Calocane: horrific though his crimes were, the CPS and the judge made the right decisions

Many family members of those killed by Valdo Calocane are extremely angry.

The reasons are:

1. They cannot understand how it was that a paranoid schizophrenic was not compulsorily detained in a psychiatric hospital, leaving him free to plan, prepare and carry out the killings.

2. They think it was entirely wrong that Calocane’s plea to manslaughter was accepted by the Crown Prosecution Service. In their eyes this was premeditated murder, and it should have been prosecuted as such. Their anger is compounded because at least some of them believe they were not properly consulted over the acceptance of the pleas.

3. They want the Attorney General to use her powers to refer the sentence to the Court of Appeal, which has the power to quash the hospital order and impose the life sentence that they believe the case requires.

Why was Calocane free to kill?

There is a limit to what anyone can helpfully say about what happened before that terrible night last June. There will surely be an inquiry and the full facts will become known. 

Both the local Mental Health Services and the Nottinghamshire Police have serious questions to answer.

Mental Health Services

There are plenty of legal mechanisms available to compulsorily detain people suffering from serious mental illness, although there has, for many years, been an acute shortage of beds. We do not know if shortage of beds was a reason for Calocane being at large, although I suspect it may have had something to do with it.

He had apparently been “sectioned” four times between 2020 and 2022, though whether that means he was actually detained and treated for any significant time is less clear. Nottinghamshire NHS Trust has said that “we always aim to care for people in the least restrictive way”. In that they were following both the law and the code of practice under the Mental Health Act 1983, but that requirement obviously does not mean no-one should be securely detained: quite clearly he should have been, and the Trust will have to explain why he was not.

Police

Calocane had failed to attend a court hearing in September 2022 – he had been charged with assaulting a police officer. A warrant was issued for his arrest by the Magistrates, but it was never executed by the police. Had it been there is at least a possibility that he would have either been remanded in custody or sent to a secure hospital for psychiatric treatment. In either event Calocane would not have been free to kill.

How much are the police to blame for the failure to execute the warrant? We do not really know. Police resources nationwide are stretched to breaking point. A police control room is not as depicted on the “reality” TV series “Hunted” with a dedicated team of detectives and response officers using instant access to CCTV and telephone records to track down a handful of fugitives.

The reality is that tens of thousands of “bench warrants” are issued every year by Magistrates Courts. Every officer deployed to find and arrest a non-attender at court is an officer that cannot be used, for example, to find a vulnerable missing person, identify a murder suspect or to rush to an urgent incident of domestic violence. The police may well be at serious fault, and if Calocane’s whereabouts was known or could have been easily established they should face proper criticism. But most people who fail to turn up at court do not go on to commit horrific crimes, and the police may not have had any reason to priorotise the hunt for Calocane, a man who at the time had no criminal convictions and was facing only a relatively low level criminal charge.

Perhaps more seriously, since his sentencing it has been reported that he assaulted two employees at the warehouse where he was working just 6 weeks before he killed his victims. The police were called but for some reason he was not arrested. Given that at the time he was already wanted on a court warrant the Nottinghamshire Police will need to explain why not. Somebody who has jumped bail and then committed further violent offences would normally expect to be remanded in custody. He would certainly expect to be arrested.

Manslaughter or murder?

What of the criticism of the CPS, that they should never have accepted his plea to manslaughter?

Barnaby Webber’s mother said:

“True justice has not been served. The Crown Prosecution Service did not consult with us as has been reported. Instead, we have been rushed, hastened and railroaded. At no point were we given any indication that this could conclude in anything other than murder. We trusted in our system – foolishly as it turns out.”

It is not hard to see why the families are so angry. Here was a man who had clearly planned his attacks. The killings were deliberate, intentional and premeditated. How could that be manslaughter rather than murder?

Part of the difficulty arises because the crime of manslaughter can be committed in many different ways.

Sometimes it is committed by gross negligence alone, as when a gas fitter botches the plumbing on a boiler and sends lethal fumes into a bedroom. In such cases there is never any intention to cause death or injury.

Sometimes, however, an entirely different type of manslaughter is committed, where death was intended and even premeditated, as in this case.

