Case No: 2002/0151/Y1
Neutral Citation No. [2002] EWCA Crim 1698
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL  DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
Her Honour Judge Woollam
 
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 4th July 2002
Before :

LORD JUSTICE PILL
MR JUSTICE NELSON
and
MR JUSTICE McCOMBE

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Between :

	R
		
	- and -
		
	PETER GOODE		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
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The Crown were not represented
Mark Summers appeared for Peter Goode 

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Nelson: 
1.	On the 12th December 2001 in the Crown Court at Snaresbrook, the Appellant, having pleaded guilty to one count of inflicting grievous bodily harm on the 7th December 2001, was sentenced to a hospital order, with a restriction order, under sections 37 and 41 of the Mental Health Act 1983. He appeals against the imposition of the restriction order by leave of the single judge.
The facts.
2.	Just after midnight on the 23rd August 2001, the Appellant’s son Jonathan, awoke in his bedroom in the family home to find his father astride him, stabbing him repeatedly with a knife. Jonathan’s mother entered the room and pushed the Appellant away. He remained seated, with his head in his hands, until the police arrived. Upon arrest he said, ‘I thought he was evil. I’m sorry. What have I done?’ Later at the police station he said to officers, ‘My poor son, I don’t know why I did it. I can imagine what people will say, schizophrenic father stabs son; my poor son I can’t believe I have done that.’ The Appellant, his wife, and their son and daughter, together with Jonathan’s girlfriend, had been to a concert earlier that evening. All reported that the Appellant appeared to be fine and there were no tensions between family members.
3.	Jonathan underwent emergency surgery for multiple stab wounds to his chest and neck and defensive slash wounds to his arms and hands. He made a complete recovery from his injuries and had returned to full time work some five weeks after the attack. It was his view that the stabbing had occurred as a result of his father’s illness.
4.	The Appellant had suffered from paranoid schizophrenia for twenty five years. His illness had been controlled by medication, given since 1985 by way of injection, under the supervision of his GP. He had not previously been violent. When he had had relapses in 1982, 1985 and 1990, all had been non-violent and had been treated successfully with medication. In May 2001 the Appellant had begun an alternative therapy, called Reiki, and his long term injected medication of Depixol was gradually reduced. When in June, his wife noticed  behavioural changes in him, he was given Rasperidone and then Olanzapine. On the 3rd July his wife told the GP that she was concerned that the Appellant had not been taking his medication and was deteriorating. The GP persuaded him to take his oral medication and reported that he seemed to be improving. On the 21st August the Appellant felt paranoid and was given a Depixol injection by the GP. He was very willing to take this.
Antecedents.
5.	The Appellant is 49 and married with two children in their early twenties. He is of good character. He has been in regular employment for 23 years with the same employer, indicating the extent to which his paranoid schizophrenia has over the years been kept in control by his earlier medication and medical care.
The medical evidence. 
6.	In a report of the 17th October 2001 Dr Garwood, the Appellant’s GP since 1985, noted that his records showed that he been diagnosed with schizophrenia in 1976 suffering from delusions about good and evil forces in his body. The GP had administered the Appellant’s injections of Depixol since his 1985 acute episode on a 2 - 4 weekly basis. He was of the view that he had to oblige the Appellant’s wish to come off his long acting medication, as he was not acutely ill, he seemed co-operative and had been well for many years. The GP recorded the visits in July and August, concluding with his own visit, after the attack on Jonathan, to the police station when the Appellant explained to him that he believed that his son was in league with evil forces. The Appellant believed that because his son had unlocked the doors and windows that he had previously locked the evening before the assault.
7.	Dr Farnham, a consultant forensic psychiatrist, had the care of the Appellant from September 2001 to April 2001 when he handed over to Dr James as his responsible medical officer. Dr Farnham has written reports dated the 23rd November 2001 and 26th March 2002. He gave evidence before the sentencing judge and also before us.
