CATHLEEN WILLIAMS v and: [2001] EWCA Civ 197

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
(Her Honour Judge Pearlman)
[2001] EWCA Civ 197Case No B1/2001/0171Venue The Royal Courts of Justice, The Strand, London WC2A, Monday 12 February 2001
Between
CATHLEEN WILLIAMSPetitioner/Respondentand:ANTHONY WILLIAMSRespondent/Appellant
Before
The President of the Family DivisionDame Elizabeth Butler-SlossLady Justice HaleLady Justice ArdenMR J JAMES (instructed by Lawrence Davies & Co, 90 Lillie Road, London SW6) appeared on behalf of the AppellantMR M OTWAL (instructed by Kaim Todmer, Herbert Morison House, 195 Walworth Road, London SE17) appeared on behalf of the RespondentMR J AGEROUS (instructed by the Official Solicitor) appeared on behalf of the Interested PartyDate 12 February 2001
[1]Monday 12 February 2001 THE PRESIDENT: This is an application for permission to appeal out of time by Mr Williams in a case with a very considerable history. He is at present serving a sentence of sixteen and a half months imposed by Her Honour Judge Pearlman on 4 August 2000.[2]The background of the case, very shortly, is this. Mr Williams is now 29. In 1997 he started to live with, and then married, his present wife. They had a child, the only child of the couple, but she had three elder children who lived with her. Mr and Mrs Williams lived together for a very brief time, and separated in April of 1998.[3]Throughout the period since the separation there have been problems between the couple. They arise from the state of mind of Mr Williams, which is bordering on coming within the Mental Health Act, if it is not in fact within it. He undoubtedly has considerable personality problems: whether or not they amount to a personality disorder is another matter. He may or may not be schizophrenic. He had undoubtedly abused a variety of drugs, mainly cannabis but also, at different times, amphetamines, methadone and crack cocaine. He has also taken alcohol to excess. The variety of drugs which he has taken, together with alcohol, have masked his undoubted personality problems so that it has been extremely difficult for the medical profession to work out whether or not he has a mental health condition coming within the Mental Health Act 1983.[4]What seems to be clear is what was said by one of the consultants last year, Dr Herst; that he is impossible to manage in the community. Over the period from towards the end of 1999 through to March 2000 Mr Williams engaged in a series of both troublesome and violent episodes at the house of his wife and children. A non-molestation order was made on 4 November 1999 with a power of arrest attached. The outstanding examples of breaches were that on 9 February 2000 he was found stamping on the top of his wife's car, and on 6 March 2000 he attacked his wife in the former matrimonial home, when he cut her left hand with a Stanley knife and she had to have considerable surgery to repair it. Thereafter he made a series of threats to kill, and on 24 March he attempted to enter the house and tried to steal her bag and her keys. At different times he has engaged in a degree of self-harm. There have been a number of possible suicide attempts. Whether they were intended as suicide or not it is difficult to say. Certainly he cut his wrists on more than one occasion. He was arrested in March 2000 and has been incarcerated ever since.[5]There are been four separate reports on Mr Williams. The first was in Pentonville, by Dr Herst on 12 April 2000. Dr Herst said that he had antisocial personality disorder, and it was he who said that he was out of control. On 6 June 2000 Dr Kahtan said that he was a paranoid schizophrenic. On 13 July 2000 Dr Maginn said that he had a personality disturbance but questioned whether it was mental illness. On 10 January 2001 Dr Herst, in a short, standard-type prison medical report, said that he was now capable of managing his own affairs, there was no current evidence of mental illness and his schizophrenia was being controlled by drugs. I will not trouble today to go through the various reports, but in many areas they are in conflict and it is extremely difficult to ascertain the present state of health of Mr Williams.[6]There have been a number of orders of judges. Mr Williams was arrested on a number of occasions prior to 24 March 2000. He has been several times remanded in custody. He was discharged in January 2000 by His Honour Judge Tyrer because the wife did not pursue the allegations. There were various breaches, as I have mentioned, in February and March 2000 and on 24 March 2000 he was arrested. He was remanded to Pentonville Prison and that is when the first report came from Dr Herst. Legal aid was granted to him in April 2000. He was again remanded in custody, when the psychiatric report of Dr Kahtan was obtained. In June Her Honour Judge Pearlman adjourned the case again and remanded him in custody. Again in June he was remanded in custody. The Official Solicitor was invited to represent him. The Official Solicitor has attended on subsequent occasions but has not yet accepted the invitation to represent him. In July there was the psychiatric report of Dr Maginn. On 19 July 2000 Mr Recorder Turcan directed that further information should be provided as to his state of health; whether it came within the Mental Health Act; and whether it came within the appropriate section of the Mental Health Act so as to provide the basis for making a hospital order or an interim hospital order. For some extraordinary reason, the direction of Mr Recorder Turcan has never been complied with. He was again remanded in custody until 4 August 2000.[7]On 4 August Her Honour Judge Pearlman found herself placed in a considerable difficulty. She was under the misapprehension that Mr Williams had been remanded under section 35 of the Mental Health Act 1983 and that her powers under the Family Law Act 1996 were under that section of the 1983 Act. Therefore, since there had been a twelve-week remand in total, she believed that she did not have the power to remand him any further, although at that stage there still were not adequate reports as to what was his state of health nor how best to move forward for his sake and, indeed, for the sake of the community at large. Under the misapprehension by this very experienced judge that she was not able to remand him in custody any longer, she decided that she had to bite the bullet and make a decision on the admitted contempt, particularly the serious injury to the wife caused to her hand by the Stanley knife. Therefore she made the order. Contempt was found proved, as it clearly was and was admitted, and she sentenced Mr Williams to imprisonment for sixteen and a half months.[8]In my judgment her view of her powers was incorrect. Section 48 of the Family Law Act reads:
"(1) If the relevant judicial authority has reason to consider that a medical report will be required, any power to remand a person under section 47(7)(b) or (10) may be exercised for the purpose of enabling a medical examination and report to be made. (2) If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judicial authority remands the accused in custody. (3) If the relevant judicial authority so remands the accused, the adjournment must not be for more than 3 weeks at a time."
