of Appeal in Hammond [2004] EWHC (Admin) 2753, I have the power to require an oral hearing. Mr Harbage has expressly not sought an oral hearing.
6. This is my judgment on the reference made by the Home Secretary of the case of Beverley Allitt.

The facts of the offences

7. As mentioned above, Beverley Allitt was a nurse on the paediatric ward of Grantham and Kesteven General Hospital. During an 8-week period in early 1991 she killed, attempted to kill or seriously harm 13 children in her care on the ward. The evidence at her trial suggested that she suffocated some of her victims, and injected air or drugs into others.
8. I have set out the facts relating to the individual victims, taken from the trial Judge's Report to the Home Secretary, in the Appendix to this judgment.
9. The impact of these offences does not require to be described, and could not be exaggerated. Young lives were cut short at their inception. Patrick Elstone's life and that of Katie Phillips have been grievously damaged. Bradley Gibson's injuries, though less grievous, were nonetheless serious and permanent and substantially affect the quality of his life. The offences to the children took place in what should have been, and what their families must have believed to be, a place of safety; the offender made it into a place of extreme danger. I have before me only one victim impact statement, which I have read and could not but be moved by, but the effect of these offences on all the families, of those bereaved and those whose child was injured or damaged, must have been terrible. Each of the offences is an immense personal tragedy for the family concerned. They received a life sentence from which there is no remission, no release on licence.

The medical evidence before the trial judge

10. Ms Allitt pleaded not guilty to all the charges against her. Since she denied her guilt, it was impracticable for the special defence of diminished responsibility to be put forward on her behalf. However, once she had been found guilty as stated in paragraph 1 above, her counsel, James Hunt QC (as he then was) called medical evidence, consisting of the testimony of Professor Roy Meadow and of Dr James Higgins. By that date (28 May 1993) she had been transferred to Rampton Special Hospital.
11. Professor Meadow was an eminent consultant paediatrician, but not, it should be noted, a psychiatrist. He had been called as an expert witness by the prosecution during the trial. He had made a study of what has been called Munchausen's Syndrome by Proxy. He described Munchausen's Syndrome simpliciter as follows:

"It is a term … that may be applied to persons who invent or cause illness for themselves, so causing themselves, as an individual, to be treated needlessly by doctors and to have treatments, investigations and, indeed, operations for that false illness.

…It is thought that they may (sic) have a defects of their personality that causes them to act in this way … it is not thought that they are masochists who relish personal pain, or having the painful side of hospital investigations or treatments, but they do seem to relish the attention and care and some of the contacts for them that are the end result of their false illness."

12. Asked what Munchausen's Syndrome by Proxy was, he said:

"The term is really a form of child abuse when the child has a false illness, invented and caused by another person and that is, of course, always an adult."

13. Professor Meadow referred to Ms Allitt's medical records, and concluded that she had an extensive history of self harm, and was satisfied that "(Munchausen's Syndrome) is a term that can be applied to Beverley Allitt". He similarly thought that her index offences were "a most extreme case" of Munchausen's Syndrome by Proxy. Asked about her intention to cause suffering, he said:

"Q. She is portrayed in the media as evil and out to cause suffering. Is that the way you see her, or such a case, Professor?

A. What happened was extremely evil and all the children involved suffered very greatly, as did their families, and, indeed, in a variety of ways, all those concerned with these awful events. So, for the children it was evil and they suffered.

My experience of mothers who have abused their children in this way is that the great majority do not set out with the purpose of causing their children suffering and harm. In a very strange way, they are able to shut out their minds to the suffering their child is incurring. It is as if the benefit they get personally from their actions completely outweighs and is separate from what the rest of us observe, which is terrible harm and suffering for the child. It is, my Lord, a little bit akin to the way that adults with Munchausen behave. They are causing themselves pain and suffering, and yet, for some strange reason, it does not seem to register or stop them from going on hurting or harming themselves. "

14. Professor Meadow agreed that Ms Allitt was "extraordinarily mentally disturbed". He said that she had a severe personality disorder that could not be cured, but which treatment might be able to ameliorate.
15. Dr Higgins considered that Ms Allitt suffered from a personality disorder, but did not meet the treatability criteria for transfer from a prison to a hospital; however, if she was not transferred, he thought she would cause such harm to herself as would lead her to be transferred. He said:

"We have, in Miss Allitt, a very seriously disordered person, who obviously has reasons of her own, very bizarre ones, for harming herself and for killing the children. There are also other aspects to her personality, which my Lord alluded to (her manipulativeness), and I think it is clear that Miss Allitt, quite understandably wishes to remain in a hospital rather than go to prison, and, of course, many of her other factitious behaviours were to get into a hospital setting and be a patient. But that is not simply just to say that she is a manipulative person. I think it is part of her disorder. And this very damaged lady will, I suspect, if she goes to prison, act in such a way to demand her return to hospital, and the question I asked myself was "Should we just accede to the inevitable and do it now, in the interests of Miss Allitt's health? Which I, being a doctor, am as interested in, as other aspects, of whether one should pursue this treatability issue. Now, I was quite firm in my view that on the information I had when I wrote my report that the prospect of treatment was very remote, the prospect of response. There had been some sort of movement that requires to be interpreted and further considered whether it is of value and whether it is genuine. So, had I had the information that I now have, it shifts the balance slightly for me but not sufficiently."