8.	In his report of the 23rd November 2001 Dr Farnham described how the Appellant developed the belief that he was ‘the chosen one’ and might be about to become the ‘ruler or a guardian’. He described becoming increasingly guarded and suspicious of certain customers at his shop. He felt that some of the customers there were associated with the devil and that on the way home he believed a member of the Russian Mafia was following him. He had a very powerful belief that he was to be abducted by aliens.
9.	 Dr Farnham was of the view that the Appellant appeared unrealistic regarding the ease with which he would be able to reintegrate back into his family and the workplace. Dr Farnham considered that the diagnosis of paranoid schizophrenia was appropriate and that the Appellant had been suffering from a defect of reason at the material time, caused by paranoid and delusional beliefs resulting from his illness. Continued treatment in hospital was warranted and it was important to formulate a relapse prevention programme and help develop his insights. He had experienced relatively little deterioration over the years and although the offence was serious, his lack of antecedents, his insight into the nature of his illness, and his willingness to work with mental health professionals were such that it was in Dr Farnham’s view, not necessary to impose a restriction order under section 41. Dr Farnham did not change his view after reassessment on the 22nd February 2002 and 20th March 2002. He reiterated the view that a section 37 order was likely to be sufficient in itself to address the issue of future risk to the public in the case.
10.	The report from Dr Hamilton, a consultant forensic psychiatrist, expressed similar views to Dr Farnham and concluded that by the day of the offence the extent of delusion from which the Appellant was suffering was sufficient to represent a significant risk of assault to not only the son but also, perhaps, the lodger. Dr Hamilton was also of the opinion that the added precaution of a section 41 order was not necessary, but couched this opinion in much more guarded terms. He described it as a ‘some what marginal matter’ as, although he had been free of violence to others until the present episode, ‘when he does relapse, there is such a marked persecutory aspect to his deluded thinking that others, including members of his family as well as friends or associates, could indeed be put at risk again.’ He described the assault on the son as being of worrying severity and could readily have proved fatal. Nevertheless he believed that a rapid and vigorous medical response to any suggestion of any further deterioration of his mental state would now occur, whether reported by his wife or monitoring professionals, such that the development of another major episode or relapse, would be rendered much more unlikely. A section 41 order was therefore ‘probably not necessary’.
11.	When the sentencing judge had read the reports on the 7th December 2001 and had heard much of the mitigation, she made it plain that she was then of the view that although she was prepared to make a hospital order she was not prepared to do so, without a restriction order. She recognised that she would have to hear evidence from one of the doctors but said that the matter was ultimately her decision and that she had considered the medical reports at length and that her view as to the need for a restriction order was ‘my very firm view’.
12.	Dr Farnham gave evidence before the sentencing judge on the 12th December 2001. There is no transcript of his evidence but it is recorded in the Appellant’s counsel’s advice at paragraph 42(iv). Dr Farnham expressed the view that the Appellant’s condition was wholly manageable by Depixol, that his clinical antecedents (i.e. prior psychotic episodes) were remarkably infrequent, that there had been relatively little deterioration of his mental condition over 25 years with no prior violent incidents and he had considerable insight into his own illness. As he had always been fully co-operative with the psychiatric services and there was no reason to believe that that position would alter he remained of the view that the section 41 order was not necessary. Indeed he expressed the opinion that such a restriction order carried an increased risk of relapse were the Appellant to be unable to sustain his stable social environment, in particular his work. No plans for the Appellant’s discharge could however be made until sufficient liaison with local psychiatric services had been established to ensure that there was an adequate package in place to address the Appellant’s needs.
Sentence.