Manslaughter by reason of diminished responsibility.

Until 1957 the only “psychiatric” defence to murder was insanity. If successful that resulted in the defendant being found “guilty but insane.” He would avoid the death penalty, although at the time the law required him to be detained “indefinitely.”

The test for insanity was not easy to pass. Sanity was presumed unless the defence could prove its absence. The test was (and still is) contained within what are known as the “M’Naghten rules.”

The rules were devised by a special court of senior judges which had been convened in 1843 after M’Naghten shot and killed a man while labouring under the delusion that he was killing the Prime Minister. He was acquitted by the jury on the grounds of insanity. There was a public outcry. The Queen herself complained about the verdict. Nothing could be done to reverse it, but the judges decided that in the future, for a plea of insanity to succeed, the defence would have to prove that:

“… at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”

In the years since 1843 much judicial energy has been exerted on the interpretation of the rules, mainly to ensure that they were interpreted as restrictively as possible. The broad effect was that if a defendant was found to have the slightest realisation that what he was doing was legally or morally wrong, he was liable to be convicted of murder. Moreover the requirement that the defendant should prove his own insanity meant that the law erred on the side of convicting, and then hanging, people who might well be considered wholly insane in any other context. No allowance at all was given for psychiatric illness which might have reduced a person’s responsibility for their actions.

Miles Giffard

To take just one example: while a schoolboy my father shared a room with Miles Giffard. He recalled an unhappy boy with no friends. He used to sit in bed, cutting his sheets into shreds. It later emerged that when he was a young child his nanny used to lock him into a dark cupboard for hours at a time. His contemporaries all considered him mad, and he was taken out of school and treated by a psychiatrist who diagnosed schizophrenia. The options for treating that condition in the 1940s and early 1950s were very few.

Giffard appears to have been largely unemployable, but he survived for a time on an inheritance, and then on a parental allowance. But when his father cut off the allowance, he wrote a letter to his girlfriend which contained the fateful words:

‘Short of doing him in, I see no future in the world at all. He has stopped my allowance, anyway, is giving me a pint of beer and 20 cigs a day and has said ‘No Pubs’,

He decided to do him in. Arming himself with an iron pipe Giffard battered his father to death. When his mother returned home and he killed her in the same way, before using a wheelbarrow to dispose of both bodies over a nearby cliff. He then took his father’s car and drove to London, stopping only to pick up some hitchhikers, to see his girlfriend. It was a journey described by his own barrister as “motoring straight to the gallows,” and so it proved.

At his trial the defence – funded in a remarkable act of generosity by Mr Giffard senior’s brother – argued that Miles was insane. But the medical evidence fell far short of bringing him within the M’Naghten definition, and he was not helped when the same psychiatrist who had originally diagnosed his schizophrenia was asked if he was “mad or bad.” “Bad” was the damning answer. The family GP thought the same and described him as “an idle little waster.” The jury convicted him in just 35 minutes, and he was sentenced, as the law required, to death. Days before his execution one juror wrote to the Home Secretary to say that she had in fact wanted to find him insane – at that time even a single juror standing against the guilty verdicts would have resulted in a hung jury – and the guilty verdict had been returned after a misunderstanding. Her protest did not save him. Giffard was hanged.

His execution was no miscarriage of justice under the law as it then was. He had suffered for years from diagnosed and virtually untreatable mental illness, but he was almost certainly not “insane” within the M’Naghten rules. Perhaps “haunted” is too strong a word but my father at least was certainly troubled for the rest of his life by what he perceived to have been an injustice to his former room-mate.

Scottish law

But in 1952 English law still did not permit any “half-way house.” A defendant was either sane or insane. In this it differed starkly from the criminal law of Scotland, which since the seventeenth century had recognised that a person might not be wholly insane, yet still be entitled to some allowance for what would now be called mental illness. Scottish courts were never bound by the M’Naghten rules and by the middle of the nineteenth century juries trying a murder case could return a verdict of the less serious offence of culpable homicide – the Scottish equivalent of manslaughter – on the basis of “a weak or diseased state of mind, not amounting to insanity,” in other words diminished responsibility.

