England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		22 October 2004

1. MR JUSTICE COLLINS: This is a claim for judicial review directed at a decision of District Judge Gray sitting at the Southend Magistrates Court in respect of an order made by him on 22nd August 2003.
2. The background, so far as material, is as follows. On 13th January 2003 the claimant stabbed his dog and killed it. The reason why he did it was, it would seem, because he believed that the dog was harbouring an evil spirit and it was necessary to stab the dog in order to enable the evil spirit to escape. It will be apparent from what I have said that this claimant suffered from mental illness. That mental illness is paranoid schizophrenia. The condition is, as will become apparent, susceptible to medication and at the relevant time, for whatever reason, the claimant was not taking the medication which he should have been taking and as a result was moved to stab and so kill his dog.
3. When he was first seen by his solicitors who were to represent him at the Magistrates Court, it was apparent to them that he was in no fit state to give them instructions. A report from a psychiatrist confirmed that he was still suffering from the schizophrenia to such an extent as made it impossible for him to give any proper instructions. The offence with which he was charged, namely causing unnecessary suffering to an animal, being one which carries a maximum sentence of six months' imprisonment, the matter could only be dealt with as a summary offence by the magistrates. What they did was to rely on the provisions of section 37 of the Mental Health Act. That, so far as material, provides by subsection (1):

"Where a person is convicted ... by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may be by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified."

The conditions in subsection (2) require the court to be satisfied:

"... on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either-

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment ... or

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under the Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."

Then subsection (3), which is the crucial subsection for the purposes of this claim, reads:

"Where a person is charged before a magistrates' court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case as being a person suffering from mental illness or severe mental impairment, then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him."

4. The magistrates on 2nd July 2003 had put before them the evidence relating to the claimant's mental state and the evidence, there being no possibility of disputing it, which was in the form of statements establishing that he had killed the dog. Accordingly, they decided that the claimant did do the act which was alleged against him.
5. They then purported to make what is described as an interim hospital order and that records that having heard the written evidence of two medical practitioners and complying with the provisions of the relevant section of the Mental Health Act, the accused was suffering from the mental disorder. They do not specify which precise form of mental disorder was the one from which he was suffering, but as I have said the medical practitioners spoke with one voice so far as that was concerned. Being satisfied that the conditions under section 37 of the Mental Health Act which were required to be satisfied for the making of a hospital order were satisfied, and that arrangements had been made for his admission, they ordered that he be detained in hospital in the meantime. As I say, that purported to be an interim hospital order, although it does not refer specifically to section 38 of the Mental Health Act 1983 which is the section which gives power to make interim hospital orders. It is perhaps fortunate that it did not refer specifically to section 38 because the magistrates had no power to make an interim hospital order under section 38. Section 38 subsection (1) provides:

"Where a person is convicted by a ... magistrates' court of an offence punishable on summary conviction with imprisonment ... "

and it is therefore plain that an interim hospital order can only be made if there has been a conviction and, as I have already read, section 37(3) provides specifically that the order under that subsection can be made without convicting the defendant.

6. There is power to remand to hospital for reports and that is contained in section 35 of the 1983 Act which provides:

"Subject to the provisions of this section, a ... magistrates' court may remand an accused person to a hospital specified by the court for a report on his mental condition."

Subsection (2):

"For the purposes of this section an accused person is-

...

(b) in relation to a magistrates' court, any person who has been convicted by the court of an offence punishable on summary conviction with imprisonment and any person charged with such an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise by the court of the powers conferred by this section..."

It is from that wording clear that the power to remand for a report under section 35 applies to someone in respect of whom section 37(3) applies, the magistrates having been satisfied that he did the act charged against him. I should say that the requirement to establish that the accused did the act does not import any question of mens rea. It is purely directed at the actus reus of the offence. As it happens, and this will be material subsequently, the offence with which he was charged is an offence of absolute liability. There is no mental element involved. Provided the accused did cause the unnecessary suffering, he is guilty of that offence. Accordingly, satisfaction that he did the act would amount to satisfaction that he committed the offence charged in the circumstances of this case. That is because, as Mr Clark on his behalf accepts, the defence of insanity would not have been open to him because there was, as I say, no mental element involved in the commission of this offence.

