No: 9903195 X3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
                          Royal Courts of Justice
                          The Strand
                          London WC2
 
                          Tuesday 22nd February 2000

B E F O R E :

LORD JUSTICE HENRY

MR JUSTICE HIDDEN

and

MR JUSTICE ASTILL

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R E G I N A

‑ v ‑

M. L. J.

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040   Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR MI DAVIES appeared on behalf of the Appellant

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JUDGMENT
Tuesday 22nd February 2000
JUDGMENT
1.	LORD JUSTICE HENRY:  I will ask Mr Justice Hidden to give the judgment of the Court.
2.	MR JUSTICE HIDDEN:  On 29th March 1999, at the Crown Court at Warrington before his Honour Judge Hale, the appellant pleaded guilty, and on 21st May 1999 was sentenced on a count of cruelty to a child to five years’ imprisonment. She appeals against sentence by leave of the Single Judge.
3.	The appellant was serving in the Army when she gave birth to her daughter on 27th April 1995. She was the sole carer for her child, and although she remained in the Army for a time, she returned for a while to live in the Warrington area as at the time she was suffering from depression. Over the next three years she had a number of admissions to psychiatric hospitals as she was diagnosed as having an emotionally unstable personality disorder. She was also prescribed medication for her condition, although on a somewhat haphazard basis. It became apparent that the appellant stopped taking her medication, telling people it was causing her to put on weight and that she did not want  to take it.
4.	After her first admission to hospital in 1995, her daughter spent time with a number of different carers. Following case conferences in June and July 1996 it was decided to institute care proceedings because of the appellant’s mental health problems and because of her somewhat difficult relationship with her parents.
5.	A care order was made with the consent of all parties on 24th April 1997 when she was living at an address in Warrington where she had been living since March 1996 when not in hospital. Since that time the appellant had had increasing contact with her daughter until she began to have unsupervised contact with her in the spring of 1998 with consent and full knowledge on the part of the authorities.
6.	On 9th April 1998 she saw a social worker at a family centre and told her she did not want to have full care of her daughter because she felt she could not handle the responsibility. She also told the social worker that she had been having thoughts of harming her daughter. Contact with her daughter was therefore briefly postponed, but was reestablished a short while later, and in late May 1998 the daughter stayed with the appellant on an unsupervised basis after a family emergency at the appellant’s parents’ home.
7.	Following a fire at the appellant’s home on 9th August 1998, she was first moved into temporary accommodation before being rehoused at another address in Warrington.
8.	There was a mark on the top of the child’s head which had been present since birth which began to increase in size, and in September 1998 it was diagnosed to be a cist and a decision was taken to remove it. There were fears at the time that it might be a malignant tumor, which undoubtedly caused the appellant some stress, but the cist was removed on 13th November 1998, and tests carried out on it concluded that the cist was benign. The appellant was informed of the results of those tests on 23rd November 1998. On that day, after being informed of the results of the tests, the appellant told her support worker she was relieved, and she also told her support worker that she had stopped taking her medication. On the way home that day the child was taken to the nursery in the normal way and the support worker subsequently dropped the appellant off at her home.
9.	It was 1.30 pm on 23rd November 1998 that the appellant visited a friend in an upset and distraught condition. She informed her friend that she wanted to move away from the area. She then contacted her social  worker and informed her she was leaving that night with her daughter as she wanted to make a fresh start. She was reminded of the conditions of the care order and persuaded to visit the social worker at the Family Centre, where she duly arrived, and informed the social worker that she had had an argument with her mother. The social worker told her of the possible consequences of her actions if she moved away, but said that if she was serious about moving it could be planned after proper consultation. The appellant admitted to the social worker that she was in a very low mood, and she left the Family Centre at about 3.20 pm to collect her daughter from her nursery.
10.	At about 4.15 pm the same afternoon the appellant contacted another social worker and he attended at her home a short while later. She told him of her problems staying in Warrington. Whilst the appellant was speaking to him her daughter was present and the appellant appeared to be irritated with her daughter. The social worker was very concerned about the appellant and said he would consult with colleagues before returning to speak to her again that day. He left at 4.50 pm, saying he would return shortly. However, after he had left the appellant telephoned the friend she had spoken to earlier that day, and during the course of  that conversation the friend heard the appellant admonishing her daughter and could hear the girl crying. Some time after 5 pm the neighbours also heard the girl crying.
11.	At about 5.10 pm that afternoon the appellant was seen driving her car at speed away from her home, and about 20 minutes later her car was sighted on several occasion about six miles from her home near some woods.