13.	The court accepted that at the time the Appellant had attacked his son he was severely psychotic and suffering from delusions. It was for the court, assisted by medical and psychiatric reports, to decide how he should be dealt with. A Hospital Order was certainly appropriate under section 37 but the court also had to consider whether a restriction order should be imposed. A restriction order was not a punishment; its object was the protection of the public from serious harm and the whole situation had to be taken into account including him, his illness, treatment and the nature of his behaviour when psychotic. The latter point was very important and it was noted that he had planned and carried out a dangerous attack, and it was only good luck that he had not killed his son. It had been said that in future his family and health professionals would be more alert to his mental state and that a further episode may be avoided by their vigilance and foresight, but the court was not satisfied that would be enough. It was not possible to know the form a further episode would take, only the form it had taken on the 23rd August 2001. The events of that day had demonstrated that there was a serious risk that if he did reoffend, the public would suffer serious harm. Dr Farnham’s opinion in evidence was not thought by the judge to be unsound, but she and Dr Farnham had arrived at different conclusions. Dr Farnham had been dealing very much with the risk of reoffending. The judge noted that Dr Hamilton had seemed rather less definite in his report about the question of section 41.
The grounds.
14.	Firstly it is submitted that by indicating her ‘very firm view’ that a section 41 restriction order was necessary before she had heard from either of the medical experts, the judge had prejudged the issue and should have recused herself from the subsequent sentencing hearing. Her refusal to do so was a breach of natural justice in that it gave the objective appearance of a possible lack of impartiality.
15.	Secondly the test to be met for the imposition of a section 41 order was that it was ‘necessary for the protection of the public from serious harm’. Both Dr Farnham and Dr Hamilton were of the opinion that a restriction order was not necessary, albeit for different reasons. A restriction order may increase the chance of a relapse in Dr Farnham’s opinion. The Appellant’s condition was atypical in terms of its manageability, his clinical antecedents, lack of previous violence, his insight into his illness and co-operation with psychiatric services.
16.	Whilst the judge was not bound to follow the recommendations of the medical experts, there was no material before her to justify her conclusion that a section 41 order was necessary. The opinion of the doctors was not and could not be said to be patently unsound. Nor had the Crown sought to challenge the medical evidence. 
The evidence of Dr Farnham to the Court of Appeal. 
17.	Dr Farnham confirmed his view that the diagnosis was paranoid schizophrenia and that the Appellant was suitable for a hospital order under section 37. Nothing had happened since he last gave his evidence which had caused him to change his mind. There were three factors which made the case unsuitable for section 41, firstly his antecedents, secondly his insight and thirdly his willingness to work with the authorities.
18.	As to his antecedents the Appellant had had only three previous breakdowns in 25 years when he had developed increasingly paranoid ideas, but all of these had been non-violent and successfully treated.
19.	His insight into his illness was really very good, but, went when he was unwell. He had accepted that there were psychological elements to his breakdown, not just the cessation of his medication, and had worked on relapse prevention with the family, in an open way which very few suffering from his condition do. He had been on escorted leave on a number of occasions, some fifteen escorted trips, all of which were uneventful.
20.	Dr Farnham could not say that there was no risk of relapse as there had been a relapse in the past and there may be in the future. He thought however those caring would be more alert to the risk and able to respond more quickly to it. If that occurred it would be possible to nip any relapse in the bud; at one end his treatment could be increased or at the other end it might be necessary to put him back into hospital. If he began to deteriorate, one of the first things that would go is his insight. If he was left for more than a few days he would lack insight. If therefore his deterioration was seen at an early stage, that is within a few days, he would co-operate, but, if it was not seen until a week or two weeks then he would not have the insight to co-operate and in those circumstances would have to be put into hospital.
21.	Dr Farnham was of the view that there was a very low risk of the Appellant committing another offence of violence. The pattern of any breakdown would be paranoid ideas, self referencing, for example that plots were being established against him, with these symptoms becoming more florid as the days went by. It could not be said that the next breakdown would be more serious nor that because there had been breakdowns in the past there would be patterns of predictable breakdowns.
