R, R v [2003] EWCA Crim 3242

Case No 2002/0981/B1[2003] EWCA Crim 3242
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 4 November 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE DYSON
MR JUSTICE MITTING
HIS HONOUR JUDGE FABYAN EVANS QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
R. R.
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR E COFIE appeared for APPELLANTMR P MANN appeared for CROWN
J U D G M E N T

LORD JUSTICE DYSON:

[1]On 18th January 2002 in the Crown Court at Nottingham, the appellant was convicted of causing grievous bodily harm with intent to cause grievous bodily harm. He appeals against conviction with the leave of the full court. The judge imposed a Hospital Order under section 37 of the Mental Health Act 1983 ("the Act") and a Restriction Order without limit of time under section 41 of the Act.[2]The appellant has a history of mental health problems dating back to 1995, since when he has been periodically admitted to hospital for treatment on both a voluntary and compulsory basis. He was diagnosed as suffering from bipolar affective disorder which causes mood swings ranging from depression to extreme elation and excitement.[3]In January 2001 he was living at an address in Islington. He was visited by members of the local authority Crisis Resolution Team. They decided that they needed to gain access in order to make an assessment under section 2 of the Act and to that end they obtained a warrant under section 135 of the Act. In fact the appellant had already left London and gone to Nottingham. He stayed at the Grisham Hotel in Nottingham between 13th and 18th January 2001. The Islington authorities made contact with their counterparts in Nottingham. Dr McCartney and Dr Tarrant, both consultant psychiatrists, were asked by Kim Sullivan, the approved social worker, to make written recommendations to enable the appellant to be admitted to hospital pursuant to section 2 of the Act.[4]The two doctors, together with the social worker and indeed three police officers went to the hotel at 9.30 pm on 18th January. Arrangements had already been made with the hotel authorities for that to happen.[5]The appellant had a bedroom, room number 3, which he had occupied for the previous few days. Apparently the television was not functioning properly. The hotel had agreed that the appellant could use another bedroom, room number 9, for the sole purpose of watching the television in that room. The hotel authorities imposed a condition upon his use of that room that he should use it for no other purpose, that he should not use any other facilities in room number 9 and that he should not lock himself in that room. He used the room on a number of occasions during the few days that he was in the hotel.[6]The team comprising the social worker, the doctors and the police officers arrived at the hotel as we have described. The receptionist, aware of the purpose of the visit, arranged to have the lobby cleared of all guests. Contact was made initially by the mental health team with the appellant. The police officers at that stage were in some other part of the hotel. The appellant came to the door of room number 9. The door was open and a conversation took place between the mental health team and the appellant in the doorway of the room. Dr McCartney gave evidence that he told the appellant who he was and that he had come to make an assessment for the purposes of admitting the appellant to hospital. The appellant told the doctors to go away in no uncertain terms. Dr McCartney said that he became hostile, his speech became rapid, he became difficult to follow, aggressive, agitated and aroused and said that he felt the mental health team had come to torture him and capture him. The doctors decided on this material that they had enough information to enable them to make the necessary written recommendations for the purposes of an admission pursuant to section 2 and this they duly did. They informed the three police officers whereupon those officers came to the doorway of room number 9. The door was still open and the appellant still in the doorway.[7]It is significant for the purposes of this appeal that no warrant had been obtained under section 135 of the Act. The three police officers were WPC Higgins, Inspector Holland and PC Kirkland. WPC Higgins did most of the talking at the doorway. She told the appellant that he had been sectioned and that he had to come with them either quietly or if not then force would be used. He made it clear that he would not go voluntarily and was abusive. He said then and has maintained throughout that the police were not entitled to use force to require him to go to the hospital without the sanction of a warrant under section 135.[8]What followed was to some extent a matter of dispute at trial. WPC Higgins said that the appellant's right hand was up above the doorway and she could not see at first what was in it. The officers approached him without truncheons. The appellant then moved slightly forward and produced in his hand a knife with the blade already opened. At this point all three officers drew their truncheons. The appellant then started saying that he was going to kill himself. We interpolate that the appellant has always maintained that he never said any such thing. Inspector Holland then called for support and two other officers, PC Kimbley and PC Matthews, arrived.