The Homicide Act 1957

By the mid-1950s even supporters of capital punishment were prepared to concede that the flexibility of Scots law might have something to be said in its favour. Quite apart from being rather unjust, hanging the mentally ill was hard to defend and provided ammunition for abolitionists. The result was the 1957 Homicide Act, which imported the concept of “diminished responsibility” into English law.

S.2 provided that a person otherwise guilty of murder should be instead convicted of manslaughter if:

“… he 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 his mental responsibility for his acts and omissions in doing or being a party to the killing.”

The Act has since been amended, although the basic principle remains. A verdict of manslaughter on the grounds of diminished responsibility is available if the defendant can establish that:

(a) he was suffering from an “abnormality of mental functioning”, which

(b) arose from a recognised medical condition, and

(c) there was “substantial impairment” of his ability to:

* understand the nature of his conduct; or

* form a rational judgement; or

* to exercise self control.

There is a further condition, that the “abnormality of mental functioning” must have been a “cause or significant contributory factor” in causing the conduct resulting in the killing.

The point to emphasise is that diminished responsibility can only arise once all the other ingredients of murder have been proved. There must be an intention to kill (or at least to cause serious injury). If there is no such intention the killing might still be manslaughter, but it cannot be diminished responsibility manslaughter.

In Calocane’s case there could have been no doubt about the intention to kill.

But there could also be no serious doubt – on the evidence revealed in the judge’s sentencing remarks – that a verdict of diminished responsibility was virtually inevitable.

5 psychiatrists provided reports on Calocane’s mental state. Two were instructed by the prosecution and two by the defence. The fifth was the responsible psychiatrist at Ashworth Hospital where he had been held while awaiting trial. All five greed that he was suffering, and had a documented history of suffering for some time, from paranoid schizophrenia. According to one of the defence psychiatrists, Dr McSweeney:

“He was under the false impression that his thoughts and actions were under the control of artificial intelligence and that his family may be in grave danger. By definition, a person experiencing acute psychosis is not able to accurately test reality or distinguish reality from an abnormal perception. It seems likely that Mr Calocane’s decision-making was largely governed by his psychotic experiences… had he not been labouring under symptoms of acute psychosis, which resulted in his interpretation of reality being grossly distorted, he would not have perpetrated the acts…”

Professor Blackwood, a psychiatrist instructed by the prosecution put it even more bluntly:

“I would consider that his degree of retained responsibility for his acts was at the lower end of the spectrum. He retains some responsibility in that he was not insane at the time of the index assaults. However, there was substantial impairment of his ability to form a rational judgment and to exercise self-control, and the assaults would not have occurred but for his psychotic symptoms. The offending was in my view entirely attributable to his mental illness.”

Unanimous or not, the views of the psychiatrists cannot always be allwed to determine the outcome of a case. Psychiatrists can make mistakes and psychiatrists can be deceived.

The Yorkshire Ripper

That was illustrated when Peter Sutcliffe, “the Yorkshire Ripper,” was tried in 1981 for the murder of 13 women. Sutcliffe had entered pleas of not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility.

The Attorney General, Sir Michael Havers QC, originally decided, and announced, that the pleas were acceptable to the Crown. Four psychiatrists had interviewed Sutcliffe and, Sir Michael said:

“I have met with them to discuss their reports with the greatest care and anxiety and at great length. The general consensus of the doctors is that this is a case of diminished responsibility, the illness being paranoiac schizophrenia.”

Sutcliffe said he was obeying a voice from God which had told him to murder prostitutes.

But the trial judge did not agree. In his view there was reason to believe that Sutcliffe had duped the psychiatrists. He had never mentioned the command from God when he was first arrested, and whilst awaiting trial he had told his wife Sonia:

“I am going to do a long time in prison, 30 years or more, unless I can convince people in here I am mad and maybe then ten years in the loony bin.”

Sir Michael changed his mind, and decided to proceed with the murder charges. Sutcliffe was convicted of murder.