22.	Dr Farnham envisaged that the package of care for the Appellant would involve liaison with the local consultant psychiatrist, social worker and psychiatric nurse; the latter would give him his injections and monitor his mental health. Initially this would be once a fortnight and then once a month. He would require monitoring for the foreseeable future at six months and one year intervals by a consultant psychiatrist. Fortnightly monitoring by the psychiatric nurse would continue indefinitely. After one year he would probably be seen at the psychiatric clinic every two to three months. Outreach was also offered.
23.	What was important here was that he had a very supportive wife and he was the bread earner. If a section 41 order is imposed it will increase his stay in hospital by several months. It would in Dr Farnham’s opinion be unfortunate if he lost his job, or his family split up, though that has not happened.

The Appellant’s submissions. 
1. The section 41 Restriction Order
24.	There is no evidence, it is submitted, upon which the Judge could properly have made a restriction order. The risk of his committing further offences was described by Dr Farnham as ‘very low’ and hence could not properly be distinguished from the case of R -v- Birch [1990] 90 Crim. App R 78 where the medical evidence was that there was not ‘much risk of further offending’ and ‘I do not feel there is a likelihood of her committing further offences if set at large unless similar circumstances arise’ (83). In that case the Court of Appeal questioned whether there was even a low risk and decided that they had nothing to go on except for the evidence of the doctor who struck them as responsible and whose evidence was not patently unsound. There was no basis for personal judgment which the Court could prefer to the evidence of the doctors. The Court therefore concluded that there was no material justifying a restriction order necessary to protect the public from serious harm. Mr Summers submits that the same conclusion should be drawn by this court in the Appellant’s case.
25.	The evidence established that there would be a risk of deterioration under a restriction order as the longer the Appellant was detained the greater the risk of the continued stability of his family and work environment being threatened. If his job was no longer open to him for example, there would be a risk of deterioration. Furthermore section 41, although it offered the opportunity of a conditional discharge with continued supervision under the auspices of the Mental Health Review Tribunal, nevertheless involved a delay of several months before precisely the same position could be achieved had only a section 37 had been made. There would, it was submitted be no diminution in the protection of the public but an increase in the likelihood of the Appellant deteriorating.
26.	Mr Summers accepted, after consulting Dr Farnham, that after care supervision under the Act would be equally available where a section 41 order had been made and the offender conditionally discharged from that order as where only a section 37 order had been made, but submitted that the increased stay in hospital to several months under a restriction order would be likely to make the Appellant’s condition deteriorate, if he were to lose his job or if his family stability were threatened.
27.	There was no proper basis upon which the Judge could come to a different conclusion from the doctors and, Mr Summers submitted, she provided no proper basis for doing so in her sentencing remarks. There were no reasons to doubt Dr Farnham’s evidence that the Appellant’s antecedents of 25 years with his condition under control and with no violent episodes, his insight into his condition, and his willingness to work with the authorities, produced a very low risk when the increased vigilance in his care and monitoring was also taken into account. As in the case of Birch there was no evidence upon which the Judge could, even though she had the responsibility of making the decision, disagree with the views expressed by the doctors.
2. Recusal.
28.	By expressing a ‘very firm view’ that there should be a section 41 order, the Judge had prejudged the issue. It would have appeared to any reasonable person in the public gallery that she had already made up her mind.
29.	There was nothing in Dr Farnham’s evidence to the Judge which could have caused her to consider that a restriction order was necessary, so that although she heard his evidence she must have paid little or no attention to it. As her prejudgement was apparent, her order should be quashed and there should be a reconsideration of sentence by this constitution of the Court of Appeal or by remission to another Crown Court.
The Law.
30.	A restriction order under section 41 can only be made where (a) the nature of the offence, (b) the antecedents of the offender, and (c) the risk of his committing further offences if set at large, make it necessary for the protection of the public from serious harm for such an order to made.
