England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HARROW CROWN COURT
HIS HONOUR JUDGE GREENWOOD
T20117464

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/05/2013

Lord Justice McCombe:

1. On 7 September 2012 in the Crown Court at Harrow, after a trial before His Honour Judge Greenwood and a jury, the present applicant was found not guilty by reason of insanity of one charge of attempted murder, one charge of wounding with intent and one charge of unlawful wounding. The victim of each of the offences alleged was the applicant's then 7 month old daughter, MJ. On 21 November 2012, the applicant was sentenced to a supervision order for 2 years under s.5 of the Criminal Procedure (Insanity) Act 1964 and was made the subject of a restraining order under s.5A of the Protection from Harassment Act 1997 for a period of 5 years. The order was in terms restraining him from contacting (directly or indirectly) MJ, a further child called JJ, and his former partner and mother of the children, EJ. He was further restrained from contacting directly or indirectly any relative of the previously named persons under the age of 15 years, without prior permission from a qualified mental health supervisor, probation officer or nominated social services worker, and from attending or coming within 50 yards of an identified property in Wembley.
2. His application for leave to appeal against sentence (made in respect of the restraining order only) has been referred to the Full Court by the Registrar. We grant leave.
3. This is a tragic and disturbing case, the facts of which are as follows. There was no dispute about them at the trial, the issue being in reality as to the mental health of the appellant (as he now is) at the time of the incident. The appellant had a history of paranoid schizophrenia. In the week prior to 21^st October 2011 he suffered a marked deterioration in his mental health, hearing voices, having hallucinations and a belief that he had won the national lottery. He was also lacking sleep. He sought help from mental health services and there was evidence that he merited admission to hospital as an in-patient. On 20^th October 2011 the applicant was at the home of his partner's mother where his partner was living. He became emotional. In the early hours of the following morning he began to act irrationally, speaking of demons, of the family being angels and going to a better place. He picked up his 7 month old daughter and carried her into the living room. He ushered all the family into the living room and required his partner's mother to read passages from the Koran. EJ was so concerned about his mental state that she managed to leave the living room and call the police. Shortly afterwards the appellant returned with a knife. He continued to speak about going to the angels and to a better place. The police arrived and tried to reason with him but the appellant threatened to stab MJ if they did not stay back. He then stabbed her four times in the chest before making stabbing motions to his own throat and wrist causing injury. The police subdued him using CS spray. The appellant's injuries were minor, MJ received emergency surgery for life threatening injuries. She was discharged on 2^nd November.
4. There were extensive medical reports on the appellant's mental health before the Court, both at trial and at the disposal hearing after verdict on 21 November 2012. The reports disclosed differences between the experts as to the precise extent and nature of the appellant's disability and as to his proper further treatment. As appears from the learned judge's sentencing remarks, this disagreement led to significant difficulties for him in framing a suitable disposal for this appellant, having due regard to the constraints of the statutory provisions. In view of the severity of the attack upon MJ, the judge would, no doubt, have felt more comfortable if the evidence had permitted him to make a hospital order. In the end he felt himself limited to the making of the supervision order under s.5 of the 1964 Act and there is no challenge now made to that order.
5. As indicated the subject of the appeal is the restraining order. That order is challenged on three bases. First, it is argued that the judge had no statutory power to impose such an order. Secondly, it is said that, even if the power existed the facts did not justify the making of the order. Thirdly, it is submitted that the rights under Article 8 of the ECHR of the appellant and the persons named in the order were unjustifiably infringed by the making of the order.

The Protection from Harassment Act 1997

6. The scheme of the 1997 Act is as follows. Section 1 contains a general provision prohibiting harassment. Section 2 provides for criminal sanctions for breach of the prohibition. Provision is made for a civil remedy in section 3. Sections 5 and 5A respectively provide for the court's power to make a restraining order in the case of either a conviction or an acquittal. Section 7 provides limited guidance on interpretation. The material parts of the Act, for present purposes read as follows:

Section 1

"(1) A person must not pursue a course of conduct-

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other."

Section 7

"(2) References to harassing a person include alarming the person or causing the person distress.

(3) A "course of conduct" must involve-

(a) In the case of conduct in relation to a single person (see section 1(1)) conduct on at least two occasions in relation to that person……."

It is to be noted that there is no express statutory definition of harassment. As Toulson LJ (as he then was) noted in R v Mark Smith [2012] EWCA Crim 2566, this omission prompted criticism from commentators at the time of the legislation and he proceeded to set out some of the criticism and subsequent legislative history.

