England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 8th November 2007

1. MR JUSTICE KING: Ian Douglas Hurst was born on 21st January 1965. He is now aged some 42 years of age. On 12th February 2007, at the Crown Court at Guildford before His Honour Judge Addison, he was convicted of assault occasioning actual bodily harm. The particular offence dated from events some time before, namely in September 2005.
2. The particular offence was a serious case of road rage upon an elderly victim. The detailed facts are these. At about 6.40 in the evening, the 72 year old victim-to-be, a Mr Hayley, was travelling alone in his car. He noticed a car travelling close to his rear bumper and attempting to overtake him. The driver of this car was the appellant. There was also a female passenger in the car. The appellant became annoyed when he was unable to pass the victim's car. He finally managed to pull diagonally in front of him, blocking his progress. He pulled open the driver's door and punched the victim five or six times in the face. Mr Hayley was unable to defend himself. The appellant's girlfriend was yelling at him to leave Mr Hayley alone. Mr Hayley was still wearing his seat belt. He suffered a cut to his eyebrow and lip, which required a stitch, and painful swellings to his face. The appellant slammed the door shut and kicked it. He drove off. He subsequently changed the number plates on his car.
3. Mr Hayley, not surprisingly, was extremely distressed as a result of this accident. His health sadly deteriorated and his heart has been under investigation. He has suffered from flashbacks. It was a serious case of actual bodily harm.
4. On 27th April 2007 the same court came to sentence the appellant for this offence. The court imposed a hospital order pursuant to section 37 of the Mental Health Act 1983 ("the Act") with a restriction order without limit of time pursuant to section 41 of the Act.
5. The appellant now appeals with leave of the single judge against the making of the restriction order. No appeal is made against the making of the hospital order as such. On the evidence before the court, such an order was patently proper.
6. The effect of a restriction order is that it prevents the appellant from being discharged, granted leave of absence or being transferred to another hospital without approval of the Home Secretary, although in certain circumstances he may be discharged by a Mental Health Review Tribunal. As the single judge said in granting leave in this case, a restriction order has far-reaching consequences.
7. Under the terms of section 41, a judge may, when he makes a hospital order, make a restriction order provided first that, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing offences if set at large, he considers it necessary for the protection of the public from serious harm to do so; and secondly, at least one of the medical practitioners whose evidence is taken into account has given evidence orally before the court.
8. In an ordinary case, where the object is that the offender should receive treatment and be at large again as soon as he can be safely discharged, a restriction order is of course not appropriate. However, it is recognised that a restriction order ought to be made where the judge considers that the public needs to be protected from serious harm in the case of, for example, a violent offender. The section places responsibility for making a restriction order on the judge if, in his opinion, it is necessary for the stated purpose. The fact that all the medical witnesses advise against such an order does not mean that it is wrong in principle. However, there must be evidence on which to base such an order.
9. In Birch [1989] 11 Cr App R (S) 202 at paragraph 213, this court, in the judgment of Mustill LJ, emphasised that a court is required to assess for the purposes of a section 41 order not simply the seriousness of the risk that the defendant will re-offend, but the risk that if he does so the public will suffer serious harm. The harm in question need not be limited to personal injury, nor need it relate to the public in general. Nevertheless, the potential harm must be serious and a high possibility of a recurrence of minor offences will no longer be sufficient.
10. Equally, however, in Golding [2006] EWCA Crim 1965, this court made clear that, in assessing the question of risk, the court is not bound to judge the issue simply by looking at a defendant's antecedents.
11. There is no issue in this case but that there was here a high risk of the appellant re-offending. The issue raised on the appeal centres essentially upon whether there was evidence before the judge properly to justify the conclusion that the public required protection by way of a restriction order from this appellant causing serious harm by re-offending. Was there evidence sufficient to justify an assessment of risk that if the appellant re-offended the public would suffer serious harm and that a restriction order was necessary to protect the public from that risk?
12. Particular difficulty has arisen because the medical evidence before the judge was all one way in not recommending the making of a restriction order, and although the appellant has a number of previous convictions for violence, including convictions for actual bodily harm and common assault, there was no evidence to show he had caused serious harm in the past.
13. Unfortunately, the judge did not explain in his sentencing remarks why he was disagreeing with the medical recommendation. He did not deal in any specific way with the evidence given either in writing by the two psychiatrists or the oral evidence called before him from one of them, Dr Andrews. On the need for a restriction order, his remarks were short and gave little away as to what his process of reasoning had been on the issue of assessment of risk of serious harm. The judge said this, having rehearsed the facts of the instant case:

"You have a bad record for driving offences, dishonesty and violence.

