2003/00282 Z4 
Neutral Citation Number: [2003] EWCA Crim 1052
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 27 March 2003
 B E F O R E:

MR JUSTICE SCOTT BAKER 

MR JUSTICE ASTILL 
 
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P. K.
(CLAIMANT)

-v- 

HARROW CROWN COURT  
(DEFENDANT) 
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MISS M MCINTOSH (instructed by Levenes Solicitors, Wood Green, London N22 8HF) appeared on behalf of the CLAIMANT
MR J D WHITLEY (instructed by Legal Services Department of Barnet, Enfield and Haringey Mental Health Trust)appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	MR JUSTICE SCOTT BAKER:  On 11th December of last year this applicant (as he now is) was made the subject of a hospital order under section 37 of the Mental Health Act of 1983.  He appealed against his sentence by leave of the single judge.  
2.	Mr Whitley, for the Crown, at the commencement of the hearing, drew the court's attention to sections 9 and 10 of the Criminal Appeal Act 1968, submitting that the court had no jurisdiction to hear the appeal.  
3.	The point arises in this way.  Section 9 gives the Court of Appeal (Criminal Division) power to hear appeals against sentence following a conviction on indictment.  That is not this case and one, therefore, turns to section 10.  Section 10 deals with appeals against sentence from the Crown Court in other cases.  Section 10(2)(a) reads as follows: 
"The proceedings from which an appeal against sentence lies under this section are those where an offender convicted of an offence by a magistrates' court:
(a) is committed by the court to be dealt with for his offence before the Crown Court..."   
It is unnecessary to read subsection (2)(b) and (c).  Subsection (3) provides for an appeal in specified cases.  It provides: 
"An offender dealt with for an offence before the Crown Court in a proceeding to which subsection (2) of this section applies may appeal to the Court of Appeal against sentence in any of the following cases:
(a) where either for that offence alone or for that offence and other offences for which sentence is passed in the same proceeding, he is sentenced to imprisonment or to a sentence of detention in a young offender institution for a term of six months or more [that is not this case]; or 
(b) where the sentence is one which the court convicting him had not power to pass..."   
That is not this case either, because the Magistrates' Court did have power to pass a section 37 order and, in fact, they committed the appellant to the Crown Court for sentence because they thought that it was a case where a restriction order under section 41 of the same Act might be appropriate.  The remaining provisions of subsection (3) are not relevant.
4.	Miss McIntosh sought to argue that this case does fall within section 10(3)(a) because, as she put it, a hospital order under section 37 is tantamount to a sentence of six months or more.  But she did not argue the point with any great vigour.  It seems to us plain that Mr Whitley's submission is correct that the court does indeed not have jurisdiction.
5.	This question was not drawn to the attention of the court at any time before the commencement of the hearing at 10:30 this morning.  There has been no opportunity to research whether there is any other provision that gives the court jurisdiction of which we are presently unaware.  But, it seems to us, on the face of it, that Mr Whitley's submission must be right.  In fairness to Mr Whitley, he made it clear that he was not taking the point in order to prevent the case being heard but simply because, as a jurisdiction point, he felt obliged to draw it to the court's attention.  It was entirely proper, in my judgment, that he should have done so.  
6.	Both sides, the Crown and the defence, are clear that the real issue in this case has to be resolved and that it has to be resolved today.  Four psychiatrists have come to court to give evidence.  The issues in the case ultimately depend on the view that the court takes of the evidence of each of them.
7.	In these circumstances, it seemed to the court that the appropriate way in which to proceed was for the court to reconstitute itself as a Divisional Court of the Administrative Court and to consider the issue by way of a deemed application for judicial review of the decision of the Crown Court.  It is in those circumstances that my Lord and I will now proceed to judgment in the case.
8.	Returning for a moment to the background.  On 23rd March of last year in the Hendon Magistrates' Court, the applicant pleaded guilty to assault occasioning actual bodily harm.  He was later committed for sentence under the Powers of Criminal Courts (Sentencing) Act 2000 and section 43 of the Mental Health Act 1983, with a direction that he be detained at the Dennis Scott Unit of the Edgware Community Hospital until disposal of the case.  The facts of the offence can be shortly stated and are as follows.