Section 5

"(1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence…may…make an order under this section.

(2) The order may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from conduct which

(a) amounts to harassment, or

(b) will cause a fear of violence,

prohibit the defendant from doing anything described in the order.

(3) The order may have effect for a specified period or until further order.

(4) The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.

(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).

(5) If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.

(6) A person guilty of an offence under this section is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or a fine, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both.

(7) A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order."

Subsection (1) as originally enacted provided as follows:

(1) A court sentencing or otherwise dealing with a person ("the defendant") convicted of an offence under section 2 or 4 may (as well as sentencing him or dealing with him in any other way) make an order under this section.

Section 5A

"(1) A court before which a person ("the defendant") is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order."

It is to be noted that this section does not contain any equivalent for protection of anyone from "fear of violence": c.f. s.5 (2)(b). The order has to be necessary to protect "from harassment". Continuing with the contents of section 5A, the section continues with subsection (2),

"(2) Subsections (3) to (7) of section 5 apply to an order under this section as they apply to an order under that one.

……

(5) A person made subject to an order under this section has the same right of appeal against the order as if-

(a) he had been convicted of the offence in question before the court which made the order, and

(b) the order had been made under section 5."

The appeal grounds

7. The first point taken on the appeal is that where section 5A of the 1997 Act (as amended) speaks of a person being "acquitted" this does not include a person who has been found "not guilty by reason of insanity". The short point is that the special verdict returned in a case such as this is neither a "conviction" nor an "acquittal", but something in between the two, i.e. as statute provides, a "special verdict". It is submitted that the ordinary meaning of an acquittal does not include a verdict by which an accused person is found not guilty only by reason of insanity, i.e. where he is found by a jury to have committed the act in question but is excused from criminal responsibility for it by reason of insanity.
8. It is to be noted that this case is one where the issue of insanity was before the jury and they returned the verdict of not guilty by reason of insanity, i.e. a special verdict under section 2 of the Trial of Lunatics 1883. It is not a case where there has been a finding of unfitness to be tried and a jury has subsequently determined under section 4A of the 1964 Act that the accused "did the act…charged against him". In this latter case, the question of fitness to be tried is determined by the court without a jury: see section 4(5) of the 1964 Act.
9. In deciding upon the present submission, we must have regard to the potentially parallel question to the one raised here, namely whether the court would have power to make a restraining order under section 5 or section 5A of the 1997 Act.
10. For our part, it seems clear, as a matter of ordinary language that a person found "not guilty by reason of insanity" has indeed been acquitted of the offence. That is what a finding of "not guilty" is, whatever the basis upon which that verdict is returned.
11. Mr Beharrylal for the appellant drew our attention to sections 12 and 13 of the Criminal Appeal Act 1968 in which it is provided that a defendant against whom a special verdict has been returned may appeal to this Court which can "substitute for the verdict of the jury a verdict of acquittal". He submits that this demonstrates that the legislature perceives a difference between the two types of verdict and that the special verdict is not a true acquittal.
12. Of course, it must be recalled that there is not generally any right or need on the part of an acquitted person to bring an appeal. However, as the two sections illustrate there may well be circumstances in which a person, the subject of a special verdict, may wish to appeal. Without this particular provision the right of appeal might be said not to exist in respect of what is, in truth, a verdict of acquittal. We are not confident that these two sections of the 1968 Act do not in fact militate against the appellant's submission as to the meaning of "acquitted" in section 5A, rather than in favour of it. However, we do not think that they are decisive, or indeed of great assistance either way.
13. As Saunders J pointed out during argument, a person who is the subject of a verdict such as this would be able to plead autrefois acquit, if it was sought to re-indict him in respect of the same offence. By contrast, as the Recorder of Leeds retorted in the same exchange, however, if a person found unfit to plead or stand trial is found to have "done the act", he can be re-tried if his mental health recovers.
14. This contrast would suggest that the special verdict is a true acquittal, whereas a finding that a person unfit to be tried has "done the act" is not. This may lead to the result that the restraining order jurisdiction cannot be exercised in respect of a person subject to this latter type of finding - a point which we do not decide. However, we do not think that this possible lacuna should dissuade us from holding that a special verdict of the type returned in this case is an acquittal for the purposes of section 5A of the 1997 Act. As Toulson LJ pointed out in the Mark Smith case, the drafting history of this Act has not been a happy one and it would not be surprising, therefore, if some lacunae did not appear from time to time.
15. Further, it seems tolerably clear that for an order to be made under section 5A the offence in respect of which the accused is acquitted does not need to have been an offence under the 1997 Act itself. Sections 5 and 5A of the Act, in their current form, are the product of the Domestic Violence, Crime and Victims Act 2004. That Act removed from section 5 the limitation on making restraining orders only on conviction to cases of convictions under section 2 and 4 of the 1997 Act. Therefore, when the two sections in their present form speak of conviction/acquittal of an offence, there is no reason to think that either section continues to be so limited.
16. We do not agree, however, with the further submission for the appellant (to be found in paragraph 27 of the "grounds and submissions on appeal" document) that the wording indicates that the Act was not to apply in special verdict cases. That submission is based upon the contention that it was the 2004 Act which made a substitution of a new section 5 in the 1964 Act, empowering the court to deal with persons found not guilty by reason of insanity or unfit to plead. It is submitted that Parliament did not at that stage extend the application of section 5A to special verdict cases, when (if that had been the intention) express provision could have been made. However, it seems to us that the present section 5 of the 1964 Act is merely the re-enactment with amendments of a provision that has appeared in that Act from its inception. It provides for the admission of relevant persons to hospital (the original Act), the making of guardianship, supervision or treatment orders and absolute discharges (the 1991 amendments) and hospital orders, supervision orders and absolute discharges (the 2004 amendments). The provision in section 5A of the 1964 Act (Orders made now or by virtue of section 5) were with consequential matters arising out of the orders provided for in section 5. The introduction of the further power to make restraining orders on conviction or acquittal by the 1997 and 2004 Acts did not, as it seems to us, call for further amendment to section 5 of the 1964 Act.
17. We note and accept the submission made by the appellant that the law on statutory construction imports the "principle against doubtful penalisation": see Bennion on Statutory Interpretation 5^th Ed. P. 285 and the words of Lord Bingham of Cornhill in R v Z [2005] UKHL 35 at paragraph [16]. However, we do not see this as a case of doubtful penalisation. We consider that the wording of section 5A of the Act is sufficiently clear to confer the relevant power to impose a restraining order in the circumstances of this case, if the facts suitably justify it.
18. Finally, as it seems to us, it is of significance that in Mark Smith (supra), while the present point does not appear to have been expressly taken, it would be odd to think that there was such a fundamental objection to the making of a restraining order in a special verdict case as is now contended, when (after a careful analysis of the provisions of the 1997 Act) Toulson LJ saw no such objection. The appeal against the order in that case succeeded on other grounds.
19. It does appear, however, that the analysis of the 1997 Act in that case points to a different objection to the order in this case. In paragraph 29 of the judgment, the court indicated the matters of which the court must be satisfied before an order can be made. Toulson LJ said this:

"There are other fundamental problems with the order. Since the purpose of such an order is to protect a person from harassment by an acquitted defendant, the court must first be satisfied that the defendant is likely to pursue a course of conduct which amounts to harassment within the meaning of s1. Pursuit of a course of conduct requires intention. There was no basis for finding that there was a likelihood of intentional conduct by the defendant involving mental or physical oppression of the victim by persistent interference or intimidation. We recognise that a person might, by reason of a mental illness, set about a course of conduct amounting to harassment. If so, the fact that the underlying cause of the conduct was a mental illness would not prevent it from amounting to harassment, by reason of s1(2): SPC [2001] EWCA Crim 1251. But that is another matter. Mr Smith had no intention of doing anything which would amount to harassment of anyone."

20. It seems, therefore, that the court has to be satisfied that that the defendant is likely to pursue a "course of conduct" amounting to harassment within section 1 of the Act. As already noted, there is no provision parallel to section 5 (2) conferring a power to make an order to protect a victim from conduct which "will cause fear of violence". The statutory prohibition under section 1 is in respect of "a course of conduct…which amounts to harassment…". Section 7 provides that a course of conduct must involve,

"(a) in the case of conduct in relation to a single person…conduct on at least two occasions in relation to that person; or

(b) in the case of conduct in relation to two or more persons…conduct on at least one occasion in relation to each of those persons"

In the present case, terrible though the events of 20 October 2011 were, there was no relevant "course of conduct" in either sense. The incident was a single one and did not satisfy the requirements of the Act as explained by Toulson LJ. Further, the judge recognised in his sentencing remarks that the appellant was not suffering from the disability that pertained at the time of the attack on his daughter. It could not, therefore, be said that repetition, even of a single act (as opposed to a course of conduct) was "likely". It might also be added that the judge appears to have invoked the jurisdiction "as an adjunct to the Mental Health Act", but as explained in Mark Smith, that is not the function of this statutory power: see paragraph 34 of the judgment.