[9]By this time the appellant had closed the door. The officers tried to open the door and eventually forced it open. PC Kimbley moved forward and sprayed the appellant in the face with CS gas. The gas apparently had no effect according to WPC Higgins. She was unable to see what happened next or how PC Kimbley came to be injured as he was. Inspector Holland said that the appellant lunged forward when the door was broken down and appeared to strike PC Kimbley on his jacket, pushing his arm forward two or three times from waist height. He appeared to strike the officer once in the area of the heart and a second time on the left side of the abdomen. PC Kirkland said that as the officers approached him the appellant swung his right arm twice into the left lower side of PC Kimbley. He was pushing forward from about waist height with his arm straight in the direction of PC Kimbley. PC Kimbley himself said that the appellant had shut himself in the room and that they knew he had a knife. After the door had been broken down the CS gas had no effect. The appellant came out of the room and there was a struggle in the corridor. The officer tried to grab the knife from the appellant with his left hand. As he did so the appellant struck him twice to the left side above the waist. This was by means of what he described as a jabbing movement. PC Matthews said that he saw the appellant lunge forward with a knife and catch PC Kimbley on the side about waist height. He did not see the knife but he did see the officer reach out and grab the appellant's hand.[10]The account given by the appellant at the trial was as follows. He said that he wanted to see the warrant before he would agree to go to hospital. He believed that the police had no right to break in to what he regarded as his room without a warrant. He agreed that WPC Higgins said that he would have to go voluntarily or the police would come in and get him. He refused to go. He said that the three officers then advanced towards him. He did not have a knife at that stage. He told the officers that so far as he was concerned they needed a court order and he shut the door. They then started to kick the door down and at this point he put his hand in his pocket and drew out the knife that he used to cut bread or an apple and sometimes when he was working. He opened the blade to discourage the police and place an extra barrier between himself and them. He doubted whether they were police officers at all. When the door was broken open he was immediately sprayed with gas. The officer then started to grab him. He said:
"I started moving my arms about without seeing them, pushing them aside to try to get free of them."
He demonstrated his hands in front and showed his arms rotating. What he also said, and we quote from the page 44C of the summing-up:
"Inspector Holland came behind him and put the baton across his chest and grabbed his arms and Woman Police Constable Higgins started punching his stomach which could have caused him to haemorrhage, he said, and the thought that he could have been killed or seriously injured. He did not say he was going to kill himself, however, or even anything similar to that. He said he brandished the knife 'because of these people were sensible, they wouldn't come in after me.' He did not want to hurt anyone. Above all -- and this is central to the case -- he said he did not intend to stab anyone or even hurt anyone with the knife."
In cross-examination he agreed that the knife had caused a cut to P.C. Kimbley's arm. He also agreed that he did not think that he had a right to stab anyone. He denied that he had thrust or pushed the knife at the officer.[11]The sole issue that arises on this appeal concerns the directions given by the judge to the jury in relation to the effect of the fact that the officers had gone to the hotel on 18th January without a warrant issued under section 135 of the Act. It is necessary therefore to refer to the relevant statutory provisions.[12]Section 2 of the Act provides that a person may be admitted to a hospital in pursuance of an application for assessment made in accordance with subsections (2) and (3). Section 6 provides that an application for the admission of a patient to a hospital under Part 2 of the Act shall be sufficient authority for the applicant or any person authorised by the applicant to take the patient and convey him to the hospital within the period specified by subsection (1).[13]Section 135 provides:
"(1) If it appears to a justice of the peace, on information on oath laid by an approved social worker, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder- (a) has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or (b) being unable to care for himself, is living alone in any such place, the justice may issue a warrant authorising any constable ... to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, of thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care. (2) If it appears to a justice of the peace, on information on oath laid by any constable or other person who is authorised by or under this Act ... to take a patient to any place, or to take into custody or retake a patient who is liable under this Act... (a) that there is reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and (b) that admission to the premises has been refused or that a refusal of such admission is apprehended, the justice may issue a warrant authorising any constable ... to enter the premises, if need be by force, and remove the patient."