16. Dr Higgins agreed that she presented a real danger to others, and that "the likelihood of her changing to such a degree as to alter her dangerousness is quite remote".
17. On 5 June 1993 the Home Secretary gave a direction under section 47 of the Mental Health Act 1983 transferring Ms Allitt from HMP Holloway to Rampton Hospital and directing that she be subject to the special restrictions set out in section 49 of that Act for a period without limit of time. The mental disorder recorded in the authority for detention was psychopathic disorder.

The trial Judge's and the Lord Chief Justice's recommendations

18. In his report dated 15 June 1993 to the Home Secretary, Latham J summarised the facts of the offences and referred to the evidence of Professor Meadow and Dr Higgins. He accepted that Ms Allitt suffered from a serious personality disorder "akin to that which has been described as Munchausen Syndrome by Proxy". He said:

"One feature that was absent from the evidence is any indication that the defendant obtained pleasure from harming the children. Professor Meadow described what happened as extremely evil, but said that those suffering from this sort of personality disorder seemed to be able to shut out of their minds the suffering which they are causing to the child. To that extent this sets this defendant apart from sadistic child killers."

He concluded that the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offences was 30 years.

19. The Lord Chief Justice's comments, dated 24 June 1993, were as follows:

"In this most exceptional case, I agree with the recommendation of 30 years proposed by the trial judge. Allitt will then be 54. Serious consideration will need to be given to the risk factor even then."

The Home Secretary's decision

20. Latham J's report was provided to Ms Allitt's solicitors. Representations on her behalf, by her trial counsel, Mr Hunt QC, were submitted to the Home Secretary on 1 April 1997. Mr Hunt explained that since the defence has been one of denial, it had not been practically possible to present the defence of diminished responsibility. The representations included the following statement:

"If (her abnormality of mind) had been an issue which could have been put forward at her trial it is almost certain that the prosecution would have accepted pleas of Guilty to Manslaughter. I can confirm that I discussed this with John Goldring QC, who prosecuted and at an early stage he indicated to me that although he would have to consult with the CPS, his firm view was that such pleas would have been acceptable on the grounds of diminished responsibility. The jury's findings … are not inconsistent with the behaviour of a person suffering from severe Munchausen Syndrome."

21. Mr Hunt submitted that Ms Allitt should be treated as a "technical lifer", that is someone who has been found guilty of murder, who was suffering from an abnormality of mind when he or she committed the offence which would have justified a finding of diminished responsibility, but who did not put forward that defence at trial. He concluded:

"The Secretary of State should exercise his discretion not to follow the recommendations made by the trial judge and the Lord Chief Justice. Her condition will continue to be more open. It is appropriate that Miss Allitt should have technical lifer status conferred upon her to allow her to be treated in all respects as a patient and, therefore, no tariff should be set in her case. That is an option which was not open to the judge but which is open to the Secretary of State."

22. Towards the end of 1993, Ms Allitt had admitted responsibility for 9 of the matters which had been the basis of the charges of which she had been found guilty. In a letter dated 8 September 1997 (i.e., sent when the Home Secretary was considering Mr Hunt's representations) her solicitors stated that she had admitted to the remaining four matters.
23. The Secretary of State took a considerable time to consider these representations. In a letter dated 28 October 1998 he rejected the contention that Ms Allitt should be treated as a technical lifer. The letter stated:

"In a minority of cases, however, the index offence was committed while the offender was mentally disordered, but for good reasons the court was unable to make a hospital order and a life sentence was imposed. Such patients are, following the recommendation of the trial judge and the Lord Chief Justice, regarded as technical lifers. In Ms Allitt's case, the court had before it a great amount of information about her motivation, mental health and personality disorder. The reports were clear that she was suffering from a personality disorder of Munchhausen's Syndrome and Munchhausen's Syndrome by Proxy. The transfer of Ms Allitt from prison to hospital following her sentences was appropriate in order to treat a mental illness which arose after sentence whilst she was in hospital which was apparent during a period when she went into starvation and gave all the impressions of attempting suicide.

Recent medical reports from Rampton Hospital where she is now detained indicate that the diagnoses of Munchhausen's Syndrome and Munchhausen's Syndrome by Proxy were correct. There may be other underlying personality disorders which have yet to be identified. The overarching mental illness which led to her transfer has been successfully treated and she is currently considered to be mentally stable although she exhibits a number of behaviour patterns which are untreated."

24. Mr Hunt responded to the Secretary of State's decision in further representations dated 22 March 1999. He referred to the evidence of Professor Meadow and Dr Higgins that Ms Allitt had been suffering from a severe personality disorder when she had committed her offences, and contended that the Home Secretary's conclusion that she was not suffering from that disorder when she committed the offences was erroneous. He conceded that the trial judge could not have made a hospital order under section 37 of the Mental Health Act 1983, since the medical evidence did not show that her disorder was capable of treatment that could alleviate or prevent a deterioration of her condition.
25. The Secretary of State did not change his decision not to treat Ms Allitt as a technical lifer. As mentioned above he did not, however, fix a minimum period of imprisonment (i.e. her tariff), and no Home Secretary has done so.

Medical evidence since the trial

26. After her conviction and sentence, Ms Allitt was initially detained in prison. She deteriorated rapidly and following a direction by the Home Secretary dated 5 June 1993 under sections 47 and 49 of the Mental Health Act 1983 she was transferred to Rampton Hospital with a classification of psychopathic disorder. In his annual non-statutory report dated 24 May 1995, Dr Keitch, the consultant forensic psychiatrist who was her then Responsible Medical Officer, stated:

"Attempts at treatment are difficult as she is not fully co-operative with therapeutic interventions. She appears to gain a degree of personal gratification from "control" often using her body as a means of exercising such control. Current treatment initiatives are primarily designed to minimise any further deterioration in her condition and, bearing in mind the severe nature of her personality disorder, the amelioration of the underlying condition is likely to be difficult if not impossible.