9.	The victim, R.K., and the applicant had known each other for many years.  On Thursday, 21st March of last year, Mr K. attended the applicant's home in Goldsmith Road, N11.  The applicant had requested his attendance in order to speak to him about an ongoing argument involving Mr K.'s family.  The applicant's home had been burgled a few days previously.  The applicant suspected that Mr K.'s family were responsible.  During the conversation, the applicant apparently became threatening and stated that he felt like kneecapping Mr K..  That is a fact that is denied by the applicant but has never been resolved, and it is unnecessary for it to be resolved.  
10.	At about five minutes to nine, Mr K. decided to leave because he was concerned about the applicant's attitude towards him.  As he was walking down Goldsmith Road he felt a thud from behind on his left leg.  When he turned round, he saw the applicant with a hammer in his hand.  The applicant then proceeded to hit him on the head and body with the hammer.  When he fell to the ground he also kicked him on the head and body.  He then walked away.  An ambulance was called.  Mr K. was taken to the Barnet General Hospital, where he was treated for a small scalp wound requiring six stitches and some cuts and grazes to his left shin.  It perhaps goes without saying that the injuries could very well have been significantly more serious.
11.	In the early hours of the following morning, the police forced entry into the applicant's home, but he was not there.  That same day, at about quarter to one in the afternoon, he went to Whetstone police station and handed himself in.  The officer asked what injuries the victim had, and the applicant replied: "I hit him with a hammer multiple times all over the body."  He was arrested.  When he was interviewed he made a full admission, repeating that he had hit the victim about ten times to the head and body.
12.	There are, in my judgment, a number of disturbing features about this case.  The first is that it is over a year since the offence was committed.  The applicant has been detained in a mental hospital since, I think, 23rd July of last year.  The second disturbing feature about the case is the dramatically different view between the psychiatrists who have given evidence before this court today and gave evidence to the Crown Court judge.
13.	Dr Annear says that the applicant is suffering from mental illness of a nature or degree that makes it appropriate for him to be detained in hospital for medical treatment.  That has consistently been his view.  That has also consistently been the view of Dr Naguib.  On the other hand, Dr Barrett can find no signs or symptoms of any mental illness.  Dr McClintock says, bluntly, that the applicant is not mentally ill and never has been.  He has expressed his disquiet about the manner in which the applicant has been treated by the psychiatric services.  One of those concerns, and this is also a concern of Dr Barrett, is that the applicant is being required to take what those two doctors describe as exceedingly high doses of anti-psychotic medication against his will when it is unnecessary for him to do so.
14.	Dr Heather McKee saw the applicant on 12th September 2002.  She found no evidence of a mental disorder of the nature or degree to warrant him being further detained in a psychiatric hospital.  She felt that the applicant's notes displayed no evidence of psychosis, and that a diagnosis of persistent delusional disorder, which had been made by Dr Naguib, was not substantiated.  
15.	Psychiatric examination came about because the probation officer expressed her concern about disturbance in the applicant's thought process.  There is no criticism to be made, in my judgment, of the probation officer for taking that view.  There were features of the applicant's background that did call for some further investigation.  
16.	The learned judge heard evidence from Dr Annear, Dr Naguib, Dr McClintock and Dr Barrett, all consultant psychiatrists, although Dr McClintock is the only one of the four who is a consultant forensic psychiatrist, albeit each of the other three has a considerable degree of experience and interest in that field.  The judge also had the report in written form from Dr McKee.  
17.	When he came to pass sentence, the judge said that he had listened to the evidence and read the reports, especially from Dr Naguib and Dr Annear who, as he put it, had been on the applicant's case from the start.  He noted that Dr Annear had seen the applicant only the previous day.  He went on to say that all the doctors were agreed that the applicant suffered from a mental illness.  He was plainly wrong about that because two of them did not think that he was mentally ill at all, three indeed if one counts Dr McKee, who did not  give evidence, but who had produced a written report.  
18.	The judge went on:
"What Dr Naguib and Dr Annear say is that it is one [that is the illness] of a nature and a degree, which makes it appropriate for you, necessary for you to be detained or kept in hospital for medical treatment.  That there is a bed available, we know and such treatment is likely to alleviate and prevent a deterioration of your condition.  It is [to] stop you getting worse and maybe get you better; that is always the hope and if it cannot get you better immediately, at least to give you some treatment so that when you come out in the community, you will take that treatment, if you are sensible to stop yourself getting ill again."  