If I had not heard medical evidence I would have imposed an extended sentence under section 227 of the Criminal Justice Act 2003. But I have heard from two doctors, Dr Andrews and Dr McLauchlan, written statements, and I am satisfied that you are suffering from mental illness and that it is of a nature or degree which makes it appropriate for you to be detained in a hospital for medical treatment. I am of the opinion, having regard to all the circumstances, including the nature of the offence and your character and antecedents, that the most suitable method of disposing of your case is by means of an order under this section.

I am satisfied that arrangements have been made for you to go to the Alpha Hospital in Woking under section 37 of the Mental Health Act 1983 and that a bed is available to you there. So I do make a hospital order under section 37 that you go to the Alpha Hospital in Woking.

I have also to consider whether to make a restriction order under section 41 of the Mental Health Act 1983 and I then have to consider whether having regard to the nature of the offence, your antecedents and the risk of your committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so, then I may make a restriction order.

Well, in my view it is necessary for the protection of the public and the risk of your committing further offences if set at large, and for the protection of the public from serious harm, to make a restriction order and I do so. I do not attach any limit of time to that. Yes, thank you. That is all."

14. In granting leave, the single judge explained he had done so (a) because the sentencing judge had not explained why he did not accept the medical evidence, and (b) because of the far-reaching consequences of the restriction order.
15. We turn to consider the evidence as to the appellant's antecedents, personal background and medical history.
16. The medical evidence before the judge consisted of written reports from two consultant psychiatrists: first, Dr McLauchlan, his report being that of 7th March 2007, updated on 13th March; and, secondly, Dr Andrews, his written report being of 23rd April 2007. Oral evidence was given by Dr Andrews himself. In addition, Dr Andrews has provided to this court a written updated report of 25th September 2007 and an addendum of 31st October 2007.
17. Dealing first with the antecedents, undoubtedly this appellant has a long series of previous convictions: 43 in all, covering 111 offences. Many relate to theft, many relate to drug offences. They relate to the police, the courts and the prisons. 12 of them, however, relate to offences of violence against the person. We consider it important to list what they were, but we say at once that on the evidence none of them included evidence that serious harm had been caused: on 11th December 1980, assault occasioning actual bodily harm ("ABH"); 11th February 1982, ABH; 30th December 1982, ABH; 20th September 1983, ABH; 21st December 1984, ABH; 11th February 1986, ABH; 3rd March 1987, ABH; 4th October 1991, common assault; 18th October 1995, assaulting a police officer and ABH; 1st September 1998, common assault; 15th September 1999, common assault; and 18th October 2005, common assault.
18. There was a pre-sentence report before the court, which described the appellant as a man troubled by a history of drug and alcohol abuse with a range of associated offending. The report described how the appellant had not responded well in the past to community penalties and attempts at drug rehabilitation. There had been no previous orders made under the Mental Health Act.
19. On the assessment of risk of re-offending and risk of harm, the report assessed the risk of re-offending as high with a raised risk of harm to the appellant's former partner. On the question of dangerousness and assessment of the risk of harm for the purposes of the dangerous offenders provisions of the Criminal Justice Act 2003, which embrace a similar concept of a significant risk of serious harm being caused by re-offending, the following passage appears:

"There have been previous offences of violence, mostly committed whilst under the influence of alcohol and drugs and against a background of mental health problems. There is evidence that he has potential to cause harm, but there is no history of causing serious harm. However, when considering the observations and concerns made within the Psychiatric Reports regarding Mr Hurst's current mental health, Mr Hurst is having 'paranoid and persecutory delusional beliefs' about others that already have, and could again, lead to aggressive, violent outbursts. If Mr Hurst is reluctant to accept treatment, it is noted that there is likely to be a further deterioration in his mental health."