[9]That does not have an end date. Consequently, as I read the section, the court may continue indefinitely to remand for three weeks at a time someone who is remanded to prison, and the twelve week requirement under section 35 of the Mental Health Act does not apply to section 48(1) of the Family Law Act 1996. Consequently she was wrong in law (as I said, most unusually for this experienced judge) and we cannot allow the order to stand.[10]What in fact Judge Pearlman would have done with this appellant I do not know. I feel that she would have been unlikely to have sentenced him to imprisonment if she could have had the opportunity to remand him further. But she did not take the opportunity to consider whether it was right to sentence him because she felt that she was obliged to, and that there was no other step that she could take.[11]Consequently, I would allow the appeal and set aside the sentence of imprisonment. But I warn Mr Williams that if he is fit to conduct his affairs, if he is not suffering from any mental illness or, in particular, from a mental illness that is capable of being helped by the medical profession, the question of the serious contempt of March 2000 is still outstanding and may have to be dealt with, either by this court or by another court. But for the time being, I for my part am satisfied that it is absolutely crucial that at this stage we obtain suitable reports to be able to decide what is best for him for the immediate future, with a view to seeing if he can get proper treatment. If he can, that treatment might save both him and the community from further serious episodes in the future.[12]Mr Jones, who has represented Mr Williams today through legal aid, has had a difficult time as have those behind him because after the decision of Judge Pearlman there was no appeal. There is an appeal as of right in relation to liberty of the subject. Legal aid was sought for an appeal. Astonishingly, since this was an applicant potentially under a disability, sentenced to imprisonment in the circumstances in which he was, with an argument about whether or not the judge did or did not have the power to remand further, legal aid was refused. Fortunately, on appeal it was eventually granted. Mr Williams' own lawyers then issued the proceedings for appeal out of time. For my part, I have no difficulty in giving permission to appeal out of time, and I have no doubt that my Ladies agree with me about that.[13]In the meantime, those representing the Official Solicitor, whose position has been uncertain and who has not become the litigation friend, have indicated to us today that the Official Solicitor would be content to stay in the case and to assist in obtaining the appropriate reports. I am, I have to say, somewhat disturbed that, although the Official Solicitor was not technically the litigation friend between August and December, nothing was done for this man who was, of course, then in prison. I am not saying that it was not right he should be in prison, but clearly it was not right that he should be in prison as a result of the order of Judge Pearlman in the circumstances I set out. I would have thought it would have been more appropriate for the Official Solicitor to come in at that stage and indicate the importance of getting this matter before the Court of Appeal as a matter of some urgency in weeks, rather than the considerable number of months it has taken the Legal Services Commission to allow the appellant to get before this court. However, I am grateful to the Official Solicitor for saying, despite his reservations, that he should remain in the case. I think his reservations as to whether or not it is appropriate to be a litigation friend ought to be put to one side, because there is a real danger here that this man does not know what he is doing. Mr Jones, who appears for him, has indicated today that Mr Williams, who arrived late but is here in court, has given two entirely contradictory instructions to Mr Jones as to what he would wish to be the outcome of his case. It may well be that he does not have an understanding of what he is facing or the circumstances in which he comes before this court. It may well be that the psychiatric report may indicate the difficulties that he is under in this litigation.[14]For the future, we are anxious that we can arrange for this man to have the appropriate reports to decide what to do with him next. If he is fit to understand what is going on; if he does not have any psychiatric illness which is inhibiting his understanding; if he does not have any illness that is capable of any sort of amelioration by treatment, then on the next occasion the court will have to decide what to do with him. But if he does display real problems which the medical profession believe can be appropriately dealt with in hospital, then it will be a matter as to whether there should be a hospital order or an interim hospital order. Under section 48(3) he can only be remanded in custody for three weeks. Consequently it would seem appropriate that he should be remanded by this court, to return to this court in three weeks' time; that is to say, 5 March. We shall try and get together the same court for that occasion, although we will not be, on that occasion, in the same constitution during that week.[15]In the meantime, the order that we would want to have put in place would be for two reports, one to be from a consultant authorised under the Mental Health Act, with a view to seeing whether or not he is a suitable subject for remand to hospital, or an interim hospital order, or a hospital order. If either of the latter two is to be dealt with on the next occasion, it would be necessary to have two medical reports, and consequently that would form part of the order. If there is to be either a remand to hospital or a hospital order of either sort, it will be necessary that there should be a bed available, and preferably that the consultant who would be in charge of Mr Williams' case should be one of those writing the report; or, in any event, if not one of those writing the report, at least to indicate that there would be a hospital bed ready and waiting for him. If the consultant cannot do that, it will then become a matter for the health authority of his area to indicate to this court where a suitable bed would be found for him in order that we could remand him to hospital. Which of the various measures that might be taken is the most appropriate we cannot tell at this stage until the reports have been provided and, if it is appropriate, a bed has been found. It appears from last year's reports that the bed provided would have to be in a medium secure unit.[16]So for the time being, for my part I would allow the appeal, set aside the order of Judge Pearlman and replace it with an order remanding the applicant to prison for three weeks for the purpose of providing the appropriate medical reports. He will come back on 5 March, when we will consider further what is the next stage. We hope that by that time, if he is appropriate for a hospital bed, that a hospital bed in a suitable place will by then be found for him. We would, I must say, be very concerned if the health authority had not found for him an appropriate hospital bed, if one is needed, by 5 March.