21. Mr Connor for the Crown did not advance any sustained submissions in opposition to those of Mr Beharrylal on either the construction point, as to the meaning of "acquitted" in section 5A of the 1997 Act or as to the application of the test propounded by Toulson LJ in Mark Smith as to the need to demonstrate the likelihood of a course of conduct amounting to harassment. He confined himself to emphasising to us the appellant's mental health history and the possible consequences if his health relapsed, as it has done in the past.
22. We have had those submissions in mind and have carefully considered the helpful reports from the local authority Social Services that were before the judge, together with the addendum report and update provided for the present hearing. However, we do not consider that that material enables us to say that the legislative test laid down in section 5A was satisfied in this case.
23. It is clear that the learned judge was understandably concerned as to the limits of his powers in the absence of sufficient medical evidence to warrant the making of a hospital order. We share his concerns about this and about what avenues might be open for the purpose of preventing any apprehended future danger to MJ and/or JJ. In our judgment, however, the law is not powerless to deal with such dangers and we return to that below. We would add that the judge made the order without the benefit of this court's analysis of the Act in the Mark Smith case, which we consider to be decisive of this appeal. That case was decided on 29 November 2012, some eight days after the judge's order.
24. In view of our conclusions on the permissible ambit of the Act, it follows that the restraining order in this case must be quashed and it becomes unnecessary to consider the other grounds of the appeal. However, we would add that there would appear to be force in the appellant's submission that the order should not have been made restraining the appellant from contact with EJ, his former partner, whatever order may have been appropriate in respect of the children. It is clear from the decision of this court in Picken [2006] EWCA Crim 2194 that an order should not be made without finding out the views of a person in EJ's position. Indeed, the order made was very wide indeed, covering a wide class of person in respect of whom no unacceptable conduct had been demonstrated on any occasion and in respect of whom no apprehended danger was demonstrated.
25. In this regard, it is also to be noted from the decision in the Mark Smith case that the test for the imposition of a restraining order is one of necessity. At paragraph 30 of the judgment, Toulson LJ said

"Further, the power to make an order under s5A is circumscribed by the important words "necessary…to protect a person from harassment by the defendant". The word "necessary" is not to be diluted. To make an order prohibiting a person who has not committed any criminal offence from doing an act which is otherwise lawful, on pain of imprisonment, is an interference with that person's freedom of action which could be justified only when it is truly necessary for the protection of some other person."

26. It is necessary, therefore, for any order to be tailored to the precise requirements of the individual case. We recall, in this respect, the decisions in this court concerning the need for precision and careful formulation of Sexual Offences Prevention Orders – a jurisdiction in which similar considerations arise. While, not underestimating the enormity of what occurred to MJ at this appellant's hand, the act was committed by that girl's father while suffering from extreme ill-health and it is not to say that all relationship between father and daughter should be cut off indefinitely, without regard to the possibilities of supervised or indirect contact. The five year duration of the order in this case, given the children's ages, might preclude any sensible resumption of a relationship between parent and child. These are matters which must be addressed where a restraining order of this type is contemplated. We accept Mr Connor's submission to us that he endeavoured to restrain the more extreme suggestions initially advanced by the local authority as to the possible contents of the order. However, the wide order that emerged seems to us to demonstrate the difficulty of framing such an order in the context of a sentencing hearing in the Crown Court. On the other hand, Mr Beharrylal said to us on instructions that EJ had expressed willingness to enter into a suitable agreement with the local authority to ensure the safety of her children in the light of the understandable concerns.
27. These practical difficulties and possible solutions seem to us to point the way forward in this case. In so far as the position of the two identified children MJ and JJ are concerned, it seems to us on the facts of this case, that concerns as to their welfare would be more properly addressed either by suitable agreement between the mother and the local authority or, in default of agreement, by the family courts in exercise of their jurisdiction under the Children Act 1989, including the powers in section 38A of that Act.
28. For these reasons, this appeal is allowed and the restraining order is quashed.