In my opinion Beverly Gail Allitt continues to suffer from Psychopathic Disorder and requires treatment in hospital to prevent deterioration. In the event of her return to prison I have no doubt that she would immediately stop eating and drinking which would then precipitate deterioration in both her physical and mental health. She is therefore not suitable for either transfer or discharge at this time.

She is in receipt of anti-psychotic medication for anxiety relief, anti-depressant medication for depression and Carbamazepine as an adjunct therapy. She accepts medication willingly."

27. In his report under section 49(3) of the 1983 Act dated 7 June 1996, her then RMO, Dr Walsh, opined that she had made some progress, but continued to suffer from a severe personality disorder, the core of which was unlikely to remit with medical treatment. Dr Walsh's report dated 10 June 1997 stated that the clinical team were increasingly of the view that return to prison might be in her best interests. According to the report, "More and more we realise that Ms Allitt's history of self-injury extends right back to her childhood …" The RMO's annual reports for 1998 and 1999 did not suggest that the original diagnosis was mistaken.
28. Dr Hamilton, who had become Ms Allitt's RMO on 1 January 1998, made a statement dated 14 March 2000 for the Mental Health Review Tribunal. He concluded:

"In summary, it can be recognised that Ms Allitt suffers from a severe personality disorder which has contributed in a major way to her index offences which have resulted in massive national publicity. There is clear evidence that she is beginning to mature and come to terms with the totality of her position and to make some realistic plans for life. I am not therefore in a position to make any recommendation to the Tribunal about change in her Mental Health Act status."

29. Dr Hamilton provided a full report to the Home Office dated 3 January 2002. It referred to the progress she had made at Rampton. Importantly, he addressed the question of her mental state when she committed her offences:

"There is an important and hitherto unanswered question which is to do with her application for technical lifer status. As I understand it, this question is that [in the light of the present knowledge], would it be possible to make a recommendation to the Court at the time of her original conviction and sentencing which would differ in any way from the recommendations already provided? I have given this matter much thought and my conclusion at present is that it is not possible for me to state with confidence or authority that Ms Allitt was under a significant disability at the time of each of the 13 occasions for which she was convicted of murder or attempted murder. To be able to do so implies or would require much more detailed knowledge of each event than I have at present and for this to be set in a context of her emotional and personality functioning at that precise point in time. I believe that the reasons for not reaching this stage as yet have been made explicit already. The situation still obtains therefore that I would be unable to recommend to the Court that an appropriate disposal of this case under Section 37 of the Mental Health Act would be possible but with increasing knowledge of this patient either I myself or a successor may be in a different position in the future."

30. In April 2003 Dr Travers took over from Dr Hamilton as Ms Allitt's RMO. In his report to the Mental Health Review Tribunal dated 18 August 2003, he stated:

"Ms Allitt's complex clinical presentation amounts to psychopathic disorder within the meaning of the (Mental Health) Act.

The nature of Ms Allitt's psychopathic disorder is that of a longstanding severe personality disorder compounded by multiple complex physical and psychological difficulties which make it appropriate for her to be detained in a hospital for medical treatment."

Dr Travers's subsequent reports did not differ from this diagnosis.

31. In September 2004, Ms Allitt's solicitors instructed Professor Bob Peckitt, a consultant forensic psychiatrist, to provide a report for submission to the High Court for the purposes of her murder tariff. In his very full and convincing report, Professor Peckitt referred to Professor Meadow's evidence and commented:

"…I would most respectfully draw to the Court's attention that whilst Professor Sir Roy Meadow was in 1993 without a doubt the leading National expert of the condition of Munchausen Syndrome by Proxy, insofar he had contributed to the identification and detection of deliberate or factitious harm as it affected children, he was not a trained or qualified Psychiatrist let alone a Forensic Psychiatrist and his opinion was based very largely upon the examination of case notes, not upon the direct clinical evidence of examining Ms Allitt. His estimation of Ms Allitt as having severe disorder of personality was of course completely congruent with the psychiatric evidence and examination, as was his estimation that she suffered from a factitious disorder. However, Munchausen Syndrome and Munchausen Syndrome by Proxy are two wholly different definitions. What Professor Sir Roy Meadow failed to grasp was that a person whose subsequent disclosures revealed a much more extended pattern of sadistic assaults on children starting in childhood and extending beyond the offences for which Ms Allitt was arrested and bailed to the attempted destruction by poison of a dog and the poisoning of an adult who is apparently offering shelter under bail conditions for Ms Allitt are completely different. Subsequent psychometric measurements have in fact confirmed the clinical suspicion that Ms Allitt has indeed a significantly sadistic element to her personality and I most respectfully submit that it appears to me that in the search for explanation for these terrible crimes the Courts were persuaded to accept that the prominence of Ms Allitt's violence to children was rooted in a condition called Munchausen Syndrome by Proxy rather than being a result of her sadistic psychopathic personality and that that personality was expressed in violence to children, to adults, sadistic acts to her peers and acts of self-harm. It appears to me that the Court should have been advised to have separated the psychiatric evidence relating to Ms Allitt's condition, which was tentative in the circumstances of her detention, but where the indications clearly pointing (sic) towards a manipulative and avoidant person."