Perhaps in the end it did not make a great deal of difference to Sutcliffe. Shortly after beginning his life sentence he was transferred to Broadmoor, the high security psychiatric hospital to which he would have been sent had his pleas to manslaughter been accepted. However, after 32 years in Broadmoor – during which he was himself attacked and seriously injured several times – he was pronounced no longer in need of psychiatric treatment and returned to prison, where he died in 2020.

Why not let a jury decide?

It would have been open to Mr Justice Turner, Calocane’s judge, to have questioned the prosecution’s acceptance of the manslaughter pleas, although the ultimate decision on whether to proceed with a trial is always that of the prosecution: a judge should not act as a prosecutor. But unlike in Sutcliffe’s case Turner J. went out of his way to state his agreement with the prosecution:

“on the basis of the material before me, I am entirely satisfied that prosecution were right to ackonwledge that your mental condition satisfied the criteria giving rise to the partial defence of diminished responsibility.”

The most important of many differences is that unlike Sutcliffe, who was diagnosed months after his arrest, never having been considered psychotic beforehand, Calocane had been known to be suffering from schizophrenia for years before the night of the killings. There was no reason to suppose that he had faked his illness. The second psychiatrist instructed by the prosecution was quoted in the sentencing remarks:

“I have specifically considered from the information available whether Mr Calocane’s account appears that it might have been fabricated by him. It is of course possible but the nature of the beliefs and experiences he described are consistent with what has been known about his illness since 2020. The three experts who have interviewed him have all found what he described to be consistent with his mental illness. It is unlikely that he has fabricated symptoms.”

What would have happened if the prosecution had proceeded with the murder charges despite this evidence?

Trials are unpredictable. The judge might have, and (for what it’s worth) in my view would have, stopped the trial, ruling that given the psychiatric evidence a murder conviction would be irrational. Or he might have decided that despite the psychiatric evidence, the case should nevertheless be left to the jury to decide. Jurors are always told that they are not obliged to accept expert evidence, even if all the experts are saying essentially the same thing. The jury’s revulsion at Calocane’s crimes might just have persuaded them to ignore or reject the psychiatric evidence. A danger of the jury system is that sometimes juries are able to ignore the evidence and convict because of their disgust at a defendant’s behaviour.

But the question is hypothetical. The prosecution would never have proceeded on the murder allegations, because by the time the fourth psychiatric report was produced there was simply no way that doing so could have been justified by the evidential test that the CPS is meant to apply when starting or continuing any prosecution. The test is satisfied only if:

“… an objective, impartial and reasonable jury, … properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.”

To have continued with an evidentially weak case in the hope that an unreasonable jury would have been willing to convict because of their revulsion at the crime would have been quite wrong.  The CPS were right to drop the murder charges.

Consultation with the families

Many family members are angry that they were not properly consulted over the decision to accept the manslaughter pleas.

According to The Times:

“The families of the victims said they were not consulted by the CPS about whether they were going to accept manslaughter verdicts and that there are several factors pointing to Calocane having planned the fatal attacks. At the time he stockpiled knives he changed his name by deed poll to Adam Mendes, and when he killed Webber and O’Malley-Kumar he had laid in wait in the shadows.”

The stockpiling of knives, perhaps the name change, and certainly the fact that Calocane lay in wait for his victims are all suggestive of an intention to kill, but they miss the point. An “intent to kill or cause grievous bodily harm” is always present in every case of manslaughter by diminished responsibility. The question was not whether Calocane had such an intent – he obviously did – but whether that intent was caused to a significant extent by his mental illness.

It is obviously very good practice for the CPS to keep familes informed and, as far as possible, to take their views into account in making prosecutorial decisions. It is entirely possible that grieving relatives might have thoughts on a case that make prosecutors look at a case from a different angle, and perhaps to change their minds about the acceptability of a plea; lawyers should not be so arrogant as to assume that they always know best.

But in practice taking views into account “as far as possible” often means “not at all.” The CPS evidential test rightly does not refer to the views of the victims or their families. Decisions which depend upon the evaluation of the evidence or the strength of the case require objective consideration by prosecutors, and the wishes of the bereaved, bluntly, are irrelevant.

What, then, is the point of consulting with victims or families at all?