12.	In the meantime the social worker who had visited her that afternoon had returned to her house with a colleague and was surprised not to find her there, but at first thought she had taken her car to the local shops and so was not unduly concerned. However, when she had not reappeared after 15 minutes he became more worried and began to make enquiries.
13.	In fact at 5.55 pm the appellant did draw up in her car outside her house, but without her daughter. She alighted from the vehicle in an agitated state and informed the social worker that her daughter had disappeared. He asked her what had happened and the appellant informed him that her daughter had followed him down the drive when he had left her house about an hour ago and she had not seen her since. At the social worker’s instigation the police were informed and quickly attended at her house and a massive search for  the girl began, with considerable coverage on national television and radio.
14.	Throughout the search the appellant was with police officers and social workers, and did not inform them that she had abandoned her child in some woods. She did not give any information to the people around her of the whereabouts of her daughter until late in the afternoon of 24th November, the next day, when she gave them the first clue. She suddenly informed two officers with her about an alleged incident that had occurred about two weeks prior to her daughter’s disappearance. She said she had got lost while driving to a hospital in St Helens and had asked a man for directions. The man had taken an unusual interest in her daughter, who was with her, and had followed them for some distance in the car.
15.	To follow that up police officers arranged, at about 7.30 pm, to take the appellant on the route she said she had taken that day. As they were passing some woodland the appellant shrieked out that this was the place and directed them to an area near a farm house. She said, “That’s the house”, and when asked why she had taken the police officers there she said, “I’ve got a gut feeling and need to go and look for her”. A search team was summoned, and that team began arriving  over the next hour or so. The appellant stayed in the police car and told the officers she wanted to go home. She was told she needed to stay, and at about 9 pm that night officers equipped with dragon lamps began to make a detailed search of the dense woodland. The Court has seen photographs of the area searched.
16.	Initially there were some directions from the appellant, but soon the search team heard faint cries from the child, which, as the team got closer to her, got louder and louder. They found the child sitting in brambles in a very distressed state with no shoes on. She was cold and wet and smelt of urine and was shouting for her mother.
17.	The search continued, and the girl’s boots and her cardigan were found nearby, but there were no signs that she had been left with any nourishment or drinks. She was wearing a pair of leggings, a jumper and a coat, but did not have any socks on.
18.	The appellant was in a very agitated state when her daughter was found, but was told she could not accompany her daughter to hospital and was arrested.
19.	As officers drove the girl to hospital, there was some conversation between her and the officer. She said she had walked into the woods with the appellant when it was dark and that she had been told they were going on  holiday. She said her mother had told her she was going to get some sweets, but after she had left she had not come back.
20.	The girl’s temperature on arrival at hospital was one and a half degrees below normal. She was hungry and thirsty. There were scratch marks on exposed areas of her face, hands, lower legs and feet, which were also swollen and painful. The condition her feet were in was such that they were unable to bear her weight and that she was unable to walk. The swelling to her feet was due to injury by the cold. The scratch marks on her body were consistent with having crawled through brambles. She had been in the woods alone for about 30 hours. She subsequently made a full physical recovery from her injuries, but the long‑term effects on her psychologically were impossible to define.
21.	Over the period the child had been in the woods the external temperature had varied between three and nine degrees centigrade. There had been eight hours of rain and some quite significant winds.
22.	A doctor who examined her commented that it was very fortunate that she was found when she was and that the weather had not been colder. He considered that if she had been left there for a further 24 hours she would almost certainly have died.
23.	After the appellant had been taken to the police station she was interviewed. She repeated her story about her daughter leaving the house after the social worker had left and emphasised the story about the suspicious incident concerning the man about a fortnight before this incident. She denied she was responsible for abandoning her daughter in the woods, and made it plain that she found it very difficult to rear her daughter.
24.	In sentencing the learned judge said that the appellant had gone against the basic maternal emotions and abandoned her daughter in a dark, deserted wood in the cold of late autumn for over 30 hours. She had done this immediately after a social worker, who could have helped her, had left her home. The child was not a baby, but was of an age where she might be well able to recall what must have been a terrifying experience for her. The court had to decide whether this very serious course of conduct merited punishment or an order under the Mental Health Act. She had to go to prison for what she had done, as she had been manipulative of the psychiatric system in the past and had used it when it suited her. It was accepted that she suffered from a borderline personality disorder, but the court had been presented with no clear treatment programme and  with a wholly uncertain option.
