No: 200202774/Z3 
Neutral Citation Number: [2002] EWCA Crim 2772
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 25th November 2002
B E F O R E:

LORD JUSTICE BUXTON 

MR JUSTICE HOLMAN 
 
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R E G I N A 

-v- 
 
M. M. K. 
 
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MR A KHAN appeared on behalf of the APPELLANT

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J U D G M E N T
25th November 2002 
1.	MR JUSTICE HOLMAN: This is a renewed application for leave to appeal on behalf of Mr M.K., who is aged 34.  On 7th February 2002 at the Crown Court in Ipswich he pleaded guilty on rearraignment to common assault.  On 12th April 2002 in the same court he was sentenced to a hospital order under section 37 of the Mental Health Act 1983, coupled with a restriction order under section 41 of the same Act.  The restriction order under section 41 was made without limit of time.
2.	He applied for leave to appeal against, but only against, the imposition of the restriction order under section 41.  That application for leave was refused by the single judge, who considered that the sentencing judge had been entitled on the basis of the material before him to make a restriction order under section 41.  So the application for leave to appeal is renewed before us today.
3.	The short facts of the offence were as follows.  On 27th July 2001 members of the Community Health Team for the area in which the applicant was living in sheltered accommodation were concerned about a deterioration in his mental health.  They were trying to persuade him to go into hospital for in-patient treatment.  He was resistant to that and became agitated.  During the course of that day he went to a room where one of the community nurses was present.  He produced a knife from underneath his jumper and threatened her with it.  He pointed it at her head.  She attempted to restrain him and, whilst doing so, sustained a cut to one of her fingers.
4.	It is important to mention, as part of the background to the events of that day, that the applicant had recently suffered two severe shocks.  His mother had died and at about the same time his girlfriend had committed suicide.
5.	It is necessary to quote section 41(1) under which the restriction order was made.  That provides as follows:
"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 ..."
6.	We have already briefly described the nature of the offence itself.  We turn to the antecedents of the offender.
7.	He did have previous convictions, altogether for 22 offences.  Many of these were offences of theft and other forms of dishonesty, but within his record there was a conviction for criminal damage in 1989, for arson in 1990 and for robbery in 1990; so his history included offences of violence.  It is particularly relevant to mention that in 1984 he was convicted of an offence of intent to rob, when he had produced a carving knife and a hammer to the elderly lady running a small shop.  In December 1990 he was convicted of a robbery, when he had produced a knife to an assistant in shop premises at a garage forecourt.
8.	There was a pre-sentence report by a probation officer, Shayne Davis.  She referred in that report to the previous offending to which we have briefly referred and commented:
"Whilst there is a significant gap between those offences and the latest, the propensity for him to use knives does not appear to have diminished."
9.	She referred to his history of mental illness and said:
"To some extent, Mr K. has demonstrated that he can live in the community providing that the appropriate mental health services and support are available. ... However, the circumstances of this offence, his medical history and previous offending all highlight the danger that he still presents to the public.  Whilst he continues to use knives to intimidate and coerce others, then he will be assessed as presenting a high risk of harm to the public.  In my view, the risk can only be managed effectively and hopefully reduced through treatment and medication provided by the local mental health services."
10.	There were also before the court reports from four psychiatrists.  The first of those in time was the report dated 28th September 2001 by Dr Guly, who was and is one of the consultant psychiatrists under whose care the applicant is.  In her report she commented on his long history of contact with the psychiatric services, and the diagnosis of major mental illness since around 1993.  So far as the particular offence was concerned, she said that it was after the death of the girlfriend that things started to go wrong.  In the opinion and recommendations section of her report Dr Guly said:
"I am of the view that M.K. is suffering from a mental illness within the meaning of the Mental Health Act 1983, namely paranoid schizophrenia.  This illness is of a degree that warrants his detention in hospital, in the interests of his own health and safety and of the safety of others.  He requires in-patient treatment in conditions of medium security.  
M.K.'s past history, including his history of serious offending, suggests that he had a pre-existing personality disorder prior to developing the symptoms of schizophrenia."
11.	After referring, again, to the death of the girlfriend, Dr Guly continued by saying:
"I respectfully recommend to the court that consideration is given to a hospital order under section 37 of the Mental Health Act 1983.  I also respectfully recommend that consideration is given to the case being transferred to the Crown Court for a decision to be made in respect of a restriction order under section 41 of the Mental Health Act 1983 which, in my opinion, would result in greater protection for the public ..."
It should perhaps be stressed that that report and that recommendation dated from late September 2001.
12.	Two reports were then prepared by psychiatrists instructed on behalf of the applicant by his solicitors.  The first is a report dated 11th March 2002 by a consultant forensic psychiatrist, Dr Lock.  At the end of his report Dr Lock also expressed the opinion that the applicant suffers from a paranoid schizophrenic illness.  He continued, however:
"I am not of the opinion that Mr K. currently has symptoms of that illness of a nature or a degree, which would warrant his continuing detention in hospital. ...  
It is my opinion that Mr K. appears to have good insight into his illness.  He accepts he suffers from an illness and that medication is required.   It appears that he has always admitted himself informally to hospital when he was in the community and he has only been admitted compulsorily when transferred to hospital from prison ..."
13.	He concluded his report by saying:
"It is my opinion that he is not currently detainable under the Mental Health Act 1983.  I wonder whether a probation order would be the most appropriate way of disposing of the case ..."
So Dr Lock, for his part, did not consider that it was appropriate even to make a hospital order in this case.  Although he did not expressly address the question of a restriction order, it clearly followed that he did not consider that such an order should be made either.
14.	A further report was obtained on 13th March 2001 by a consultant psychiatrist, Dr Azuonye.  In his report he, again, agreed with the underlying diagnosis but said: 
"There is nothing to suggest that he poses either a risk to himself or to others."
15.	Dr Azuonye considered that at present the applicant was not sufficiently unwell to require treatment in hospital and that his care could be provided quite adequately in the community.  He concluded his report by saying:
"His recent illness has responded very well to treatment, and he has not shown any significant symptoms through most of the current admission.  He does not pose any risk to himself or others, and does not require in-patient treatment at all....  Insofar as Mr K. is not currently ill enough to require treatment in hospital, there is no basis whatsoever for any form of compulsory powers under the Mental Health Act, so the question of a hospital order (with or without a restriction order) does not arise at all."
16.	Dr Azuonye considered that the most appropriate outcome was a probation order with a condition of psychiatric treatment.
17.	Finally a report was prepared by a consultant forensic psychiatric, Dr Solomka, who, like Dr Guly, is based at the Norvic Clinic, and under whose care the applicant was and is.  This particular report, dated 2nd April 2002, was prepared at the request of the Crown Prosecution Service, but, as we understand it, Dr Solomka, jointly with Dr Guly, was directly concerned in the care of the applicant at the time.  In his report he commented that the suicide of the girlfriend had had a devastating effect upon the applicant and that he: 
"... agreed with other psychiatric assessments that M.K.'s relapse and aggressive and chaotic behaviour in the time leading up to the offence was in large part due to this very difficult bereavement."
18.	He agreed with the diagnosis of paranoid schizophrenia and gave a description of that in the case of the applicant.  He considered that:
"Whilst it is true that his symptoms are under control and he is displaying good insight and compliance with treatment, it should be remembered that this stability has been achieved under a very high degree of support, monitoring and supervision of Thorpe Ward at the Norvic Clinic.  It is one thing to say that he is mentally stable in such an environment, but quite another to assume that such stability will be maintained in the community.  My view is that there should be a phase of rehabilitative treatment, with gradually reducing restrictions and supervision, and with the gradual development of a community care package that will support Mr K. at his current level of stability following discharge.  The way this is done is by gradually increasing the amounts of leave and then allowing the patient to go on leave to the proposed accommodation where he will be discharged.  
My recommendation in this case is therefore that Mr K. be made subject to a hospital order under section 37 of the Mental Health Act 1983.  The purpose of this would be to provide a period of rehabilitation in a hospital setting before discharge can be arranged to appropriate accommodation with an appropriate community care package."
19.	Dr Solomka then addressed the question of a possible restriction order.  He said:
"I am perhaps less convinced than Dr Guly as to the necessity for such restrictions. I have some confidence in Mr K.'s ability to comply with a community care package after a period of rehabilitation at St Clements Hospital in Ipswich.  He has a history of good compliance with community treatment and overall engaged well with psychiatric community services. ... From my point of view therefore, I would be happy to accept him ... for a period of rehabilitation under section 37 of the Mental Health Act 1983 without restrictions."
20.	As we understand it, all four of those psychiatrists gave oral evidence at some time or another to the judge before whom the sentencing process was somewhat attenuated.  However, on the day of sentence, it was Dr Solomka alone who gave oral evidence to the judge.
21.	When passing sentence, His Honour Judge Downes said:
"The problem is that in the past, some years ago, you have from time to time used or referred to the use of knives.  One of the functions of this court is to try and make sure that nothing happens that might put people in danger, including you, because what seems to have happened on this occasion is that because you were upset at your girlfriend's unhappy experience and the fact that she died it obviously knocked you off balance. ...  
The evidence I have is that you suffer from a serious condition.  Therefore in your interests and everybody else's interest some sort of provision has to be made to make sure that people are safe when you get upset and that you are safe when you get upset. ...  
If there is a section 41 order in force, too, in order to protect people that means that if there are any problems in your life where you get upset and then behave in this way that worries people then they can bring you back to hospital for a time and help you.  That seems to me to be the way that will assist you most and will assist the public most, rather than putting you on probation and then allowing you to go immediately into the community, perhaps in a rather drastic and abrupt way, which would not actually assist you.  So that I propose to do in this case, and I hope it assists you, as well as everybody else, is to make a hospital order under section 37 and also a restriction order without limit of time."
22.	We observe that the judge did not expressly refer to the requirements of section 41 of the Mental Health Act 1983 and specifically to the requirement before a restriction order is made that it appears to the court that:
 "... it is necessary for the protection of the public from serious harm so to do ..."
23.	A restriction order under section 41 is designed to protect the public generally and it is not part of the justification for such an order that it may help or add to the protection of the offender personally.  Further, the judge did not expressly consider whether there was a risk to the public of "serious harm" if the restriction order were not made.
24.	In our view, the overall history that we have described and the balance of the psychiatric evidence did not justify making a restriction order in this case.  It is true that in late September 2001 Dr Guly had considered that a restriction order should be made, but all three psychiatrists who reported during March and April of 2002 did not consider that one should be made.  Indeed, the two psychiatrists instructed on behalf of the applicant went further and considered that there was no justification even for making a hospital order.  The treating psychiatrist, Dr Solomka, clearly did not go as far as that, but he, too, had considerable reservations about the justification for a restriction order.  In our view, such an order was not, by April 2002, justifiable on the facts and history of this case.
25.	We have today been shown a yet further report, dated 20th November 2002, again prepared by Dr Azuonye.  In that report he essentially refers back to the view that he had considered at the time of his earlier report, although we note that he is now saying that he would "perhaps" have recommended a hospital order, but not a restriction order.  At all events, there is nothing in that recent report which now adds any justification to there being a restriction order.
26.	In those circumstances we propose to grant leave to the applicant to appeal and then, treating this as the substantive appeal, to set aside the restriction order that was made on 12th April 2002.  There was no appeal from the hospital order itself, which will remain in force. 
27.	LORD JUSTICE BUXTON:  The application for permission to appeal is therefore granted.  The court treats this hearing as the hearing of the substantive appeal and allows the appeal to the extent indicated by my Lord, that is to say, that the restriction order under section 41 is discharged.
28.	Strictly speaking, since Mr K. is not present and has not been notified, the order will be that that order lie in the office for 14 days to enable him to consider whether he wishes to make a further application under the permission.  You, Mr Khan, not having sought anything other than the discharge of the section 41 order, will no doubt give him appropriate advice, but technically speaking it has to lie in the office for 14 days.
29.	You are appearing pro bono and we are grateful to you.  Since you have been successful the court makes a representation in respect of your appearance this morning.