P, R v [2003] EWCA Crim 2086

Case No 2003/03081 Z1

[2003] EWCA Crim 2086

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 4 July 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE KEENE

MR JUSTICE MOSES

MR JUSTICE SIMON

Between

R E G I N ACrown

-v-

Between

M A P

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MR HEATON ARMSTRONG appeared for APPELLANT

MR J GREENHOUSE appeared for CROWN

J U D G M E N T

[1]MR JUSTICE MOSES: This is an appeal brought with leave against an order of 16th October 2002 at Lewes Crown Court. The appellant was convicted and sentenced of an offence of making a threat to kill and ordered to be detained in hospital for treatment pursuant to section 37 of the Mental Health Act 1983.

[2]The facts can be shortly stated. The appellant approached a retired army officer on 10th June 2001 in the early evening and referred to a police officer, PC Chaffey, who he said had arrested him for drink driving. He said that that officer had handcuffed him and that he was going to kill that police officer. He elaborated on that to the extent that the retired army officer, very sensibly, reported the matter.

[3]The appellant denied it but, as we have said, was found guilty. The threats had a particularly distressing effect both on the police officer, who had indeed had dealings with this appellant, and his wife and family. It appeared that this was not the first time that the appellant had become obsessed at what he perceived to be a grievance against the police and particular police officers, and had, early in January 2001, been placed on probation for assault on a police officer.

[4]He was at the time 42 years old and medical reports, as a result of requests from those he had instructed, were sought. A medical report was obtained from Dr Stamps, who had last seen him in October 2002 but, more significantly, a report had been obtained from a Dr Warsi. He wrote in January 2003( in a report dated 28th January) saying that he was leaving his post on 17th January 2003. He had not seen this appellant since June 2000. Both reports described the depression of this appellant, together with paranoid features. He was apparently abusing alcohol so as to cope with his life. Both reports spoke of the appellant suffering from a mental illness susceptible of treatment in hospital.

[5]However, the report from Dr Warsi made it clear, as we have said, that he had not seen this appellant since June 2000, and indeed Dr Warsi spoke of his needing a full assessment in hospital.

[6]It is plain to us that the necessary requirements of section 37 were not satisfied. In those circumstances it was, in our view, not open to the Recorder to make an order under section 37. Section 37(1) requires certain conditions to be satisfied before an order made under that section is passed. Section 37 (2) provides:

"(1) The court shall not make a supervision and treatment order unless it is satisfied- (a) that, having regard to all the circumstances of the case, the making of such an order is the most suitable means of dealing with the accused or appellant; and (b) on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved, that the mental condition of the accused or appellant- (i) is such as requires and may be susceptible to treatment; but (ii) is not such as to warrant the making of an admission order within the meaning of Schedule 1 to this Act, or the making of a guardianship order within the meaning of the 1983 Act. (4) An order for the admission of an offender to a hospital shall not be made under this section unless the court is satisfied on the written or oral evidence of the registerd medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital ... and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. (7) A hospital order or guardianship order shall specify the form or forms of mental disorder referred to in subsection (2)(a) above from which, upon the evidence taken into account under that subsection, the offender is found by the court to be sufering; and no such order shall be made unless the offender is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of them."

It is quite plain from these provisions that what is required is an up-to-date assessment of a defendant so that a court may be satisfied as to his current mental condition at the time of sentencing, and as to his susceptibility to treatment at the time of sentencing. It is plain from Dr Warsi's report that he was not in a position so to satisfy the court. In those circumstance we take the view that an order should not have been made on the basis of that report from Dr Warsi.

[7]This court must decide what the appropriate method of dealing with this appellant is, having regard to the fact that it is not open to the court, pursuant to section 11 of the Criminal Appeals Act, to deal with him more severely then he was dealt with by the Crown Court. Mr Heaton Armstrong points out that this appellant has already been in custody for 190 days. He is currently in hospital (although he is free to come and go) and normally, unless the order was renewed, he would be free to go after six months: see in particular R v Beulah Birch

[1989] 11 Cr App R (S) 202

at 210. It is, therefore, contended that it would be wrong to deal with this appellant in any other way than to order his immediate release.

[8]We do not agree. We think that having regard to the gravity of this matter and the serious mental condition under which this appellant appears to be labouring, or to have laboured in the past, that it is most important before this court makes any final order as to the proper disposal of this appeal that an up-to-date report is obtained so that this court is in the best position possible to ascertain what the appropriate method of dealing with this appellant might transpire to be. In those circumstances, we think that the appropriate wayof dealing with this appellant is to adjourn this matter so that up-to-date reports can be obtained as to his current mental condition and as to his susceptibility for treatment. We do not think it would be appropriate to take any steps, without such up-to-date information, that would lead to his immediate release.

LORD JUSTICE KEENE:

[9]The formal order then of this court is that this appeal is adjourned. We direct that reports from two registered medical practitioners, qualified under section 12 of the Act, be obtained within 28 days, dealing with the appellant's current condition, for the purposes of section 37. One of those reports may be but need not be from Dr Stamps.

[10]We extend legal aid to cover the obtaining of those reports by solicitors for the appellant. There should also be a report from the Probation Service on the suitability of the appellant for a community rehabilitation order with conditions as an alternative to a hospital order. This appeal is then to be listed after 28 days from today but before 14th August 2003. It is not reserved to this constitution.

[11]MR GREENHOUSE: Is the Crown directed to attend on the second listing also?

LORD JUSTICE KEENE: Yes.

[13]MR HEATON ARMSTRONG: My Lord, excuse me for troubling you over practicalities.

LORD JUSTICE KEENE: No, certainly, please do.

[15]MR HEATON ARMSTRONG: I am concerned as to who should communicate to the probation service the need for a report?

[16]MR GREENHOUSE: My Lords, I can undertake to do that.

LORD JUSTICE KEENE: Thank you, Mr Greenhouse.

[18]MR HEATON ARMSTRONG: Will the court itself communicate with the solicitors who the appellant has instructed to assist him on this appeal, or would the court prefer me to do that?

LORD JUSTICE KEENE: I would have thought it is more convenient if you would directly, you would hope no doubt to be instructed on the adjourned appeal.

[20]MR HEATON ARMSTRONG: Thank you.