20. Dr McLauchlan had treated the appellant during his time at the Abraham Cowley Unit in Chertsey between August 2006 and March 2007. The appellant first came to that unit following a transfer from HMP Highdown under sections 48 and 49 of the Act because of an apparent deterioration in his mental health, in particular the development of paranoia and persecutory delusional beliefs. Dr McLauchlan reported that the appellant's behaviour at the Abraham Cowley Unit had caused concerns, and at times the appellant had become threatening. He had not responded well to the medication provided to him. His mental state had seemed to improve in January 2007, but again had deteriorated after his conviction for the present offence in early February. On 4th March 2007 the appellant had to be restrained and had allegedly bitten the hand of a member of staff. He was then transferred back to HMP Highdown.
21. We interpose here that in one of Dr Andrews' reports, in the context of what had been happening at the Abraham Cowley Unit, there are notes that on 10th November 2006 the appellant had become confrontational and aggressive towards members of staff and refused to comply with his medication. The situation had escalated and the police had had to be called in. It was thought that alcohol and possibly illicit substances were responsible for the deterioration of the appellant's mental state and resulting aggressive behaviour. However, once the appellant returned to the prison at Highdown his condition, said Dr McLaughan, settled and he was then assessed by Dr Andrews with a view to his admission to the Alpha Hospital in Woking.
22. Dr McLauchlan's diagnosis, based on his last assessment of the appellant in March 2007 shortly before his transfer back to prison, was that the appellant was suffering from a psychotic illness, probably post-traumatic schizophrenia. He believed the condition was post-traumatic because there was evidence that after the appellant had been injured in a road traffic accident in September 2005 (a few days after the incident giving rise to the present offence) his mental health had begun to deteriorate significantly, although Dr McLauchlan believed he was also psychotic at the time of the offence. Dr McLauchlan recommended an order under section 37 of the Act. He did not consider it necessary to impose any further restriction.
23. The appellant, as indicated, was at the prison at Highdown. He was there between 4th and 26th March 2007. He was then transferred to the Alpha Hospital in Woking under sections 48 and 49 of the Act. There Dr Andrews examined him for the purposes of his report of April 2007. In that report Dr Andrews noted that the appellant was beginning to settle down at the hospital and his mental health was improving. Dr Andrews believed that the appellant was suffering from paranoid schizophrenia. He recommended an order be made under section 37 of the Act, but without any restriction order under section 41. In his report under the heading of "Risk Factor", he said the following:

"He [the appellant] has a history of abusing alcohol and illicit substances which lowers his inhibition and threshold for tolerance. He has a history of violence. There is a high risk of assaulting members of staff and possibly members of the public."

In his recommendations, he stated this:

"Douglas currently shows evidence of paranoid schizophrenia. The nature and degree of this illness warrants detention and treatment in the hospital. He is a danger to others and requires consistent treatment in a secure setting. I recommend that he is transferred to Alpha Hospitals Woking under Section 37 of the Mental Health Act 1983, without restriction order."

24. It is noteworthy that although Dr Andrews spoke of a high risk of the appellant assaulting members of staff and members of the public and of his being a danger to others, there was no express assessment that there was a real risk of the appellant causing serious harm in any future offending. However, it was obvious in the light of those comments that Dr Andrews should explain to the judge why he did not think a restriction order was necessary. He was called before the judge and asked that very question. He told the court that there were types of illness that responded to medical treatment and types that did not. He emphasised that the appellant was starting to respond to the medication he was receiving at the Alpha Hospital. He was developing an insight into his condition, albeit limited at present. In terms of his long-term management, it was the development of an increasing awareness of his own mental health problems which was the key to ensuring that he would take his medication and could be treated in the community. That would take time to develop, but the limited insight he had now developed was a positive sign. Although there were elements of risk in the appellant's history, Dr Andrews' view was he would respond to treatment that would manage the risk satisfactorily. Dr Andrews expressly said to the judge that he did not think the appellant presented the appropriate level of dangerousness within the meaning of section 41. He also explained that at or before the time of the discharge of any order under section 37, the hospital would apply for supervision under section 25A of the Act in order to assist in effectively managing his treatment in the community.
25. We have already set out the judge's sentencing remarks.
26. The grounds of appeal in the notice of appeal in effect assert that the section 41 order was wrong in principle in that there was no or insufficient evidence to justify the making of the order and the judge had failed to explain his decision to make one.
27. The detailed grounds are as follows:

(1) The written evidence from the two psychiatrists whose evidence was before the court did not recommend the making of a restriction order;

(2) When giving oral evidence, Dr Gilbert Andrews confirmed that he did not believe a restriction order was required. He said that the appellant had responded well to treatment he had received in the last few weeks before sentence. He was of the view that, in the light of that positive response to treatment, he was likely to continue to respond well and any risk would be managed satisfactorily;

(3) Whilst the appellant has previous convictions for assault occasioning actual bodily harm and common assault, there was no evidence to show that he had caused serious harm in the past;

(4) There was no or insufficient material before the court to indicate that there was a risk that the appellant would cause serious harm to others in the future; and

(5) The judge, in his sentencing remarks, failed to explain in clear terms why he was making a restriction order when no such order was represented by the psychiatrists. He failed to address Dr Andrews' observations and justify his decision to impose an order under section 41 of the Act.

