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
		2 March 2005

1. MR JUSTICE MOSES: This is a challenge to the decision of HHJ McGregor-Johnson at Isleworth on 24th May 2004. The decision that the judge made was that this claimant should be admitted to hospital pursuant to section 5 of the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act") and treated as if a restriction order had been made pursuant to paragraph 2(1)(b) of Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. The claimant was granted permission by the single judge to move for judicial review. The issue in this application is whether there was evidence on the basis of which the judge was entitled to conclude that the claimant presented a risk of serious harm to the public.
2. So far as the facts are concerned, they present a sorry picture for which the claimant is entitled to sympathy. He is now 27. He suffers from paranoid schizophrenia. The claimant faced criminal proceedings at the Isleworth Crown Court in respect of one allegation of burglary and one of attempted burglary which was said to have occurred on 27th October 2003. He was arrested at the scene. On 17th May 2004 he was found by a jury to be unfit to stand his trial. It is of note that this, in a long history of offending, was the first time that he was so found.
3. On 20th May 2004 a separate jury found that he had committed the acts alleged on 22nd October 2003. On 24th May he appeared before the judge to consider disposal. Dr Omar, a psychiatrist into whose care the claimant had been placed, gave evidence, both at the earlier trial as to whether he was fit to plead, and also at the disposal hearing.
4. The issue, therefore, before the judge on 24th May 2004 was the appropriate disposal for him pursuant to Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act. The direction he made was that reflected in section 41 of the Mental Health Act 1983. The statutory scheme with which the judge was concerned is to be found firstly in the substituted section 5 of the 1964 Act. This provides that the court may make an order that the accused be admitted, in accordance with the provisions of Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, to such hospital as may be specified by the Secretary of State (see section 5(2)).
5. Schedule 1 of the 1991 Act provides under paragraph 1 that an admission order to a hospital is sufficient authority for his detention in that hospital; and further provides, under paragraph 2(1):

"A person who is admitted to a hospital in pursuance of an admission order made otherwise than under section 14A of the 1968 Act shall be treated for the purposes of the 1983 Act --

(a) as if he had been so admitted in pursuance of a hospital order within the meaning of that Act made on the date of the admission order; and

(b) if the court so directs, as if an order restricting his discharge had been made under section 41 of that Act, either without limitation of time or during such period as may be specified in the direction."

6. That schedule, in other words, refers the court back to the provisions of section 41 of the Mental Health Act 1983, which provides:

"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order, and an order under this section shall be known as 'a restriction order'."

7. The principles to be applied in considering restriction orders have been identified by the Court of Appeal Criminal Division in the case of Birch [1990] 90 Cr.App.R 78 between pages 79 and 81. The court pointed out that the test of serious harm is not limited to personal injury, but emphasised that the harm must be serious. In those circumstances a high possibility of a recurrence of minor offences will not be sufficient. The court referred to the case of a recidivist burglar who might be described as an antisocial pest who had not since the 1991 Act been regarded as posing a risk of serious harm. The judge in the instant case was referred to those principles and referred to Birch in his ruling.
8. In his ruling the judge noted the test correctly at page 7 of the transcript and went on to outline a substantial record of convictions for residential burglary and two convictions for assault occasioning actual bodily harm. He referred to the medical reports, and particularly the hallucinations from which this claimant suffered, which included hearing commands to hurt people.
9. He then continued by referring to Birch and the proposition that harm is not limited to physical injury, and continued:

"It seems to me here that the risks, should the defendant be at large and not taking medication, are two-fold: one is of violence but the other is of returning to burglaries to finance a drug habit.

"I am satisfied that the combination of those two matters does indicate that if the defendant offends there is a risk of serious harm to the public, taken in that wide and, in my view, proper sense. Therefore, I am satisfied that it would be right to make such a direction."