31.	The responsibility of making a section 41 order falls upon the judge, and such an order can be made by the judge even if all the medical witnesses advise against it, provided there is evidence upon which the order can properly be made. (R -v- Royse [1981] 3 Crim. App Rep. (S) 58 and R -v- Courtney [1988] Crim. Law Rep. 130  and R -v- Birch). The word ‘serious’ qualifies ‘harm’ rather than ‘risk’. Thus the court is required to assess ‘not the seriousness of the risk that the Defendant will re-offend, but the risk that if he does so the public will suffer serious harm’. (R -v- Birch (88)).
32.	It is however to be noted that the court has to have regard to the nature of the offence, the antecedents of the offender and ‘the risk of his committing further offences if set at large’. (Section 41(1))
33.	The Court of Appeal in R -v- Birch said:-
“It would however be a mistake to equate the seriousness of the offence with the probability that a restriction order will be made. This is only one of the factors which section 41(1) requires to be taken into account. A minor offence by a man who proves to be mentally disordered and dangerous may properly leave him subject to a restriction. In theory the converse is also true. Courtney shows that a serious offence committed by someone who is adjudged to have a very low risk of offending may lead to an unrestricted hospital order.”
This demonstrates that the factors under section 41(1) have to be assessed by the judge on the facts of each case. As the Court of Appeal in Birch said when considering the facts of that particular case, ‘this was a very serious offence and a low risk of repetition would justify a restriction order. But is there even a low risk here?’
34.	A restriction order does involve a different regime in hospital in that control is no longer unconditionally in the hands of the responsible medical officer or the hospital who consider the interests of the patient, but is transferred to the Secretary of State and the Mental Health Review Tribunal who must consider the interests of public safety. They are the bodies responsible for the discharge from hospital and we accept Dr Farnham’s evidence that a section 41 order is likely to result in the Appellant being in hospital for several months longer than if no such order were made.
35.	The Secretary of State or the Mental Health Review Tribunal may refuse discharge of a patient under a restriction order, give an absolute discharge or give a conditional discharge which would result in the patient’s continued supervision for a period before the matter came back before the Mental Health Review Tribunal.
36.	In so far as the ground relating to the Judge recusing herself, it was her duty to make known to the parties the provisional view that she had formed so that it could be addressed by the parties in argument. As was said by the Court of Appeal in Costello -v- Chief Constable of Derbyshire Constabulary [2001] 1 WLR at 1440, :-
“..having pre-read the skeletons and papers, it was perfectly proper (if not inevitable) that the judge had formed a provisional view before coming into court and, if it was proper for him to have formed this view, it must equally have been proper for the judge to inform the parties of his view so long as he did not give the impression that he had a closed mind on this issue. For this disclosure enabled the parties to know the way he was currently thinking and accordingly where attention needed to focused.. at the trial to change his mind.”
Conclusions.
1. The Restriction Order. 
37.	The nature and ferocity of the wholly unexpected attack by the Appellant upon his son made it clear that if the Appellant did reoffend, the harm which the public might suffer would be serious, and hence render necessary their protection. As Dr Hamilton said in paragraph 6 of his report, the assault was of ‘worrying severity, and could readily have proved fatal.’ Mr Summers rightly conceded in paragraph 41 of his advice and perfected grounds of appeal that if a risk of relapse did exist in the present case that would amount to a risk of ‘serious harm’. He described the issue in the case, therefore, as being whether even a low risk of relapse existed. 
38.	What is challenged therefore is not the finding of serious harm, but the finding that there was ‘the risk of his committing further offences if set at large’ so as to make it necessary for the protection of the public from serious harm to make a restriction order. A proper reading of the reports of both Dr Farnham and Dr Hamilton leads to the conclusion that there is a risk of reoffending but that given the successful treatment of the condition over the past twenty five years, the previous lack of violence, the Appellant’s insight into his condition and his willingness to comply with the medical authorities, that risk can be reduced, by the increased monitoring and vigilance now likely to be given by both family and health professionals, to a level which renders it unnecessary for the protection of the public from serious harm for a restriction order to be imposed. The Judge recites the view that those supervising the Appellant would be more alert to his mental state and that a further episode may be avoided by their vigilance and foresight in her sentencing remarks at page 4.