7. The matter came back, following an extension of what was described as the interim hospital order, to the court on 22nd August 2003. There were then available to the court further medical reports from the psychiatrists who had been concerned with him whilst he had been in hospital. The first of those was Dr Black, a consultant psychiatrist. He stated that fortunately whilst he had been in hospital he had made very good progress and he had complied very well with his treatment and was taking medication on a reliable basis. He had indeed spent several periods of leave from the ward at home on his own and those periods had lasted up to a week at a time and had passed without any untoward incident. He stated that there was no evidence when he saw the claimant on 31st July that he was acutely unwell, nor was there any evidence of current mental illness when the doctor saw him on 13th August 2003 when he made his report. There was no evidence of any delusional system nor of any hallucinations and he showed good insight into his illness and a willingness to cooperate with his treatment. But the doctor in his opinion stated this:

"Mr Bartram clearly suffers from mental illness in the form of paranoid schizophrenia. He has had several episodes of this illness. Unfortunately in the most recent episode he killed his dog. Fortunately his condition has responded well to treatment and his mental state is currently stable. He has had successful periods of leave from the ward.

Although [his] mental state is currently relevantly stable, obviously his history of repeated episodes of schizophrenic breakdown give cause for concern. It is most important that [his] state of health is monitored very closely and it is important that he receives adequate treatment should there be any sign of relapse."

He went on to point out that his condition was quite stable, he was complying with treatment and under normal circumstances he would probably have been discharged from hospital by then. He stated that whilst he believed that section 37 of the Mental Health Act might have been a suitable disposal earlier, he would find it difficult to recommend a disposal under the Mental Health Act now, partly because he was so much better mentally and partly because he had expressed a willingness to comply with psychiatric treatment and he recommended a community rehabilitation order with a condition of psychiatric treatment. What he does not refer to is the possibility of a guardianship order and I will come back to that in a moment.

8. The other report which was before the district judge was a report from Dr Seewoonarain, who also was a consultant psychiatrist. His report was dated 15th August 2003. He sets out in it the claimant's history and present condition. He deals with his mental health and received from him considerable information as to why the dog had been killed. He deals with his progress at the hospital and really covers the same ground as was covered by Dr Black. The defendant told Dr Seewoonarain that he had mental illness and accepted fully that he suffered from paranoid schizophrenia. He explained that his condition made him see things and hear things which might not be there. He was agreeable to staying in hospital and to allowing a change of medication, but would like to be discharged. He gave an undertaking not to drink alcohol or use illicit drugs and confirmed that he would keep outpatient appointments with his consultant psychiatrist and permit a community psychiatric nurse to see him on domiciliary visits. He was by then fit to appear in court, according to the doctor's view. He had made a significant improvement with treatment during his admission to the hospital and was currently symptom free, but he accepted that he suffered from paranoid schizophrenia. The doctor continues:

"Although he is keen to be discharged to his flat he is agreeable to staying in hospital for a few more weeks to enable his consultant psychiatrist to stabilise his mental state on a long acting antipsychotic preparation only."

The doctor advised the court that there should be a possibility of a community rehabilitation order and that it should carry a condition of psychiatric treatment, initially as an in-patient, and that Dr Black had agreed to be the named doctor for the purpose of ensuring that he continued to receive psychiatric treatment. As the doctor records, the advantage of recommending ongoing treatment as an inpatient as part of the order was that there was a small risk that his mental state could deteriorate as his medication was changed from tablet form to injection, in which case consideration could be given to detention under section 3, but once the section 3 order was rescinded the community rehabilitation order would allow long term supervision in the community. Again, no reference is made to the possibility of a guardianship order.

9. The one thing that is clear from both reports is that the claimant was still suffering from the mental illness, namely paranoid schizophrenia, which was under control at the time because of the medication which he was taking and which he was keeping to. The only changes from the situation before were (i) he was then not in a lucid state because the medication had not yet been able to stabilise him, and (ii) he needed to be kept in hospital for treatment and that was not going to be the case, certainly in the view of Dr Seewoonarain for very long.
10. Having considered those reports, the District Judge decided that the claimant was no longer a person for whom section 37 treatment was appropriate and that therefore what should happen was that he should be tried for the offence in the normal way, he now being in a position where he was fit to plead. What he decided to do was to require that a plea be entered and that the matter be tried in the usual way and it is against that order that this claim is brought.
11. We have the advantage of an affidavit from the District Judge which explains the basis upon which he decided to do as he did. He helpfully sets out in that affidavit helpfully the history, the relevant parts of which I have already referred to, and in paragraph 10, dealing with what happened on 22nd August, he says this:

"On 22nd August 2003 Mr Bartram appeared again before me represented by Mr Sampson. I received and considered reports from Doctors Black and Seewoonarain, both doctors approved under section 12 of the Mental Health Act 1983 in which they determined that Mr Bartram was no longer suffering from any mental illness within the meaning of the Mental Health Act and that it was not necessary to make any order under section 37 of that Act, thereby removing that option as a disposal open to the court. Furthermore, Dr Seewoonarain was of the opinion that when Mr Bartram harmed the dog the subject of the charge he knew what he was doing and that his actions were wrong. A plea of 'Not Guilty' was then taken from Mr Bartram and the case was adjourned at the request of Mr Sampson until 29th August for the defence to make enquiries regarding a possible defence. Mr Bartram was granted unconditional bail."

He records that he appeared subsequently before Justices and the matter was set down for trial on 30th September and that on 30th September an application was made by Mr Clark, who has appeared for the claimant before us, for the matter to be adjourned to enable an application for judicial review to be made of the decision of 22nd August.

12. For some reason the application was not received by the court, or if it was it was not recorded, and on 8th January 2004 the matter was relisted as no application had been made. Shortly after that, on 26th February, the Administrative Court gave notice that this claim had been made and the matter was adjourned, permission having been granted for this judicial review to be pursued.
13. The District Judge then goes on to consider the interim order and makes the point, which is clearly right, which I have already dealt with, that the magistrates should not have made an interim order under section 38 but should have remanded for reports under section 35. The practical effect, that is to say that the claimant was lawfully remanded to hospital, is not in issue.
14. I have already referred to the relevant passages in the reports of the two psychiatrists. It is quite plain that they do not state that the claimant was no longer suffering from any mental illness, indeed quite the contrary. Both make it clear that he was still suffering from mental illness but he was not showing any symptoms of that illness because of the medication which he was receiving. In those circumstances, as it seems to me, the magistrate was in error in considering that it was not necessary to make an order under section 37 because there was no option under section 37 open to the court. As I have already noted section 37 not only gives the power to make a hospital order, but also to make a guardianship order -- that is to say an order placing him under the guardianship of the local social services authority -- and the various provisions of such an order enable the local social services authority to monitor the individual who is the subject of the order. Section 8 of the 1983 Act provides that there may be the power to require the patient to reside at a place specified, the power to require him to attend at places and times specified for the purpose of medical treatment etc, and the power to require access to the patient to be given at any place where he is residing to any registered medical practitioner, approved social worker or other person so specified. While it is true that such an order would not contain the same sanctions as would be applicable to an order made by a criminal court, such as is referred to by the psychiatrists, it would provide controls and safeguards which should ensure that the claimant remained neither a danger to himself nor to anyone else. If there were signs that things were going wrong, then it would always be open to the relevant person to make an application under the Mental Health Act to ensure that he was, if necessary, returned to hospital.
15. Accordingly, I have no doubt that the magistrate was wrong to act as he did on the basis that he did not believe that there was any further power to act under section 37.
16. That would be sufficient to dispose of this case, but it does raise further points and since they were argued and raised before us, it is perhaps helpful that I should briefly deal with them.
17. It was submitted that the magistrate was not entitled to act as he did and that the only basis upon which he could reopen the matter, in the way that he suggested, was by using section 142 of the Magistrates Courts Act 1980. He, as he says in his affidavit, did not at any time consider the use of section 142. He states:

"[It] is and never has been, in these proceedings, relevant. I have always been and still am of the view that the justices acted correctly in law in proceeding on 3rd July 2003 to find that Mr Bartram ... 'did the act'."

He says that all he was doing was reverting to the usual criminal proceedings because by then there was no point in pursuing and indeed there was no power to pursue matters under section 37.

18. It seems to me that in reality he should, if he was considering reopening, have done so on the basis of section 142 of the Magistrates Courts Act 1980, which is headed "Power of Magistrates Courts to reopen cases to rectify mistakes etcetera". Subsection (1) provides:

"A Magistrates Court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make."

Subsection (2) provides:

"Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may ... so direct."