…

Subsequent psychometric measurements have in fact confirmed the clinical suspicion that Ms Allitt has indeed a significantly sadistic element to her personality. …. In this case Ms Allitt's personality disorder included sadistic, narcissistic and borderline features. Her personality was expressed in violence to children, to adults, sadistic acts to her peers and acts of self harm. It appears to me that the court should have been advised that Professor Meadow's opinions of Munchausen by Proxy and Ms Allitt's mental state should have been quite separate and subject to the appropriates tests. This is particularly so when the circumstances of her detention clearly pointed towards her being a manipulative and avoidant person.

This approach should clarify the clinical situation for the court considerably. Ms Allitt is motivated by dent of her personality to use both self harm and covert or surreptitious tactics to manipulate her situation to her best advantage. She perceives her best advantage to be to remain in hospital in a caring environment where not being subject to any disciplinary regime she is able to control her life and her fellow patients in a limited sense. She is able to maintain herself in hospital by maintaining a chronic level of self harm and contaminatory self mutilation, finely balanced to the point where continued treatment in a hospital is necessary. However Ms Allitt resorts to these tactics because of her underlying severe personality disorder which in itself can warrant hospital treatment."

32. His recommendation was as follows:

"My recommended course of management for Ms Allitt is that her clinical team should reopen negotiations with the prison service with a view to establishing the necessary professional liaison with the national offender management service and to begin to identify some rehabilitative and restorative justice targets for Ms Allitt to undertake, initially in hospital in partnership with the prison service, with the defined end point of assisting Ms Allitt to leave hospital if possible to return to an appropriate long term lifer service. I emphasise that this process may take a number of years to achieve given the psychopathology of the patient and the length of time that she has already spent in hospital. However I think that it is inescapable that unless Ms Allitt is going to stagnate, spend her life and die in hospital, opportunities for her rehabilitation must be opened up.

It is not my intention to suggest that Ms Allitt can benefit from rehabilitative work in a conventional utilitarian sense. That is to say I do not believe that undergoing offence related work will automatically review Ms Allitt's risk and make her fit for parole or release in the future. It is my opinion that Ms Allitt will require care and supervision for her own sake and for the protection of others indefinitely.

…

The length of Ms Allitt's tariff is of course entirely a matter for the courts and my only comment can be that in my clinical experience whole life tariffs are exceptionally destructive to the morale of any individual no matter what their crime."

33. He concluded:

"It is clearly my intention to signal my complete respect for the court's duty to determine all aspects of the sentence particularly in the elements of retribution and deterrence. My aim in this report has been to highlight how potentially destructive the absence of rehabilitative and restorative justice goals might be both to the mental health of the detained person, and the practical difficulties that this poses to those who have to care for her in hospital or in prison. The courts alone can signal and determine that such activity should proceed in this case such are the sensitivities of the issues.

It is with the utmost deference to the court that I would submit that an indication that Ms Allitt is expected to participate in rehabilitative and restorative justice programmes as a means of addressing in part her offending behaviour without such activities being linked directly to the promise of parole or earlier release is a central consideration in preventing her from being further enshrined as an icon of hatred in the public mind. Furthermore should Ms Allitt genuinely apply herself to such rehabilitative and restorative programmes, she should be afforded the limited measure of privacy necessary to ensure that such activities could be completed."

34. Her RMO, by now Dr Elcock, provided a short update to Professor Peckitt's report on 22 December 2004, in which she referred to further instances of self harm by Ms Allitt.
35. The most recent medical report before me is the comprehensive informative report of Dr Elcock dated 6 March 2007, prepared for the hearing before the Mental Health Review Tribunal that took place on 16 May 2007. Dr Elcock summarised the offender's history. She reported her diagnosis as follows:

"In my opinion and taking into account the consistent views given by a number of professionals including previous RMOs, I believe Ms Allitt fulfils the criteria for:

(ICD 10)	Paranoid Personality Disorder
	Dissocial Personality Disorder
	Emotionally Unstable
	(Impulsive) Personality Disorder
	Anxious Avoidant Personality Disorder
(DSMIV)	Sadistic Personality Disorder
	F68.0 Elaboration of Physical Symptoms for Psychological Reasons.
	F68.1 Factitious Disorder.

36. Dr Elcock concluded that this "constellation of Personality Disorders for which Ms Allitt fulfils the diagnostic criteria … fulfil the criteria for Psychopathic Disorder within the meaning of the Mental Health Act 1983". It continued to be appropriate to detain her in hospital for ongoing treatment. "Ms Allitt is still deemed a high risk to others, notably children and this area has of yet not been fully explored and understood, mainly because Ms Allitt's mental state has to date not been felt able to withstand these discussions." Dr Elcock referred to the treatment Ms Allitt had received, and stated that she had derived benefit from it, demonstrated in a reduction in self-harm frequency, an increased openness and willingness to form therapeutic relationships with staff and a reduced abuse of medication over time.
37. The Mental Health Review Tribunal accepted Dr Elcock's undisputed evidence, and was "satisfied Ms Allitt suffers from psychopathic disorder of a nature warranting her continued detention in hospital for the protection of both herself and others".

