No: 200001117/Z1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Monday 9th October 2000
 
B E F O R E :

LORD JUSTICE MANTELL

MR JUSTICE HENRIQUES

and

HIS HONOUR JUDGE FAWCUS
(Sitting as a judge of the Court of Appeal
Criminal Division)
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R E G I N A

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D F G R

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR R PRICE appeared on behalf of the Appellant
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JUDGMENT
1.	JUDGE FAWCUS: This appellant appeals against the imposition of a restriction order under section 41 of the Mental Health Act 1983 imposed in conjunction with a section 37 order under the same Act by His Honour Judge McCarthy at Wolverhampton Crown Court on 20th January 2000. That order was made following guilty pleas to three assaults committed by this appellant all on the same day, 20th March 1999, two of them being wholly unprovoked and, on the face of it, quite inexplicable, and one of them being committed after the appellant had been arrested. The learned sentencing judge had a number of psychiatric reports before him which in summary all agreed that at the time when the appellant committed these offences he was suffering from a psychotic disorder which was identified as acute paranoid schizophrenia. As we shall come on to in a moment, he had the benefit of one of those doctors giving evidence before him, as indeed was required under the provisions of the Act.
2.	The background to these offences which gave rise to these orders was as follows.
3.	On the day in question, round about the middle of the day, a Mr Webb was sitting in his van outside a flat  in Wolverhampton. His window was open. He noticed the appellant walking in the street, shouting. He was carrying a knife. In due course he approached Mr Webb’s van and lunged at him through the window, stabbing him through the shoulder. The victim felt a very sharp pain.
4.	About ten minutes later an elderly gentleman, Mr Hayward, had been shopping in the vicinity and was on his way back, having, as it happened, noticed this appellant in the shop. Mr Hayward was carrying some newspapers and a bottle of milk when the appellant approached him and said, “You have been shooting at me”. Mr Hayward responded that he did not even have a gun with him, whereupon he was then subjected to a brutal and very nasty attack. He was struck over the left eye by a brick. The photographs show the sort of injuries that one might expect from that sort of attack. When Mr Hayward tried to run off he fell over, dropping his bottle and papers. The appellant then kicked him.
5.	The police came to the scene. The appellant was arrested and taken to Wednesfield police station. Whilst in custody the police asked him to remove some of his clothes for evidential purposes. He refused and became very aggressive, so the police officers tried to  remove the clothing themselves. During the course of the ensuing struggle the appellant bit into the victim, PC Herman’s, leg, causing bruising and broken skin.
6.	Those three attacks were dealt with by the prosecution by the acceptance of pleas to two offences of occasioning actual bodily harm under section 47 of the Act and one offence of unlawful wounding under section 20 of the Act. The appellant had additionally been charged with the more serious offence under section 18, but the Crown had had the benefit of seeing what the medical position was and were clearly satisfied that the state of this appellant’s mind was such as to prevent him forming the necessary intent.
7.	The doctor who gave evidence before the court was Dr Fapohunda. He was examined at some length very clearly and, if we may say so, very skilfully by Mr Price to deal with the present position of the appellant, and in particular to deal with the question whether it was thought necessary for a restriction order.
8.	It became apparent during the course of questioning, and particularly towards the end, that the learned judge was concerned about the fact that this appellant had been taking cannabis since the age of about 15. At the material time he was 45 and he had  been taking it almost on a daily basis. The learned judge not surprisingly wanted to know what the effect of this was because by that time, in the course of the evidence, Dr Fapohunda had indicated that not only he but Dr Bond, who was another doctor who had had the treatment of the appellant since the previous September, were not of the view that it was necessary to make a restriction order. The questioning of the judge in this context really begins at page 8 of the transcript that we have before us. The questioning went as follows:
“Question: The taking of cannabis is often associated with either the development or the aggravation of the condition from which he suffers, isn’t it?
Answer: It has been said in some papers, your Honour.
Question: Do you agree with that?
Answer: In my experience, your Honour, it is a generalisation. It has exacerbated some cases of psychosis.”
9.	Then a little later:
“Question: When he is released from your care, have you any reason to think that he will not go straight back to using cannabis, as he has done for most of his life?
Answer: That again, your Honour, is a difficult question to answer.”
10.	Then on page 9 of the transcript: 
“The Judge: So is the position this, that when he is released no work will have been done to dissuade him from going back to his habit, let us call it, which he has indulged since he was 15.”