He continued: 
"It is also in my view desirable that you are detained in hospital for your own safety and the protection of others and that is why I have been persuaded now on all that I have heard including that of those psychiatrists called on your behalf by Miss McIntosh because let us not forget, we do not take sides and the Doctors are not taking sides.  They do [not] represent the prosecution or defence. They represent the state and the patient's interests and they take all these matters into account just as I do.  
Sometimes they differ in their opinion but then I sit in the middle and try to find the proper way."  
He went on to say that the only alternative to a section 37 order would have been a custodial sentence.  He concluded that section 37 of the Mental Health Act was the best route for the applicant's improvement and for the protection of others.  He went on finally to say that he had to think long and hard, and that what had taken up most of his time was whether or not to impose a section 41 restriction order, which, in the event, he decided not to do.
19.	In my judgment, the judge fell into error in the manner in which he approached the medical evidence.  What he had here was two doctors whose evidence supported an order, under section 37 of the Mental Health Act 1983, and three doctors (two orally and one in writing) whose evidence did not.  There were dramatic differences in the evidence of the four doctors whom he heard.  In my judgment, it was incumbent upon the judge to explain in the course of his sentencing remarks why he accepted the evidence of Dr Naguib and Dr Annear and why, therefore, he rejected the evidence of Dr McClintock and Dr Barrett.  But he simply did not deal with that question at all.
20.	In these circumstances, it seems to this court that the only appropriate way for the matter to be dealt with is for the medical evidence to be considered afresh.  When the matter came before the Court of Appeal (Criminal Division) earlier this month, the court adjourned the application so that the four doctors who had given evidence in the Crown Court could attend to give evidence again.  
21.	We have had the advantage of hearing the evidence of four skilled and experienced professional men.  Each of them, I am entirely satisfied, has being doing his honest best to give this court the assistance of his expertise in how to approach this difficult case.
22.	Dr Naguib has 23 years experience, but is not, as I have already mentioned, a forensic psychiatrist, although he has a special interest in this subject.  He spent an hour talking to the victim last Tuesday, which conversation he told us fortified his belief about the applicant's paranoid behaviour.  He has not, however, had an opportunity to take up with the applicant what the victim told him in this hour long conversation.  He last saw the applicant some two weeks ago.  In his opinion, the applicant does not have schizophrenia as such, although he somewhat qualified this later in his evidence.  He said that in his view the applicant has a persistent delusional disorder which can be classified, as it were, as a subheading of a broad description of schizophrenia.  He accepted that he had taken into account hearsay sources of information when diagnosing mental illness.  
23.	If I may digress at this stage to say this.  Both Dr Naguib and Dr Annear have made contact with the victim to hear, as it were, his side of the story.  Both Dr Naguib and Dr Annear have regarded what he told them as a significant factor in reaching their diagnosis.  There has also I think been some contact with the probation officer, who, of course, had some direct knowledge of the applicant and also with the applicant's mother, who is able to give some account of events as seen through her eyes in the past.  Her position has, however, changed because although she initially felt that some psychiatric input was necessary for her son, she has subsequently backed off that view.
24.	Both Dr Barrett and Dr McClintock expressed extremely strong views that psychiatrists in these circumstances should not approach the victim.  As it was put by Dr McClintock, a doctor cannot act as an investigator as this blurs the boundaries:  "I would not have made contact with the victim.  He is not a diagnostician."  The plain implication from the evidence of both Dr McClintock and Dr Barrett was that the practice followed by Dr Naguib and by Dr Annear in the present case was highly undesirable.  
25.	For my part, I would endorse their view.  I cannot see any reason in ordinary circumstances why it would be appropriate for a doctor in such circumstances to begin making his own investigations by contacting the victim, or someone else in a similar situation, for his own account of events, especially if, as happened in this case, it was not possible for the applicant to give him the other side of the story.  