The statutory provisions

38. As mentioned above, this application comes before the Court under paragraphs 5 to 8 of Schedule 22 to the Criminal Justice Act 2003. So far as relevant, they are as follows:

5. Paragraph 6 applies in relation to any existing prisoner who, in respect of any mandatory life sentence, has not before the commencement date been notified as mentioned in paragraph 2(a) or (b) by the Secretary of State.

6. The Secretary of State must refer the prisoner's case to the High Court for the making by the High Court of an order under subsection (2) or (4) of section 269 in relation to the mandatory life sentence.

7. In considering under subsection (3) or (4) of section 269 the seriousness of an offence (or the combination of an offence and one or more offences associated with it) in a case referred to the High Court under paragraph 6, the High Court must have regard not only to the matters mentioned in subsection (5) of that section but also to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.

8. In dealing with a reference under paragraph 6, the High Court—

(a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a), and

(b) may not make an order under subsection (4) of section 269 unless the court is of the opinion that, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to give the prisoner a notification falling within paragraph 2(b).

39. Section 269, so far as relevant, is as follows:

(1) …

(2) The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as "the early release provisions") are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3) The part of his sentence is to be such as the court considers appropriate taking into account—

(a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and

(b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.

(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.

(5) In considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to—

(a) the general principles set out in Schedule 21, and

(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21.

Representations on behalf of the offender

40. Mr Harbage's primary submission is that it would be wrong to fix a minimum sentence in excess of 30 years. He submitted that this would be in breach of Article 7 of the European Convention on Human Rights, which prohibits the imposition of a heavier penalty than that applicable at the time when the criminal offence was committed. He also submitted that the determination of a tariff exceeding 30 years would be in breach of paragraph 8(a) of Schedule 22 if it were a determinate period and would be in breach of paragraph 8(b) if it were a whole life determination, on the basis that the Home Secretary, if he had determined a tariff, would have done so at a shorter period than that recommended by the trial judge and the Lord Chief Justice, on the basis, I think, that the Home Secretary had been deterred from fixing such a tariff by the political opprobrium he would have incurred. Lastly, he submitted that it would be "inhumane and contrary to the rules of natural justice to impose (a period greater than 30 years) as late as 12 ½ years after she was first sentenced, and more than 10 years after she was first informed of the recommendation of the trial judge and the Lord Chief Justice".
41. As a result of my consideration of the original representations of Mr Harbage and the medical evidence before me, Ms Allitt's solicitors were informed that my provisional view was to prefer the evidence in the psychiatric report of Professor Peckitt to that given by Professor Meadow to Latham J, and that my decision should reflect the evidence in Professor Peckitt's report. As Mr Harbage rightly appreciated, I was concerned by Dr Peckitt's opinion that, contrary to the view of Professor Meadow, there had been an element of sadism in the commission of the index offences, a matter of which Latham J had of course been unaware. I had not then seen Dr Elcock's report of 6 March 2007, which, as has been seen, includes Sadistic Personality Disorder among the conditions applicable to the offender. In his further representations, Mr Harbage informed me, and I accept, that Dr Elcock has confirmed that her reference to this condition was based on Professor Peckitt's observations, and presumably did not represent her own view. Mr Harbage submitted that Professor Peckitt's views "stand in isolation", and that I should not reject Professor Meadow's opinion because his views on another subject have been subsequently discredited.

Discussion

42. It is important to emphasise that it is not the function of the Court on this application to assess whether it will ever be safe for Ms Allitt to be released from custody. That responsibility will be borne by a Mental Health Review Tribunal and the Parole Board. The function of the Court is to assess the seriousness of her offences with a view to deciding what is the minimum period she must serve by way of retribution and deterrence before the Parole Board even considers whether she might be released on licence.
43. It follows from the statutory provisions that the first task for the Court is to assess the seriousness of Ms Allitt's offences, having regard to the general principles set out in Schedule 21 and any applicable guidelines and the judicial recommendations to which I have referred. The provisional conclusion of the Court under those provisions must then be subjected to the limits imposed by paragraph 8 of Schedule 22.
44. There can be no question as to the seriousness of the offences. These were multiple murders and attempted murders, of young children whose lives were snuffed out almost before they had begun. It is otiose to state that the offences constituted a terrible breach of trust on the part of Ms Allitt (an aggravating factor under paragraph 10(d) of Schedule 21), and that the victims were particularly vulnerable by reason of their age (paragraph 10(b)). By her actions, what should have been a place of safety for its patients became not just a place of danger, but if not a killing field something close to it. Even leaving aside the question whether there was sadistic motivation, as Professor Peckitt considered there to be, the seriousness of these offences is such that, in the absence of any mitigating factor, a whole life order would indubitably be appropriate.
45. There is only one mitigating factor, namely the mental health of the offender: see paragraph 11(c) of Schedule 21. So far as that is concerned, notwithstanding Mr Harbage's submissions, I regard the evidence of Professor Peckitt as more cogent than that of Professor Meadow, largely for the reasons given by the former, and in particular Professor Meadow's lack of any psychiatric qualification, and not for any reason connected with his subsequent appearance before the General Medical Council. To give a pattern of criminal behaviour a name, and I refer to Munchausen's by Proxy Syndrome, does not of itself lessen the responsibility of the offender. One could say that a multiple rapist exhibits multiple rape syndrome, but that would not of itself lessen his criminal responsibility and should not of itself lead to a lesser sentence. Furthermore, Latham J's recommendation and its acceptance by the Lord Chief Justice were influenced by Professor Meadow's view that she had not obtained pleasure from harming the children. Professor Peckitt has cast serious doubt on that proposition: indeed, he considers it to be wrong. Although, as Mr Harbage pointed out, he was her RMO for only a year, that was clearly long enough for him to arrive at the opinions expressed in his report. I accept the correctness of his view.
46. Mr Harbage asks me to prefer the opinion of Dr Hamilton, who was Ms Allitt's RMO for a considerable period of time, to that of Professor Peckitt. In his report of 3 January 2002 Dr Hamilton stated that he was unable to say whether Ms Allitt was suffering from "such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired (her) mental responsibility for (her) acts" (see section 2(1) of the Homicide Act 1957). But I do not understand him to have questioned that she was suffering from an abnormality of mind when she committed the offences: her psychopathology was of long-standing. It was, I think, the question whether her responsibility was substantially (or as he put it "significantly") diminished that exercised him. Dr Hamilton does not regard Munchausen by proxy as a mental disorder. He said:

"My own view is that (Munchausen by proxy) is not a mental disorder in its own right but is a complex of behaviours, habits and perhaps attitudes which springs both from a seriously flawed personality structure, amounting to personality disorder, and adverse environmental events."

47. Having considered all of the medical evidence, I am satisfied that the offender was suffering from an abnormality of mind when she committed the index offences. There is nothing to suggest that the "constellation of Personality Disorders" to which Dr Elcock refers arose after the commission of the index offences, and good reason to accept that, as Dr Travers opined, it is long-standing.
48. Accordingly, it would be right to depart from the whole life order that would otherwise be appropriate.
49. Since the Home Secretary, having had a lengthy opportunity to do so, did not determine that Ms Allitt should have a whole-life tariff, for the purposes of paragraph 8(b) of Schedule 22 I find it impossible to arrive at the opinion that he would have been likely to do so. Accordingly, it would not be appropriate to make an order under section 269(4) of the 2003 Act.
50. I must also consider the effect of paragraph 8(a), which precludes the Court from determining a tariff greater than that which the Secretary of State would be likely to have notified under his practice before December 2002. In the Practice Direction (Crime: Mandatory Life Sentences [2004] 1 WLR 1874, Lord Woolf LCJ referred to the fact that at that time the Secretary of State normally accepted the recommendation of the trial judge and the Lord Chief Justice. He said, at paragraph IV.49.21:

"The only area where the Secretary of State tended to differ from the guidance set out in Lord Bingham of Cornhill CJ's letter or practice direction Practice Statement (Juveniles: Murder Tariff) [2000] 1 WLR 1655 of 27 July 2000 was in relation to the gravest murders. In some cases involving multiple or serial murder, where there are aggravating circumstances and no compelling mitigating factors, the Secretary of State has set minimum terms at a level considerably higher than judicial recommendations. In such cases, the minimum terms have generally fallen between 30 years and whole life."

51. There is, it seems to me, illogicality in seeking to determine what minimum term the Home Secretary is likely to have determined under his practice followed before December 2002 in a case in which he had ample opportunity to notify a minimum term and did not do so. In addition, the basis of the exercise is not free from doubt: should the Court assume that the Home Secretary had the knowledge now available or that available when he could have determined a tariff but did not do so?
52. In my judgment, if I have to assume that the Home Secretary would have made a determination, the present case is one in which he is likely to have set the minimum term at a level higher than the judicial recommendation, even ignoring the opinion of Professor Peckitt. These were murders of the gravest nature, and the mitigating factor of mental health would have been accommodated by not determining a whole life tariff. I consider that if the Home Secretary had made a determination, it would have been one of 40 years.
53. I reject the submission made on behalf of Ms Allitt that to determine a tariff in excess of 30 years would involve an infringement of her rights under Article 7. The penalty applicable at the time of her offences was imprisonment for life: see Regina (Uttley) v. Secretary of State for the Home Department [2004] UKHL 38.
54. I also reject the submission that I should take account of the offender's progress since the offences were committed. The minimum period reflects the seriousness of the crime, and it only exceptional progress since the offence that can lead to a reduction. It is not suggested that there has been such progress, and in any event the evidence does not justify a finding of such progress.
55. I have to say that I regard the determination of the minimum period in a case such as the present (and fortunately cases as extreme as this are rare) as a very difficult task. Once it is accepted that the offender was suffering from mental disorder, difficult ethical and indeed philosophical questions arise as to the degree to which responsibility for the offences in question should be regarded as diminished. I have found that there is an element of sadism in Ms Allitt's conduct and her offending. But that sadism is itself, if not the result, certainly a manifestation of her mental disorder, and it would be unduly simplistic to treat it in the same way as one would if the offender were mentally well.
56. Ultimately, however, I accept the submission made on behalf of Ms Allitt that it would be wrong to increase the recommendation of the experienced trial judge, who heard the evidence in the case and was in the best position to assess the seriousness of her offences, and that of the eminent Lord Chief Justice, to which I am bound to have regard, so long after the event, in circumstances in which the Home Secretary did not see fit to depart from it, at least unless there were a cogent reason for so doing. I do not consider that the information before me is sufficient to justify increasing the minimum period beyond the trial Judge's and the Lord Chief Justice's recommendation.
57. I shall therefore order that the early release provisions referred to in section 269 are to apply to her after she has served a period of 30 years less the period of her remand in custody before sentence, which was 1 year and 190 days. The minimum period is therefore 28 years and 175 days.

Appendix The facts of the individual offences.