28. We have considered all the material which was before the judge. We have also had the benefit of considering the updated material to which we have referred. In the updated report of 25th September 2007, Dr Andrews said that the appellant had undoubtedly presented with psychotic symptoms. However, having observed him in the unit Dr Andrews was now doubtful about the diagnosis of paranoid schizophrenia. He was currently showing evidence of major depressive disorder. If he started drinking again and stopped his medication there was a high chance of him becoming psychotic again. The appellant, Dr Andrews said, was suffering from dissocial personality disorder with features of alcoholism and depressive illness and episodic psychotic breakdowns. This warranted further detention and treatment, and his dangerousness would be minimised if he took his medication and refrained from illicit drugs and alcohol. However, the appellant had made significant progress and was not in need of a restriction order. In other words, Dr Andrews maintained his previous opinion. He also made what might be thought is a particularly compelling point, that a lack of a restriction order would assist in the planning of the appellant's rehabilitation and the next stage of his treatment.
29. The one problem with that updated report was that Dr Andrews had not had any details of the index offence for which sentence was passed and he had not discussed those details with the appellant. In a letter of 17th October 2007 written to this court Dr Andrews said: "I have now applied to the Ministry of Justice for further information on the index offence. I will make an effort to discuss the significance of the index offence with him before I can make any recommendations to the Criminal Appeal Office".
30. It is now clear that Dr Andrews has now had access to the details of the offence. He has written to the court by letter dated 31st October 2007, in which he sets out discussions he has had with the appellant about the offence. The following appears:

"I agree that he [the appellant] was labouring under abnormal belief at that time and had false perception of events.

[The appellant] also shared with me a copy of his past convictions and we went through some of the instances of [actual bodily harm] in detail.

He told me that he had a reputation in his earlier life that always preceded him, in that he was known to be dragged into problems.

There have been 12 charges of offences against persons and there are a total of 8 charges of actual bodily harm. Of the 8 charges, 7 were carried out between the ages of 15-22. The other offence of ABH took place when he was 30 years old. He was said to have spat on a police officer and resisted arrest. Except for this one episode there has been no evidence of significant violence from the age of 22.

[The appellant] informed me that most of these outbursts of violence happened when he was intoxicated either with alcohol or illicit substances.

[The appellant] started seeing Ms Kim Fisher, Psychotherapist at Alpha Hospital Woking and is addressing various significant issues. In particular, he is discussing the effects of alcohol and other substances on his mood and behaviour. He is taking some responsibility for his past behaviour and has expressed a desire to remain abstinent when he leaves the hospital. He also has acknowledged that he is going to need supervision and support when he lives in the community.

Bearing this in mind, I would conclude that he has low to moderate risk of assaulting others. His propensity for violence would be substantially minimised if he stays off alcohol and other illicit substances.

In conclusion, I have satisfied myself that I have seen the details of the index offence, my recommendation made in my earlier report of 25 September 2007 remains the same."

Of course, that was a recommendation for a hospital order without a restriction order.

31. Having considered all these matters we have come to the conclusion that the submissions made in the grounds of appeal are well made out. We conclude that on the material before the judge it was not a justifiable conclusion in the terms of section 41 that it was necessary for the protection of the public from serious harm to impose a restriction order. There was ample material to support a finding of a high risk of re-offending involving violence. However, in our judgment there was insufficient evidence to justify what was a strong conclusion resulting in an order with far reaching consequences for the offender, both that there was a risk of sufficient seriousness that if the appellant were to re-offend the public would suffer serious harm, and that in the circumstances of this particular offender a restriction order was necessary to protect the public from that risk.
32. We emphasise the requirement under section 41 that a restriction order be considered "necessary". It may well be that the judge in this case was influenced by the history of violence to staff while the appellant was at the Abraham Cowley unit and the observations made by Dr Andrews in his written report of there being a high risk of the appellant assaulting members of staff and members of the public. However, as we have indicated, those observations were subsequently qualified by Dr Andrews in his oral evidence to the effect that in an appropriate setting the appellant's condition was being properly addressed and was responding to appropriate medication and that the degree of risk was diminishing. It was unfortunate in these circumstances the judge did not himself address the evidence given by Dr Andrews or explain why he felt it necessary to depart from the recommendation of both medical experts that a restriction order was not required in this case. We have already noted the emphasis put by Dr Andrews in his updated report to this court on the planning of the appellant's rehabilitation and the next stage of his treatment, and the hindrance which a restriction order would place upon the same.
33. In all these circumstances, although we sympathise with the judge in the approach he took, given in particular the facts of the index offence, we have concluded that the section 41 order should be set aside. Accordingly, the section 41 order is set aside and in substitution there will simply be a section 37 hospital order without restriction.