26.	Returning to Dr Naguib.  He accepted that the sources of information on which he relied were hearsay information.  It was put to him, and he accepted, that there was really a hierarchy of sources from which a psychiatrist in these circumstances ought to look to decide whether the applicant was suffering from mental illness.  This included, first of all, the interview; secondly, the inpatient assessment, the notes and discussions with the staff who were looking after him in the hospital; and, thirdly, other sources.
27.	He accepted that in the circumstances of this case one really obtained very little, if any, assistance from the first two sources, and that one was really down to the third source in finding any useful information at all.  It is generally accepted that in diagnosing mental illness, which is not an easy task in borderline cases, the usual route to overcome uncertainty is to have the patient assessed as an inpatient in a mental hospital.  That is what happened in this case.  But, in my judgment, the doctors are, in reality, no wiser after the applicant has spent many months in hospital then they were before he was admitted.  The plain fact is that on any objective assessment he has not displayed any signs of mental illness whilst in hospital.
28.	The problem with other sources, as illustrated in this case, is to assess the reliability of what the doctors are being told.  It is not only a question of the reliability of the facts that they are being told but also their interpretation of those facts.  In my judgment, it is perfectly clear that doctors in these circumstances are not bound by rules of evidence, so that they can only accept material that would be admissible in the courts; certainly, not.  They are entitled to look at the whole picture and, indeed, they should look at the whole picture.  But they have to exercise judgment over material which is of first, second or even third hand hearsay as to the weight that can be attached to it.  
29.	In my judgment the problem in this case has really come about because Dr Naguib and, more particularly, Dr Annear, who has really been the main doctor in respect of treatment of the applicant, has given far too much weight to material that is of an extremely dubious nature.  This late in the day, it is undesirable for me to go in great detail into all the matters about which I have particular concern.  But one example is to be found in a statement in Dr Annear's most recent report of 28th February of this year, when he says: 
"When [the applicant] first came into hospital, he had stated the tap water was poisoned." 
If, in truth, the applicant said that, that would be important evidence as to delusional belief.  However, no one has been able to draw attention to any contemporaneous record in the medical notes to that effect.  I would have thought that a matter of that importance would inevitably have been recorded contemporaneously in the very full notes that are before the court.
30.	When one goes back to one of Dr Annear's earlier reports, namely that of 9th October, there is another reference, on a slightly different subject, to checking that drinks were not contaminated, but that was in the context of the applicant being required to take medication that he did not believe he ought to made to have.  It is perfectly plain, it seems to me, that checking of the drinks that he was being provided with by the applicant were entirely in that context.
31.	Another matter arises from Mr Naguib's evidence, when he said this in his report of the 31st October:
"Another source of evidence brought to my attention this week was when one of my female patients at [the hospital] who had a brief encounter with Mr K. about twelve years ago.  She told me that Mr K. has kept her photo with him until the present time despite the fact that she had told him at the beginning of their encounter (twelve years ago) that she was 'not interested'.  She added that on one occasion he 'jumped on me' trying to kiss her and when she declined, he ended up smashing up a glass window.  She stated that after she stopped seeing him (after that incident), as she was frightened of him, Mr K. started to stalk a mutual friend who was married and has a child.  My female patient added that Mr K. was constantly harassing that other woman and on one occasion he had broken into her house.  That lady had to get an injunction against Mr K. to protect herself.  This is [said Dr Naguib] a very important new piece of information, which sheds light on another yet unknown aspect of Mr K.'s potential for violence and threatening behaviour.  It could also be carrying other supporting evidence of mental illness and needs further exploration.  The fact that Mr K. has kept my patient's photo with him for twelve years and that he brought it with him to the hospital not knowing that this patient is presently admitted, could raise several questions and deserves further exploration." 
It is true that the applicant did have a photograph of the this woman amongst his belongings, including a number of other photographs.  On the other hand, what is being spoken about here is second and third hand hearsay about events that occurred a very long time ago and which the applicant denies.  In my judgment, they are quite irrelevant to the very serious issue that the doctors had to decide, namely whether it was appropriate to detain him under the Mental Health Act.