11.	Then, without reading out verbatim what Dr Fapohunda was saying, he said in effect that they would deal with the matter but they were not sure in precisely what way they would deal with it. It was something that they had in mind and would have in hand.
12.	In his sentencing remarks the learned judge said this:
“I have no doubt at all that the mental illness from which you suffered was at least exacerbated by your lifelong habit of smoking cannabis in large quantities and I say that on the basis of what I have seen in criminal courts day in, day out, year after year, and on other information that comes to judges when they are instructed.” 
13.	We assume what he meant was, when instructed by experts.
14.	He then went on to note that this appellant had been perfectly co‑operative during the period of his treatment. But he went on to say this:
“However, listening to the evidence of Dr Fapohunda, I am afraid I am not in the least satisfied that any constructive programme has been undertaken to educate you in the dangers of taking cannabis or any steps taken, effectively, to ensure that when you are released that you will not take it and it seems to me that there  is a real risk that when you are released you will take cannabis again; your condition will be exacerbated.”
15.	Then he made reference to him not taking his medication. In fact he had not wanted to take it orally but had had it injected. It was in those circumstances he decided to impose a restriction order.
16.	Section 41(1) of the Act says this:
“Where a hospital 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 the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as ‘a restriction order’.”
17.	But the material further section is (2) which states:
“A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.”
18.	As my Lord, Henriques J, observed one really must import into that that on hearing the evidence there must be at least some basis upon which the doctor is able to say,  and to persuade the court, that a restriction order is appropriate.
19.	We can well understand the misgivings that the learned judge had when approaching the sentence in this case, bearing in mind the nature of the offences. This was an appellant who had been in trouble in the past, and indeed had been in trouble for violence in the past, but not for very many years. Without going into the details of the other reports which the learned judge had before him, the clear evidence was that this man was suffering in a way that we have described at the time he committed the offences. That matter obviously significantly mitigates the gravity of those offences. However, what is more important is that it was the view of all the doctors who saw him that he had been progressing extremely well. What is more, in relation to the concern the learned judge had over the taking of cannabis, it is clear from the reports that that was not something, as it were, that had been brought to the doctors’ attention for the first time when the learned judge raised it. They had considered it but of course they had not at that stage decided entirely what to do.
20.	This judgment is not intended to lay down any hard and fast rules in relation to what is required under section 41. The subsections of section 41 are perfectly  clear as to what must take place before a restriction order can be imposed. We are far from saying that in appropriate circumstances it might not be appropriate for a judge to be unhappy to the extent of not being prepared to accept the oral evidence that he had before him. However, having read the transcript of Dr Fapohunda’s evidence, and the other evidence called in this case, we feel that ‑‑ and we say perhaps understandably ‑‑ that the judge was really relying on his own experience in court, as indeed he said, but unsupported by evidence in this particular case from the doctors which could have justified him in imposing that order.
21.	In any event, even if we were wrong about that, we have today received a report dated 3rd October from a Dr Walker. It is a very full report setting out the background and the on‑going treatment for this appellant. It is only necessary for us to refer to that passage of the report which deals with the question of illicit drug use. At paragraph 2 on page 12 of the report he says this:
“Mr R’ work on illicit drug use has mainly been at a ward level in sessions with his keyworker. He has been able to freely discuss his previous use of cannabis ‑‑ how this started, the amount that he used to use and the effects on his life.”
22.	Then a little later he goes on to say:
“Random drug screening [at the Reaside Clinic where he presently is] has been negative. His attitude to cannabis now is that he has gone without it for so long that he knows he can do without it. He would not use it in the future because he ‘would not like to be in that position again’ and because he does not know what effect it would have on his mental illness. He recognises that cannabis may have contributed to his presentation prior to his index offence and could lead to a relapse in the future.” 
23.	As we observed during the course of Mr Price’s submissions, of course there are many appellants and defendants who assert strenuously that they are never going to take drugs again and do. However in this case we are satisfied that there will be sufficient control and supervision over the activities of this appellant to assist him in standing by that resolve.
24.	In those circumstances, we consider that the restriction under section 41 should not have been imposed in this case and we discharge it. To that extent the appeal is allowed.