LADY JUSTICE HALE:

[17]I agree. I would urge the official solicitor, who has kindly agreed to assist the court in providing the reports that the court requires, in this difficult situation to impress upon those providing those reports the urgency of the matter. Dr Kahtan, who made the report dated 6 June 2000, recommended immediately a transfer to hospital under section 48 of the Mental Health Act 1983. That is appropriate where somebody is remanded in custody. Dr Maginn, who made a report dated 13 July 2000, made the same recommendation. Dr Kahtan took the view that, if Mr Williams were convicted of an offence so that a disposal then became appropriate, he would recommend a hospital order under section 37 of the Mental Health Act 1983 under the category of mental illness. Dr Maginn was less clear that this was the appropriate diagnosis, but she recommended that, if convicted, he should be admitted under an interim hospital order under section 38 of the Mental Health Act 1983.[18]We therefore have, and had in the middle of last year, a degree of agreement between the doctors as to what was then the immediate need of this person. The only thing then required to be done was to find a bed. It is in the highest degree unfortunate that those who were assisting the court or representing the appellant were not able, for whatever reason, to file such a report in time; but it is now urgent that such a report is made.

LADY JUSTICE ARDEN: For the reasons given by the President, I would allow this appeal and make the further orders which the President has indicated, including the order to allow the appeal out of time. I agree also with what has fallen from my Lady, Lady Justice Hale.

[20]Like the President, I am extremely surprised that the reports ordered by His Honour Judge Tyrer on 14 July were not forthcoming. We have had no explanation for that. The absence of report was, indeed, the cause of difficulty for Her Honour Judge Pearlman. The appellant, Mr Williams, had by then been remanded in custody since March 2000.[21]In addition, like the President, I am surprised by the position adopted by the Official Solicitor. The Official Solicitor was invited to act as litigation friend by His Honour Judge Tyrer on 28 June 2000. We are told that the Official Solicitor has not been appointed as litigation friend, although I notice that the Official Solicitor's application is to be discharged as litigation friend. As I see it, the official solicitor should, as the President said, have brought this matter back to the court at a much earlier point in time, especially if the Official Solicitor felt that his own position needed to be clarified.[22]In conclusion, I very much hope that this matter can be finally disposed of on 5 March 2001. I would be very concerned if that is not possible and there is no good reason advanced as to why it is not then possible.

ORDER

Permission to appeal out of time granted. Appeal allowed. The order of Judge Pearlman on 4 August 2000 to be set aside. The applicant to be remanded in custody for three weeks. The case to be restored to the Court of Appeal on 5 March 2001 at 10.00 am before the same constitution if possible. Two medical reports to be provided by the official solicitor and the appellant's legal advisers. Detailed assessment of the appellant's and the respondent's costs. (Order not part of approved judgment)

Cited in 1 later judgment