In a case such as Calocane’s common decency and compassion would require the CPS to keep the families informed of developments in the case, and to listen to their concerns, even if their influence over any charging decisions was always likely to be minimal.

There are of course some cases – this was not one of them – where the attitude of the victim of a crime might be relevant to the strength of the case. If a witness is unlikely to support a prosecution that is something which, like it or not, does affect the strength of the case, and thus the decision to prosecute, though it is not necessarily determinative.

And a victim’s views will often be very relevant to the second question the CPS must answer: “is a prosecution in the public interest?” A crime which might at first sight seem so minor as to not be worth prosecuting might take on a different complexion once the background is known. A mother might want to see her teenage son prosecuted for stealing money from her handbag: should her views be ignored? Certainly not, although nor should they be decisive. But generally speaking, the more serious the crime, the less weight is likely to be given to the views of victims and families.

If the evidence on a homicide supports a murder charge it is almost certain to be prosecuted as a murder, whatever the views of the relatives. If it does not, the CPS should not prosecute a murder charge, whatever the relatives’ wishes may be.

And one very difficult job of the CPS can be to explain to families why their views on the conduct of a prosecution carry so little weight.

An appeal?

The prosecution have no right to appeal against the decision to accept Calocane’s pleas to manslaughter. It would anyway be eccentric to appeal against their own decision.

Nor is there any way the relatives can appeal in an attempt to bring about a murder trial.

Is there any chance that Calocane could ever be tried for the murders?

The short answer is almost certainly not, although the longer answer is that it depends on exactly what took place at the sentencing hearing.

There are two procedures which can be adopted when the Crown accepts a plea to a lesser offence. Sometimes the prosecution will “offer no evidence” on the more serious charge, in which case the judge will enter a formal verdict of “not guilty” to it. If that happens the more serious charge can never be resurrected under any circumstances.

Alternatively the more serious charge can be “left on the file, marked not be proceeded with without leave of this Court or the Court of Appeal.” If that happens a very slight and largely theoretical possiblity remains that the Crown could proceed with the more serious charge at some later date.

I do not know for certain what happend in this case, but even if the murder charges were “left on the file” it would take something extraordinary – perhaps some wholly unexpected new evidence totally undermining the basis of the psychiatric opinions – that might lead to their revival. For all practical purposes there is now no chance that Calocane could ever be prosecuted for the murders of his victims.

What about the sentence?

There is slightly more chance of the prosecution appealing against the sentence, or to put it technically “referring the case to the Court of Appeal.” The Court would then have the power to impose a different and more severe sentence.

The decision is that of the Attorney General Victoria Prentis, who has announced that she is considering such a referral. She will be advised by independent counsel, and would be well-advised to listen to their advice. When she was Attorney General Suella Braverman came in for criticism from the Court for referring sentences which were entirely in line with the relevant sentencing guidelines. In giving judgment on her attempt to have the sentences increased the head of the Queen’s Bench Division described her submissions as “striking,” “to say the least … unusual” and “regrettable.”

Should the current AG refer the case, I doubt whether there is much chance of the Court of Appeal changing the sentence into one of imprisonment.

There are sentencing guidelines for manslaughter by diminished responsibility. They set out three bands of responsibility: high, medium or low. On the basis of the medical evidence the judge said “the level of responsibility … was at the lower end.” The starting point in the “low” category for a single manslaughter by diminished responsibility is 7 years.

However,  given the numbers of people he killed and tried to kill the judge indicated that were he passing a prison sentence it would have been a life sentence, with a minimum term of 13 years and 4 months.

Why not, then, impose such a sentence? If released after serving the minimum term, he could be recalled to prison, and whilst in prison he would be punished appropriately; perhaps not quite “rotting in a dungeon” as Mail columnist Sarah Vine would wish, but at least suffering as much as the law permits for as long as possible.

The answer is that there are limits to the extent that a civilised system should punish those who have offended because of a mental illness. The evidence was that Calocane’s crimes were “wholly attributable to his mental illness.” If that was so why should he be punished at all?