32.	The difficulty in this case, as it seems to me, arose at least in part out of the use by the applicant of expressions such as "paranoid" and "mind games".  It appears that he has been using these expressions not in any medical sense, but in the way that they might be used by the man in the street.  Furthermore, he has used these expressions in such a way that Dr Annear, in particular, has concluded amounts to evidence of delusional beliefs.  But the conclusions of Dr Annear on this matter are to a very large extent dependent upon accepting accounts that he has been given by the victim rather than accepting what he has been told by the applicant.
33.	There has been a serious issue about the medication given to the applicant.  This is covered in Dr Annear's report of 9th October.  He said:
"[The applicant] refused to accept medication as authorised and prescribed, and so on 16th September 2002 arrangements were made to administer anti- psychotic zuclopenthixol acetate medium-acting injection in the anticipation he would thereafter accept oral sulpiride.  Instead he accepted sulpiride but in the form of tablets.  There was some indication of initial compliance, though he refused two further requests for interview by me to at least explain the medication and its effects.  It was considered likely that he was covertly non-compliant with medication and so the prescription was increased to sulpiride 600mg then 800mg x2 daily and in syrup form, together with [another drug] for unwanted [side] effects."   
34.	The evidence called by the applicant is to the effect that, first of all, it was inappropriate for the applicant to be given drugs at all; and secondly, that if he was given any drugs, oral sulpiride is an old-fashioned drug and that there are newer drugs which can more accurately be targeted at the problem which, in any event, the defence doctors did not think the applicant had; an atypical neuroleptic would have been a much better solution.  Furthermore, there was, in the view of the doctors called by the defence, no justifiable reason for increasing the dosage from 400mgs to 600mgs and then to 800mgs twice daily.  I am bound to say that, for my part, I am not convinced by Dr Annear's explanation as to why the dosage should have remained ever since last September at 800mgs twice daily.
35.	There is a dispute between the medical experts on both sides as to whether this is a wholly inappropriately high dosage, or one that falls within the ordinary ambit of what doctors might consider appropriate.  It does not seem to me that this court is in a position to resolve that issue.  On the face of it, the dosage of 800mgs does seem higher than one would have expected.
36.	In my judgment, the evidence of Dr McClintock and Dr Barrett, and I found Dr McClintock a particularly convincing and measured witness, was more impressive than the evidence of Dr Annear and Dr Naguib.  It really was Dr Annear rather than Dr Naguib who was, as it were, in the driving seat for the Crown's evidence.  Dr Naguib's involvement in the case has been of a rather lesser nature.  Dr McClintock was of the opinion that the applicant has never been mentally ill.  He has expressed considerable disquiet as to the manner in which his case has been handled.  It appears to be common ground that in considering the applicant's illness, if he has one, one can divide the symptoms that one looks for into two broad general categories: positive symptoms and negative symptoms.  
37.	Dr Annear put his case as follows.  His conclusion was that there was an accumulation of evidence and inferences from several sources and reports that the applicant has a mental illness either continuous paranoid schizophrenia with prominent and negative symptoms or alternatively, continuous residual schizophrenia with episodic paranoid exacerbation or schizophrenic spectrum disorder.  
38.	Dr Naguib accepted that there were no negative symptoms.  Dr Annear in his evidence said that there were negative symptoms but he did not regard them as prominent.  Negative symptoms can broadly be categorised as social withdrawal, blunting and restriction of effect, rigidity of ideation, amotivation, anergy and a past decline in work records.  But Dr Annear, although saying that the negative symptoms were not prominent, really rested his case on the positive symptoms: delusions of persecution and reference and inferred delusions of control, other thought interferences of delusional mood and auditory hallucinations.  
39.	The psychiatrists called by the defence made, in my judgment, extremely forcible points, that although reading carefully through the medical notes, no evidence could be found of anything to support the kind of positive symptoms that Dr Annear suggests the patient had.  He is of the view that the applicant's condition has lasted over a number of years and that it has manifested itself from time to time.  But really in order to support his conclusion, he has to draw inferences on the basis that what he has been told, in particular by the victim.  In my judgment, it simply is not justifiable to do that in this case.
40.	Dr Barrett said: 
"I think there are considerable problems with the diagnosis of paranoid schizophrenia which Mr K. has attracted.  It seems to have been based upon almost no signs and symptoms which I would myself accept, or which I would expect my peers to accept.  Many of the decisions regarding hallucinations and delusions seem to have been 'inferred'..."  