Section 137 provides:
"(1) Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody. (2) A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable."
[14]It is now necessary to consider certain passages in the summing-up. At page 12E the judge told the jury that if they accepted the evidence of the social worker and the two doctors as to what happened when they visited the hotel on 18th January:
"... the police were then entitled to move in to detain the defendant and, indeed, to use reasonable force themselves in all the circumstances in order to do that, to detain him. They did not, as the defendant thought, need to go back to the court to obtain a court order."
He added at page 12H:
"What they were not allowed to do, of course, is to use gratuitous, wilful violence beyond what was necessary in all the circumstances as it appeared to them, because that would change a lawful, legitimate detention into an unlawful one."
[15]There came a point when the judge adjourned his summing-up. At 10.30 the following morning, counsel then appearing for the appellant, not Mr Cofie who has appeared today, submitted to the judge that the jury should be told that the police had not been entitled to enter the premises on 18th January without a warrant issued pursuant to section 135. It is most unfortunate that this point occurred to counsel only during the judge's summing-up; but the point having been raised, the judge had to deal with it. After prolonged discussion with counsel, what he said to the jury was this, at 41C:
"Now there is no need for you to get involved in legal technicalities in relation to police powers. The policeman are, in fact, entitled to enter the room of the defendant and detain him in order to protect the defendant, as they had put it, from the point of view of the evidence that they had in front of them -- they said that he was going to kill himself -- to protect him from serious injury to himself and, indeed, in respect of public disorder that was being or had been created or might be created. The defendant claimed that the police could not enter his room without a warrant. That was what he asserted many times, as you know. Even if that were the case -- which is open to debate, it may even be the case -- the amount of force that could be used must still be reasonable only."
On behalf of the appellant, Mr Cofie submits that the judge misdirected the jury by stating that, if they accepted the evidence of the social worker and the doctors, then the police officers were entitled to enter the room and use reasonable force to detain the appellant. Mr Cofie submits that the officers required a section 135 warrant before they could lawfully detain and take the appellant to hospital against his will. The judge should therefore have directed the jury to consider whether the degree of force used by the appellant to avoid an unlawful detention was reasonable in all the circumstances, including the circumstance that the police were acting unlawfully.[16]The full court gave leave to appeal because they thought that the grounds of appeal raised an issue as to the relationship between sections 2, 6, 135 and 137 of the Act. It seems to us that the starting point is that it was never disputed that a valid application for admission of the appellant to hospital had been made by the approved social worker. She had made an application founded on the written recommendations of two registered medical practitioners as required by section 2. This gave the applicant or any person authorised by her sufficient authority to take the appellant and convey him to hospital -- see section 6(1). The police officers were undoubtedly authorised by the applicant's social worker to take and convey the appellant to hospital. It was for that very reason that they were contacted by her in the first place.[17]The effect of section 137(2) was that the police officers had all the powers, authorities, protection and privileges which a constable has within the area for which they act as police officers. Those powers did not, however, include the power to use force to enter premises to remove a person simply because he was believed to be suffering from a mental disorder or was a person liable to be taken into custody under the Act.[18]This brings us to section 135. In our judgment a duly completed application for an assessment under the Act does not without more provide authority for the applicant, or the police if authorised by the applicant, to effect a forced entry into the premises of the person sought to be conveyed to hospital. Such an act would, on the face of it, be a trespass and unlawful. A warrant issued under section 135 is the means by which a forced entry, which would otherwise be a trespass, becomes a lawful act where the aim of the forced entry is to remove a person to hospital for one of the purposes specified in section 135. The position is otherwise where the aim of the forced entry is different, for example where the purpose is one of those specified in section 17(1) of the Police and Criminal Evidence Act 1984.