10. He then made the direction to which I have already referred.
11. The issue, therefore, was whether it was necessary to protect the public from serious harm by making the equivalent of a restriction order. There was no dispute before the judge, and there has been no dispute in this court, that this claimant, by reason of his paranoid schizophrenia, presented a risk to the public; nor was there any dispute that a hospital order was appropriate. The question was whether there was evidence upon which the judge was entitled to take the view that it was necessary to protect the public from serious harm by making a restriction order.
12. The material before the judge consisted in part of a list of the convictions of this claimant. That list discloses frequent commission of burglaries dating back to a young age; but more recently offences of possession of drugs, back in 1998, escalating to an offence of violence -- namely, assault occasioning actual bodily harm -- at Golgledd Ceredigion Magistrates' Court on 26th April 2000. There were then further offences of burglary and drugs, but what is specifically significant is the deterioration in this claimant's behaviour in 2002. On 9th January 2002 at Carmarthen South Magistrates' Court he was conditionally discharged for threatening behaviour.
13. It is then noted that in April he was first admitted to St David's Hospital for three weeks and found to be in a psychotic state. He admitted that he had been taking commands, as it is put, and drinking heavily. The diagnosis of paranoid psychosis was made, coupled with multiple substance misuse. There were, in May 2002, further convictions for assault occasioning bodily harm at Carmarthen South Magistrates' Court. The facts were available to the judge and they disclose unprovoked aggression, consisting in part of punching a totally innocent driver as he sat in his motorcar.
14. The admissions to hospital then increased. In November, but a few months after that conviction, he was admitted again, suffering from auditory hallucinations. There were further admissions in July and August 2003, and in September 2003 he was admitted by police to the hospital and made there several attempts to assault the staff.
15. The burglaries in respect of which he was found unfit to plead led to further admission to hospital and there, it is recorded, there were unprovoked attacks on nursing staff. The nursing reports laid before the judge also spoke of a number of incidents where the claimant had been physically aggressive towards staff, other patients and property.
16. The medical reports of the doctors which led to the hospital order included a psychiatric report from Dr Omar, to whom I have already referred. He referred to paranoid psychosis characterised by paranoid delusions and auditory hallucinations from which the claimant suffered. It is of note that the claimant spoke of people telling him to harm people. The conclusion was that the claimant suffered from paranoid schizophrenia and there was a recommendation that he should be in hospital. A similar view was taken in the report from the other doctor, the consultant in forensic psychiatry, Dr Lomax, which again agreed with Dr Omar and reported that he did not think that the claimant had reached the threshold requiring a restriction order.
17. Nor did Dr Omar in the oral evidence that he presented to the judge. He was asked specifically by the claimant's counsel, who also appears before us, as to the issue of serious harm. He was asked about the violence in the past; namely, whether there had been any more explosive attack than throwing a few punches. The doctor said there had not and that he did not expect, if there was an attack, that there would be more than a few punches thrown. The doctor did not think that the claimant was likely to use a weapon or to try to strangle anybody.
18. It was on the basis of that evidence that it was submitted to the judge that there was no risk of serious harm, and it is on the basis of that evidence that the submission is repeated, in the context of judicial review, that that evidence did not entitle the judge to reach the conclusion that there was a risk of serious harm.
19. I disagree. It must be always recalled in the context of cases such as this that it is necessary for the judge to look to the future. Of course the evidence as to what had happened in the past provides a guide to the future; but it does not determine the nature of the risk, particularly in the context of an escalation of violence by one who suffers from paranoid schizophrenia and hears commands to harm other people. The judge was bound to consider the risk in the future and the nature of that risk, having regard to the past, but he was not bound to determine that risk solely by reference to the nature of the violence in the past. True it is that Dr Omar, looking to the future, expressed a view, but it is trite to observe that the judge was not bound by the view of that doctor.
20. It was necessary to consider the escalating violence coupled with the abuse of drugs, revealed not only in the history of the previous convictions, but in descriptions of this claimant's behaviour when detained in hospital. In my judgment not only was the judge entitled to take the view that he did that there was a risk of serious harm, but that that was an almost inevitable view, having regard to the evidence laid before him.
21. True it is that in the judge's ruling it appears that he was considering harm in a sense wider than that occasioned by physical violence. But reading the judgment as a whole, and looking at it in the context of the evidence laid before him and of the reports, it seems to me plain that the basis of the decision was that there was a risk of serious physical violence to the public, were there not to be put in place a restriction order.
22. In those circumstances I take the view that the judge's decision to impose the restriction order was amply warranted by the material laid before him and there is no basis for saying that he was not entitled to reach that view.
23. I would dismiss this application.
24. LORD JUSTICE MAURICE KAY: I entirely agree. The order will therefore dismiss the application for judicial review.
25. MR REID: My Lord, forgive my ignorance in this court. I am instructed to ask for legal aid taxation.
26. LORD JUSTICE MAURICE KAY: It has a different name. Do you have a certificate?
27. MR REID: Yes.
28. LORD JUSTICE MAURICE KAY: Certainly you may have it.