41.	Our attention has been drawn to a letter of 28th January of last year from Dr Sous, which was just a couple of months before the applicant's offence.  There were circumstances then which led to the Barnet Psychiatric Unit being called in as a result of a complaint by the applicant's mother.  Apparently, there was an argument between the applicant and his mother.  He chased her with a hammer after she had asked him to leave the house.
42.	In my judgment one has to view with a considerable degree of caution anything arising out of a dispute in this case between a mother and grown-up son, living in the same household, obviously in circumstances of some stress.  Although the applicant's mother was, in the earlier part of January 2002 and, indeed, subsequently, concerned that the psychiatric services should have some input into her son, she has since backed off from that position.
43.	But of some significance, in my judgment, is what Dr Sous had to say: 
"A 34 year old single man, being unco-operative, presenting with threatening behaviour towards his mother.  Other reported oddities of behaviour.  'Arranging things in a peculiar fashion.'  Previous contact with our services.  Currently no clear cut psychotic or depressive symptoms.  [Then these important words:] Not detainable under the Mental Health Act."
So in addition to three doctors who think that there is nothing wrong with the applicant's mental health, there was also another, Dr Sous, who took the same view in January 2002, albeit probably on pretty limited information.  
44.	Our attention has also been drawn to a letter written by Dr Annear on 10th January 2000, indicating that by the end of February of this year, that is a month ago, that Mr K., the applicant, would be in the position of bedblocking; the purpose of the letter being to try and persuade the Homeless Persons Unit of Barnet to provide the applicant with some accommodation.  The doctor's response when asked about that letter was that one has to anticipate the situation somewhat to make any progress at all with housing with the local authority.  He said he did not really mean that Mr K. would be bedblocking by the end of February, but if he had not written that kind of letter there was no prospect of Barnet finding accommodation.  That seems to me to be a sorry state of affairs.  If doctors do not tell local authorities the truth it will not be long before local authorities disbelieve them when it really matters. 
45.	So, drawing the threads together, where does that leave the evidence?
46.	In my judgment, Dr McClintock is right when he says there is no evidence of negative symptoms, a view supported by Dr Barrett and, indeed, by Dr Naguib (one of the doctors called by the other side).  I also accept Dr McClintock's evidence that such evidence as there is of positive symptoms is flimsy in the extreme.  In my judgment, Dr McClintock and Dr Barrett are right.  There simply was not sufficient evidence here to justify making an order under section 37 of the Mental Health Act 1983.  The evidence was not there, in my judgment, before the learned judge who heard this case, and the evidence is not there today from the doctors from whom we have heard.
47.	I regret to say that I have come to the conclusion that Dr Annear, in particular, has built up a picture in his own mind that there is much more here than meets the eye from the psychiatric view point.  I, for my part, have no hesitation in preferring the evidence of Dr McClintock and Dr Barrett.  
48.	In these circumstances, I would quash the section 37 order.  Since this court is acting by way of judicial review, we have no power to impose any separate penalty, but had we such power I would be strongly inclined to impose a conditional discharge for two years.  I would do so for these reasons.  It seems to me that this was an offence for which a sentence of immediate imprisonment was inevitable, had it been dealt with other than under the Mental Health Act.  But, bearing in mind, first of all, the period in custody in Wormwood Scrubs that the applicant served before he went to hospital under the Mental Health Act, and the very substantial period that he has been in hospital and detained there, it would be quite inappropriate to make any other order now that deprived him of his liberty.  
49.	It is not ultimately a matter for this court what penalty is imposed, but I hope that the Crown Court judge to whom, in my judgment, this case should be remitted, will bear in mind the views of this court, which has heard all the evidence today.  One of the advantages of a conditional discharge is that for the period that it lasts, which in my view should be two years, it will hang over the applicant and will remind him that if he transgresses again he is liable to be brought back and dealt with in a rather less agreeable way in the future. 
50.	MR JUSTICE ASTILL:  This was not a case of the judge choosing  between opposing experts.  He did not assess their evidence accurately.  He based his decision on an interpretation of the total medical evidence that was not possible given the differing views that they expressed.  
51.	For the reasons given by my Lord, I agree with his conclusions.   
(Bail granted with a condition of residence)