So the sentencing guidelines required the judge to give careful consideration to imposing either a hospital and restriction order under S.37/41 of the Mental Health Act 1983 (when any ultimate discharge would be the responsibility of a Mental Health Tribunal), or what is colloquially known as a “hybrid” order under S.45A. Under the latter, a term of imprisonment would have been specified but Calocane would have been taken from court to hospital; only if his mental health improved such that treatment in hospital was no longer necessary would he later have been moved to prison to complete his sentence, with his release (assuming a life sentence) determined by the Parole Board rather than a Mental Health Tribunal and the Secretary of State for Justice.

To some, the potentially more punitive nature of a “hybrid” order might seem appropriate. On the other hand, given that his mental illness provided a complete explanation for otherwise inexplicable and motiveless crimes, why was punishment necessary? We do not punish people for being ill.

And in practice, for many reasons, the courts tend to dislike imposing hybrid orders. Professor Blackwood explained the main one applicable in this case:

“A period of imprisonment risks non-compliance with medication and a deterioration in his mental state and increase in risk to others. In the defendant’s case there is no evidence to suggest that but for his mental condition he poses any risk to the public. In these circumstances, the Parole Board would likely be bound to follow the recommendation of the clinicians and the tribunal as to release. The introduction of the Parole Board into the release procedure in the defendant’s case would thus not materially enhance public safety.”

In other words, what would be the point in treating him with medication, only to send him back to prison where his mental health would be likely to deteriorate again?

And members of the public would be more likely to be at risk if he were ever released, because (under a sentence of imprisonment or a hybrid order), as the judge explained:

“… upon release from prison, you would not be supervised by a team of mental health experts reporting to the hospital and the Secretary of State for Justice but instead by a probation officer. Such a probation officer will not be trained to spot the subtle signs of mental health deterioration and, if they are identified, will not have the powers to intervene to arrest any such deterioration. Furthermore, there are significant concerns that a prison environment would give rise to a risk that, in the event of a relapse, you would present a real danger to prison officer and fellow prisoners alike.”

The judge appears to have paid attention, as one would expect, to the recent cases of Fisher [2019] EWCA Crim 1066 and Nelson [2020] EWCA Crim 1615 where the considerations for imposing a hybrid order or a S.37/41 order are carefully set out. In the latter case the Court of Appeal heard evidence that those released under section 37/41 hospital and restriction orders were likely to reoffend in 4 per cent of cases, whereas 28 per cent of those released under life licences would reoffend.

There have been suggestions in the press that Calocane might now be released after as short a time as 3 years. That is, indeed, a theoretical possibility but it is simply not going to happen. For his release to take place, not only would his treating psychiatrists have to be satisfied that it was no longer necessary for him to be detained in a secure hospital, but the Secretary of State, informed by a Mental Health Tribunal, would have to agree as well. That will not happen within 3 years; indeed given the evidence about the nature of his illness it may well never happen.

Might the Court of Appeal alter the sentence?

It is highly unlikely. The judge followed the guidelines, the case law and the evidence. I would not expect the Attorney General to refer the case to the Court of Appeal and if she did I would not expect the Court to alter the sentence. The Court only interferes if the sentence is outside the range that a reasonable judge could impose, and it seems to me that Mr Justice Turner acted entirely reasonably.

Final thoughts

Schizophrenia is not a rare condition. Often, like Calocane, before their illness sufferers are law-abiding, intelligent, high-achieving and well-liked. It typically develops during teenage or young adult years. Those affected, by definition, suffer hallucinations and delusions and may have only a hazy grip on reality. Whilst generally treatable to an extent with a range of anti-psychotic drugs, all of these can have unpleasant side effects, one of the reasons why patients can be reluctant to take them. Perhaps in part because of the effect of long-term anti-psychotics, the life expectancy of schizophrenics is around 15 years less than normal. Calocane’s condition seems to be particularly resistant to treatment, and it was said in Court that he is now being treated with clozapine, which was described as an anti-psychotic of last resort, with particularly severe side-effects. It is certainly not a drug that anyone would choose to take if it could possibly be avoided. In a secure hospital Calocane will have no choice. The terrible consequences of his 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.