39.	It is plain from the reports and the evidence before the Judge and indeed this Court, that Dr Farnham does not state that there is no risk of a serious relapse, as it has happened once and it may happen again, but that the risk can properly be described as very low.
40.	It is submitted that the Judge disregarded the medical evidence and did not say why she had come to a different conclusion. Whilst it is true that the Judge might have expressed herself more fully in her sentencing remarks it is clear that she disagreed with the doctors in so far as they expressed the view that further relapses might be avoided by the vigilance and foresight of family and health services. In relation to that part of the medical evidence she said:-
“However I am not satisfied that that is going to be enough. It seems to me that it is not possible to know in advance exactly what form any further episode will take. What I can be sure of is the form that it has taken. I know from that, that it is only good fortune that you did not kill somebody on the 28th August (sic).”
41.	The Judge did not expand on this but there was evidence before her which supported her conclusion. Firstly, as she herself pointed out it was not possible to know in advance exactly what form any further episode would take. The assault on the son, albeit set in the context of a deteriorating condition which was causing some concern, was in itself unexpected and without warning. It occurred after the family had had a normal evening out together. Secondly, it was the Appellant himself who had the desire to cease medication and embark upon alternative therapy and thirdly, his wife expressed to the GP her concern shortly before the attack on the son that the Appellant was not taking his medication.
42.	The level of vigilance and foresight required, where the initial loss of insight could take place over only a matter of days, would have to be high and might have to be rapid and sensitive in its response. In view of the seriousness of the harm likely to result if a relapse occurred, the Judge was entitled to ask whether vigilance and foresight of family and health services could be relied on, with the high degree of confidence required in the circumstances, to deal promptly and decisively with the manner in which any relapse might develop or progress, and how the Appellant might respond to it.
43.	The Court of Appeal in Birch indicated (90) that where there is a very serious offence a low risk of repetition would justify a restriction. It is to be noted that in the cases of Birch and Courtney the offence arose out of a particular relationship unlikely to be repeated unless similar circumstances arose, whereas here the offence did not arise out of a particular relationship but out of the Appellant’s belief that his son represented evil forces. Dr Hamilton was of the view that not just the family, but also perhaps the lodger could have been thought to represent evil forces and hence be at risk. 
44.	The Court of Appeal in Birch plainly concluded that there was not even a low risk on the facts of that case. We are satisfied that on the facts of the present case it was open to the Judge to conclude that a risk of serious relapse did exist and as the offence itself was very serious, a restriction order was justified. The decision was the Judge’s responsibility and she reached a conclusion she was entitled to reach upon the evidence. 
45.	We are grateful to Dr Farnham for his assistance to this Court in giving the up to date position. In its essentials his evidence was to the same effect as that which he gave to the sentencing judge. We have taken his evidence into account in reaching our conclusion that a restriction order should remain in force.
2. Pre-judgment.
46.	We reject this ground. It is the duty of a judge hearing a case who has formed a clear provisional view on the basis of the material presented to her, to inform the parties that this is so, so that, by way of evidence and argument they will be able to deal with it. (See Costello) Indeed a failure to make a provisional view known could properly be open to criticism.
47.	In this case the Judge, having expressed her very firm view, adjourned the matter so that evidence could be called. There is no doubt that on the second occasion the Judge heard that evidence and heard argument upon it, before giving her reasoned decision. We do not consider that on these facts it can properly be said that the Judge either prejudged the issue or to a reasonable impartial observer of the whole proceedings, appeared to have prejudged the issue.
48.	The Appeal fails on both grounds and must therefore be dismissed.