25.	In deciding the appropriate term of imprisonment, account was taken of her guilty plea and the fact that in the end she told the police enough to indicate where her daughter might be. Taking all matters into account, the sentence was one of five years’ imprisonment.
26.	There were a great number of reports before the court ‑‑ a Pre‑sentence Report and very many psychiatric reports from a number of psychiatrists including Dr Bokhari and Dr Finnegan. There were also two reports from Dr Muluka, and reports from Dr Al‑Bachari with an addendum and a second addenda.
27.	In the grounds of appeal Mr Davies submitted that the judge erred in principle in imposing a custodial sentence when the psychiatric reports recommended an order under section 37 of the Mental Health Act. He made alternative submissions in relation to the matter if a custodial sentence was appropriate, submitting that the sentence was excessive.
28.	The matter has come before the Courts on a number of occasions, the most recent being on 6th December and 21st December 1999. The Court has, on each occasion, been urged to make a section 37 order, but has not been in a position to make a section 37 order, not having the right psychiatric evidence before it. However, on 6th  December 1999 the Court made a section 39 order, namely indicating that it was minded to make a section 37 order and gave directions in relation to the finding of evidence and the provision of evidence to the Court. Concern was then expressed by the Court in relation to a restriction order under section 41 of the Mental Health Act in relation in particular to what was said by Rougier J as to what the position would be if the appellant became pregnant again and was delivered of another child in relation to the risk to that child.
29.	This Court has been very much helped by Mr Davies in his researches and in all the documentation that he has put before the Court, and in the way that his skeleton argument pilots the way between the various reports that were before the court on previous occasions.
30.	This Court, however, is much assisted today in that there are now before it reports from Dr Al‑Bachari dated 13th January 2000 and from Dr Finnegan dated 19th January 2000, which show that there is available the necessary information from psychiatrists to make the Court’s position easier in deciding to invoke the provisions of section 37 of the Mental Health Act of 1983.
31.	Dr Al‑Bachari is the doctor who will be in charge  of her treatment, and in that report he speaks of his previous knowledge of the patient and of his opinion that she needs hospital treatment. He says her detention in prison is not going to improve her mental state or deal with her psychological and emotional difficulties. He says that:
“Keeping Miss Jones in prison will not improve her mental state. On the contrary it might worsen and aggravate her personal difficulties. On leaving the prison M.J. will be as damaged as she was when she entered it with no skills or abilities to look after her daughter.” 
32.	He further submits that:
“In view of the above I would respectfully recommend that M.J. should be treated on the Chesterton High Dependency Unit under section 37 of the Mental Health Act 1983. The Unit has locked doors and a high fence and it will give M.J. a structured and stable environment to explore her personal issues.” 
33.	He then deals with the various phases of treatment and their length, and deals with what will follow stabilisation of the patient.
34.	His report is also useful in taking a view, and giving reasons for, whether a section 41 order should be allied to section 37. On last page of his report he says:
“I am still of the opinion that section 37 will be sufficient to manage M.J. on the Chesterton High Dependency Unit. Her own health and safety and the safety of the public will be ensured and met by the security resources available on the Chesterton High Dependency Unit. M.J. usually directs her anger  and hostility towards herself. Indeed, she lacks insight into the consequences of her actions, hence leaving her daughter in the woods overnight. I think this is the reason behind her behaviour rather than a malicious intent of harming her daughter. Although M.J. expressed feelings of hostility towards other people, whether provoked or unprovoked, she has not acted upon these impulses and I believe these hostile feelings could be tackled during her treatment on the Unit. In my view section 41 will not have a therapeutic benefit; nor any meaningful benefit to protect the public.” 
35.	He confirms that a bed is available should the Court wish to admit the appellant to the Chesterton High Dependency Unit.
36.	The Court also has the report of Dr Finnegan of 19th January 2000, in which he gives qualified support to the Chesterton Unit, saying:
“The Chesterton Unit option is by no means ideal but will offer some opportunity to M.J. to address the difficulties that so disable her. As I said in my previous report, it is unrealistic to expect huge changes given the nature of her condition.” 
37.	Dr Finnegan considers section 41 and comes in the end to a decision which can be regarded as negative. He says:
“My previous objections on the issue of section 41 were predominantly in relation to M.J.’ management in the community. I am in full agreement that it is unlikely that a section 41 would offer useful protection to the public while she was detained in hospital. My concern relates to her management after she is discharged and how she might be retained in contact with the aftercare services. Her previous history does not give much reason for optimism. She does not currently offer, so far as one can tell, a serious risk to the public. Her daughter, Charlotte, seems to be properly protected and is unlikely to be subject to the same or  similar behaviour. My anxieties, as outlined previously, relate to the possibility of M. once again becoming pregnant and pursuing a similar course of deterioration in functioning.” 
38.	We pause to say that in that comment he is mirroring the concerns of Rougier J in December 1999. The report goes on:
“There would then be a risk to her child. I have no idea as to how likely this is but it remains a possibility. The court may consider that the risk is not sufficient to justify the use of the powers contained in section 41.” 
39.	Mr Davies argues that everything before the Court now is in favour of the making of a section 37 order. He points to the ingredients in the section 37 provisions which are all fulfilled in the reports of the various psychiatrists, and argues that as to the psychopathic disorder Dr Finnegan, Dr Muluka, Dr Al‑Bachari, Dr Snowden and Dr Suri all say that the appellant is suffering from an emotionally unstable personality disorder of the borderline type, and each accept that this falls within the category of psychopathic disorder.
40.	Mr Davies, in his skeleton argument, sets out the page references in the various reports that we have, and says that there has been a consistency of diagnosis throughout. All the most recent reports accept this underlying premise:  she clearly suffers from  a psychopathic disorder as defined by section 1 of the Mental Health Act, as amended by section 37 of the Mental Health Act 1983.
41.	He picks up the qualifications in the section in relation that it is appropriate for her to be detained and it is likely to alleviate a deterioration in her condition, and this is the most suitable method of disposal. It shows that Dr Muluka and Dr Al‑Bachari support the view that treatment is likely to prevent a deterioration in her condition, and sets out the relevant page references.
42.	As to the provision that arrangements have been made in the section, Dr Bokhari’s Report, which we have already read, shows that those provisions have in fact been made.
43.	He submits that a hospital setting is the most appropriate settig for managing the appellant, and that a hospital order should be made. He submits, equally, that it is clear that prison has not in fact done anything to improve her nor is it likely to, and the only chance of improvement is the hospital treatment which he seeks.
44.	He moves to the question of section 41, and takes us to the provisions of that section which says that:
“Where a hospital record 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 provisions of this section, further order that the offender shall be subject to the specified restrictions set out in this section, either without limit of time or during such period as may be specified in the order;.....” 
45.	He points to the words in the section that “it is necessary for the protection of the public from serious harm so to do”, and deals with that by taking us to the various reports and submitting that it is not necessary to protect the public from serious harm, amd that the public would not include an unborn daughter but that there are many provisions that would protect any unborn daughter if the appellant did in fact become pregnant and be delivered of a further child. He draws our attention to section 41 of the Children’s Act 1994, which empowers a local authority to seek an emergency protection order under section 43, 44 and 45 of the same Act, and says that under that provision the local authority, who are monitoring the appellant’s family and govern the degree of contact she can have with the child, will be able to apply for an emergency protection order if such an event were necessary whenever a further child were born and could then apply for a care order, and there would be useful provisions equally under sections 2 and 3 of the Mental Health Act.
46.	He submits that the basis for making a restriction order can be found in Gardiner (1967) 51 Cr.App.R. 187, and other guidelines and useful direction are to be found in B.B. (1989) 11 Cr.App.R.(S.) 202, and J.C. (1988) 9 Cr.App.R.(S.) 404, which illustrate the Court’s approach. He takes us to page 212 in the judgment of this Court and also to 205 when, in the judgment of the Court, it is said that:
“Two further points should be made on section 41. A sentencer should not impose a restriction order simply to mark the gravity of the offence, nor as a means of punishment. A restriction order qualified a hospital order, and a hospital order was not a mode of punishment. Secondly, the observation in Gardener as to the imprudence of making a restriction order for a fixed period rather than an unlimited period still held good under the 1983 Act (Haynes (1981) 3 Cr.App.R.(S.) 330).” 
47.	We have considered very carefully the various reports before us and the various arguments put to us. We are satisfied that there is no necessity for a section 41 order in this case. Indeed, it is expressly argued against by the doctor who will be responsible for her treatment whose report we have quoted. Dr Al‑Bachari specifically says:
“In my view section 41 will not have a therapeutic benefit; nor any meaningful benefit to protect the public.” 
48.	We can see no member of the public now in being who is at the risk referred to in section 41.
49.	For these reasons we conclude that the order this Court should make is an order under section 37 of the Mental Health Act 1983 for treatment at Chesterton High Dependency Unit under Dr Al‑Bachari. That is the order that this Court makes. To that extent this appeal is allowed.