[19]On the facts of this case, therefore, if by entering the premises where the appellant was on 18th January 2001, the police would have been trespassers as against the appellant unless a warrant was first obtained under section 135 then their forced entry, if that is what it was, would have been unlawful since no such warrant had been obtained. But in our judgment there was no factual basis for contending that the police entered as trespassers on 18th January, still less as trespassers as against the appellant. It is not suggested that the police were not entitled to enter the hotel itself -- it is clear from the evidence to which we have referred that the police had the authority of the hotel to enter for the purpose for which they did effect entry. The only act of forcible entry occurred when the police broke down the door to room number 9 in the circumstances that we have described. But the appellant had no right of exclusive occupation of that room. He had no right to exclude others from the room. His right to use the room was pursuant to a licence granted to him by the hotel for one purpose and one purpose only, and upon the conditions that we have mentioned. In those circumstances, he had no right to deny anybody access to that room, still less the police who were on the hotel premises with the permission of the hotel. The appellant could not have brought a civil claim in trespass against the police authorities for entering room number 9. They accordingly were entitled to be in that room on 18th January 2001 without a warrant.[20]It is not necessary for the purposes of this appeal to decide whether the police actually entered room number 9 for the purpose of forcibly detaining the appellant or whether the forcible detention took place in the corridor. The preponderance of the evidence suggests that in fact the forcible detention took place in the corridor. But as we have said, the police would have been acting lawfully, whether the detention took place inside the room or outside in the corridor.[21]Accordingly, the police were entitled by virtue of section 6 to take the appellant from the hotel and convey him to a hospital and to use reasonable force in doing so. The judge was therefore right to direct the jury, as he did before the intervention of counsel to which we have referred, that the police were entitled to move in to detain the appellant and to use reasonable force in order to do so. There being only one ground of appeal, this appeal against conviction must be dismissed.[22]The appellant's application for leave to appeal against sentence has been referred to this Court. As we have already said, the judge imposed a Hospital Order and a Restriction Order under section 41 without limit of time. The appellant is now 54 years of age. He has no previous convictions or cautions.[23]There were before the judge psychiatric reports which indicated that the appellant suffers from a serious mental disorder. The report from Dr De Taranto said that she had examined the appellant and he had presented as hypermanic and dismissive. He continually shouted and was abusive. He had persecutory ideas of a conspiracy between the police, the courts and the medical profession and insisted that he did not require medication or psychiatric care. She concluded that the appellant suffered from bipolar affective disorder but had no insight into his condition or the need for psychiatric treatment. He suffered from a mental illness which, while treatable, was of a nature and degree that meant that his detention in hospital was appropriate for his own health and for the protection of others. The judge took into account not only that report but also psychiatric evidence from Dr Farnham and Dr Benning, together with the oral evidence of Dr Benning that the appellant was suffering from bipolar affective disorder.[24]The judge was fully appreciative of the seriousness of attaching a Restriction Order without limit of time, particularly given the fact that there was no previous history of convictions or violence, but that his lack of insight into his condition, his failure to accept that he was suffering from a mental condition at all and his poor history of failing to take medication were the important matters to take into account and the main areas of concern when considering the question of danger to the public and the need to protect the public. The judge said that the circumstances of the incident were very serious and terrifying. The judge accepted that the appellant had been uncertain of the legal position at the time, but given the history of medical problems, the nature of the offence, his reactions during the trial and the risk of further offences if the same situation arose again, there was a real danger of injury or serious harm to the public. The judge therefore considered that it was necessary for detention without limit of time under a Restriction Order pursuant to section 41.[25]The grounds of appeal against that order are that such an order was not necessary and indeed rendered the sentence manifestly excessive because the appellant had no previous convictions; on the evidence he did not represent a threat to the public at large; he was unlikely to commit further offences if set at large and the responsibility for the serious incident that occurred on 18th January rested in large part with the authorities for failing to deal with the situation professionally and safely.[26]We have no hesitation in concluding that the sentencing judge was fully justified in making the order that was made in this case. The judge took into account the fact that the appellant had reached the age of 54 without committing any offences, still less any offences of a violent nature. But the mental instability disclosed by the evidence and by what happened on 18th January meant that the judge was fully justified in concluding that a Restriction Order was necessary. We are unimpressed by the submission that the authorities present at the scene on 18th January were in some way responsible for what occurred on that date. For the reasons we have indicated, we would refuse this application for permission to appeal against sentence.