58. Liam Taylor was born on the 29^th December 1990: he went into hospital on the 21^st February 1991 and was admitted to ward 4 (the paediatric ward) because of breathing difficulties. He was ill with pneumonia and septicaemia. He had a number of unexpected collapses at all of which the defendant was present alone. He finally died on the 23^rd February 1991 and was found on post mortem to have a massive infarct of the heart muscle. This was undoubtedly caused by a serious circulatory collapse. The prosecution evidence was that there could be no natural explanation for this happening, but that it was impossible to determine the precise cause of death, that is whether it was the result of suffocation or the injection of some drug.
59. Timothy Hardwick was a severely disabled child with spastic quadriplegia, severe mental retardation, epilepsy, and total blindness. He was born on the 25^th November 1980. He was admitted to ward 4 on the 5^th March 1991 as a result of having had a series of epileptic attacks which took some time to control. He was recovering from these attacks during the afternoon, when he unexpectedly collapsed and died when alone with the defendant. The prosecution evidence was that he was probably suffocated, although the precise mechanism which caused his death will never be known for certain.
60. Kayley Desmond was born on the 2^nd January 1990 with a cleft palate and thereafter very substantial problems with feeding as a result of which she was regularly a patient on ward 4. She was admitted on the 3^rd March 1991 because she was chesty, and was undoubtedly unwell. In the early hours of the morning of the 10^th March 1991, she collapsed and stopped breathing on at least two occasions and had to be resuscitated. She was then transferred to Nottingham where nothing was found which could have caused her to collapse, except for finding fluid on the lungs on X-ray which indicated that she was probably suffocated. The defendant was alone with her on each occasion she collapsed, and on each occasion called for help from other nurses. This may well be why the jury found her not guilty of attempted murder. The child was also found on X-ray to have a large amount of air lying within the body tissue in the region of the armpit which could only have been the result of someone deliberately injecting air. She has made a full recovery from these events.
61. Paul Crampton was born on the 30^th October 1990. He was admitted to ward 4 on the 20^th March 1991 with a chest infection. On the 23^rd March 1991 he became cold and clammy showing obvious signs of hypoglycaemia. This was corrected. On the next day, the 24^th March 1991, he again became lethargic, clammy and cold, again as a result of hypoglycaemia: it took many hours to get his blood system under control and was described by the consultant as a very ill baby. On the 28^th March 1981 he once again became hypoglycaemic: as a result he was transferred to Nottingham. Before he was transferred a blood sample was taken, which when analysed showed a huge amount of insulin in his blood in circumstances which made it plain that he had been injected with insulin, for which there was no clinical justification. He was stabilised at Nottingham and made a full recovery. The jury convicted of attempted murder.
62. Bradley Gibson was born on the 17^th August 1975. On the 29^th March 1991 he was admitted to ward 4 with pneumonia. The illness itself was not, according to the consultant who saw him, life threatening and it was expected that he would be home in two to three days. In the early hours of the 30^th March 1991, he complained of pain in the I.V. site through which he was being supplied antibiotics. The defendant was with him. He collapsed and stopped breathing. He suffered a cardiac arrest. It took thirty-two minutes to restart his heart. He was transferred to Nottingham. The doctors there were unable to explain what had happened unless there had been mistake in relation to drug administration. He had survived, but not intact. He has some damage to his spinal chord resulting from lack of oxygen, probably during this episode. He limps, and has no control over his bladder. The probability is that he had been injected with some drug such as Salbutamol. The prosecution experts were clear that there could be no natural explanation for what happened. The jury convicted of attempted murder.
63. Yik (Henry) Chan was born on the 21^st February 1989. He was a healthy child, who on 28^th March 1991 fell from a first floor window into the patio at home. He was taken straight to hospital. On the 31^st March, he was much better, his mother left him for the first time to have supper with a friend. The defendant was with him. She called the nurse in charge to see him because he was crying: when the nurse got there she found that in fact he had stopped breathing, was very blue and his back was arched. He was promptly given oxygen and commenced breathing again. The defendant was again left with him and shouted "he's fitting again": he was found to be bluish and stiff, not breathing: he was resuscitated successfully and transferred to Nottingham. He recovered with no problems. An X-ray at Nottingham showed pulmonary oedema, indicating that he had been suffocated. He has suffered no permanent damage. The jury convicted of causing grievous bodily harm with intent, and acquitted of attempted murder.
64. Becky Phillips was a twin born on the 31^st November 1990. She had required medical attention on a number of occasions between then and her final admission on the 1^st of April 1991 with diarrhoea and vomiting. She was well enough to be discharged in the care of her parents on the afternoon of the 4^th April 1991. She gave her parents some cause for concern during the evening, but eventually settled after being seen by the General Practitioner at half past ten. At two forty-five on the morning of the 5^th of April, she was [grizzling] and was taken into her parent's bed: at three a.m. they realised that she had stopped breathing. She was found to be dead on arrival at hospital. A blood sample taken after death established that she had been injected with a very large amount of insulin for which there was no clinical justification. It is possible that she had also been infected with potassium.