It is clear that subsection (2) cannot apply because, as I have already indicated, an order under section 37(3) is not a conviction. It is, however, capable of being covered by the words in subsection (1) because it is an order and it is also an order made when dealing with an offender. This court has so decided in R v Thames Magistrates Court ex parte Ramadan [1999] 1 Cr.App.R 386. That was a case in which Justices had made a hospital order under section 37(3) but had omitted to ensure, as they should have done, that there was a vacancy and when it came to trying to implement the order the hospital refused to accept the individual in question because there had been no prior confirmation that a vacancy existed. Accordingly, the magistrates rescinded the hospital order and the issue was whether section 142 enabled them so to do. The court decided that it did because offender within subsection (1) extended to someone who had been dealt with under section 37(3) and it was clear that the court took the view that the section 37(3) proceedings could be reopened and the whole question of trial could be reconsidered by using section 142.

19. That is obviously a sensible and practical means of dealing with a situation which could arise if, for whatever reason, it became apparent that there was no further purpose in using section 37. That arose where the hospital order was improperly made in the Ramadan case: it could arise if (perhaps this is less likely) there was no further mental disorder which enabled either a hospital order or a guardianship order to be made. But equally there might be a case where it would be in the interests of the accused to have the matter reopened because whilst he was unable to give instructions and was unfit to plead, the evidence which established that he had done the act could not be challenged. When his mental state recovered sufficiently to enable him to give proper instructions, it might be that it became apparent that he did indeed have a defence to the charge which was laid against him. Thus in such a case he might want the charge to be tried because he expected that he would be acquitted of it.
20. The finding under section 37(3), albeit not a conviction, would appear to be covered by the Rehabilitation of Offenders Act and thus would potentially remain as something against the person concerned because by section 1(4) of the Rehabilitation of Offenders Act 1974, we find this:

"In this Act, references to a conviction, however expressed, include references-

...

(b) to any finding (other than a finding linked with a finding of insanity) in any criminal proceedings ... that a person has committed an offence or done the act or made the omission charged;..."

An order under section 37(3) is not a finding linked with a finding of insanity.

21. Accordingly, as I say, quite apart from the Rehabilitation of Offenders Act, an accused person might take the view, and indeed it would be in the interests of justice that the matter charged against him should be tried in the normal way and he should be able to achieve an acquittal, if that is the proper outcome.
22. Accordingly, as it seems to me, that situation can be achieved, provided of course it is in the interests of justice that it should be, because that is the test that section 142 specifically requires. That, in my view, is the only proper route to be used in a situation such as this, or such as I have indicated, if it is considered to be in the interests of justice to reopen the matter.
23. Mr Clark mentioned before us that there was some suggestion that an order had been made by the magistrates in July which prohibited the claimant from owning animals. That is an order which could be made on conviction of the offence with which he was charged under the Protection of Animals (Amendment) Act 1954. But the power to disqualify from having custody of any animal is a power which only arises on conviction and if such an order was made (and I make it clear that there is nothing in the papers before us which indicates that it was) then it was not properly made because, as I repeat, the section 37(3) order is not a conviction. It is, I suppose, possible that that power might be considered as a reason in the interests of justice to reopen the matter. However, no one suggested that that was so before the magistrate and this claimant has no desire to possess any animal and he knows now, because he has insight into his condition, that if and only if he were to fail to take his medication and thus control his paranoid schizophrenia would there be any risk of any action being taken which was likely to cause suffering to any such animal.
24. In those circumstances, since what matters is the control of his condition and that will be achieved by any guardianship order which can be made, it does not seem to me that the existence of the power to disqualify is a good reason for requiring that the matter be retried.
25. I should say and Mr Clark accepts, that if it is to be retried the claimant will have no defence to the charge. On the other hand, the court would not need, for reasons I have indicated, to make any order or to impose any sentence other than the order which it is in the circumstances now empowered to make under section 37.
26. Unpleasant though the offence was, it is clear that this claimant committed it only because he was in the throes of paranoid schizophrenia at the time and thus it is appropriate that he should be dealt with in a way which is correct for those who have a mental disorder and he does not merit any form of punishment. What he needs is care and control so that he does not relapse and find himself in a position where he may be a danger to others.
27. For the reasons that I have given, this claim in my view must succeed and I would, if my Lord agrees, order that the decision of the District Judge be set aside and that he or the court (because it does not have to be him) proceeds to deal with the claimant in the terms of section 37 of the Act and to decide whether a hospital order or a guardianship order is the correct disposal of this particular case.
28. MR JUSTICE SILBER: I agree that this application should be allowed for the reasons stated by my Lord.
29. MR CLARK: I am much obliged to your Lordships. The applicant has been publicly funded. I would respectfully seek an order out of central funds in the usual way, to be taxed, please.
30. MR JUSTICE COLLINS: Yes. That seems sensible and appropriate.