65. Katie Phillips was Becky Phillip's twin. She was admitted to ward 4 as a purely precautionary measure as a result of Becky's death. In the afternoon of the 5^th April 1991, she collapsed while Allitt was with her: she was blue and had stopped breathing. A student nurse had heard a high pitched scream from Katie at about this time. She was resuscitated satisfactorily. X-rays taken that afternoon after he collapse showed that she had suffered recent fractures to her ribs: her collapse was consistent with her having been crushed and suffocated. On the 7^th April 1991, she was much better. Once again she was left with the defendant. Another nurse found her collapsed in the defendant's arms: she had stopped breathing. She was rushed to the treatment room and resuscitated. Again when the defendant was with her, she had a further collapse: she stopped breathing and her heart stopped beating. Her condition was so poor that the consultant who arrived to take charge of the resuscitation was concerned for her survival. Resuscitation was prolonged and difficult. She was transferred to Nottingham where resuscitation continued. Unfortunately she has suffered severe brain damage. There was no natural explanation for the collapses on the 7^th April, which were consistent, once again, with suffocation. There was a suggestion that she might have been injected with potassium as well. The jury convicted of attempted murder.
66. Michael Davidson was born on the 13^th May 1984. He was admitted to ward 4 on the 7^th April 1991 having been hit in the stomach with an air pellet: an operation was performed that night and he was taken to ward 4. He recovered satisfactorily from the operation. On the afternoon of the 9^th April 1991, he was due to have an injection. The injection itself was carried out by a Doctor Bradshaw: the defendant had been left by herself in the treatment room with the syringe after the doctor had drawn up the injection and whilst the doctor went to deal with another patient. When the doctor injected Michael Davidson, he suddenly stiffed up and went blue round the mouth and collapsed: he did not have a heart beat and had stopped breathing. The prosecution experts considered that there was no natural explanation: the injection must have been contaminated or adulterated in some way. Fortunately he suffered no permanent damage. The jury convicted the defendant by a majority of causing grievous bodily harm with intent.
67. Christopher Peasgood was born on the 17^th February 1991. He was admitted to Ward 4 on the 12 April 1991 with bronchitis. He was described as a "poorly baby". On 13^th April 1991, whilst the defendant was alone with him, the alarm monitoring his breath went off: the nurse who ran in to see what had happened described him as navy blue and not breathing. He was taken to the treatment room. He there recovered. Whilst in the treatment room, and whilst the defendant was again alone with him, he again collapsed: the defendant called out: the nurses who then went in found that he had stopped breathing and was blue. He was resuscitated again, and then taken to Nottingham. At Nottingham nothing was found which could explain the two collapses. Fortunately he has suffered no permanent damage. One of the prosecution experts considered that although the collapses were consistent with suffocation, the child was so ill that he could not exclude a natural cause. The jury found her guilty of causing grievous bodily harm with intent by a majority.
68. Christopher King was born on the 7^th March 1991. He was admitted on the 11^th April 1991, and found to have a pyloric stenosis, which was repaired on the 15^th April 1991. In the morning of the 18^th April 1991, he was stable. Whilst the defendant was looking after him he collapsed, ceased breathing and went blue. The defendant had called to another nurse to help her because the child had gone a funny colour. He was taken to the treatment room. He recovered without difficulty. He was then left in the treatment room with the defendant: he once again collapsed, and once again the defendant called out for assistance because he had gone blue. The consultant who attended found that he had laboured breathing, was grunting, had a slow heart rate and was very ill. He was uncertain as to whether he would be able to save him. Fortunately he did. Christopher King was transferred to Nottingham. His recovery was uneventful there and he has suffered no permanent damage. At Nottingham an X-ray was taken of his chest which showed fluid on the chest, similar to pulmonary oedema, indicating that Christopher King had been suffocated. The jury convicted of causing grievous bodily harm with intent.
69. Patrick Elstone was born on the 27^th February 1991. He was admitted on the 16^th April 1991 with gastroenteritis. He recovered well, and by the 18^th April 1991 it was thought he would be discharged very soon. During the afternoon of the 18^th April, the defendant asked a nurse to go look at Patrick Elstone as he seemed unwell: the nurse found him pale and grey with shallow respirations: he was given oxygen and recovered. That evening the defendant, who was again with the child, called for assistance: the nurses who attended found that he was blue, that his breathing had stopped, and that his heart was beating very slowly. The consultant who attended was puzzled that it took him about an hour to get his heart and breathing into a satisfactory state. He was transferred to Nottingham. The doctors at Nottingham could find nothing to explain the two collapses. He there had fits, and still has fits indicating permanent brain damage. The prosecution evidence was that the collapses were likely to have been caused by suffocation, and the brain damage was consistent with hypoxia or anoxia resulting from suffocation. There is however some evidence to suggest the child may have been suffering from fits before his admission to ward 4. The jury convicted of causing grievous bodily harm with intent.
70. Claire Peck was born on the 21^st January 1990. She suffered from asthma. On the 22^nd March 1991 her condition caused her mother such concern that she was taken to the hospital and she was admitted to ward 4. She was poorly when she arrived. At about 5p.m., when the defendant was alone with her she collapsed: a nurse who came in at that stage found her blue, arching her back, and not breathing. A consultant attended, and by 6.25p.m. was satisfied that she was recovering. He left her with the defendant. Shortly thereafter the defendant called for help: those who attended found her collapsed, not breathing, and her heart stopped. Resuscitation was attempted for 1 hour 45 minutes, but was unsuccessful. During the process of resuscitation, whilst Claire Peck was being artificially ventilated and given cardiac massage, a blood sample was taken (amongst many others) which when analysed showed a level of potassium incompatible with life: a further blood sample was taken and subsequently analysed showed the presence of Lignocaine had not been given therapeutically. The prosecution expert evidence was that Claire Peck had been injected with Potassium and Lignocaine. The jury convicted of murder.