No: 2005/6029/A0 
Neutral Citation Number: [2007] EWCA Crim 1392
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 14 May 2007
 
B E F O R E:
LORD JUSTICE LAWS 
MR JUSTICE KEITH 

HIS HONOUR JUDGE LORAINE-SMITH
(Sitting as a Judge of the CACD) 

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R E G I N A 

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WIAR SAFI 
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG 
(Official Shorthand Writers to the Court)
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MR M OLIVER appeared on behalf of the APPELLANT

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J U D G M E N T 
1.	MR JUSTICE KEITH:  On 5th July 2005 at Horseferry Road Magistrates' Court, the appellant was committed to the Crown Court for sentence, having previously pleaded guilty to an offence of exposure. He was at that stage subject to a hospital order which had been imposed under section 37 of the Mental Health Act 1983 ("the Act").  He appeared at the Crown Court at Middlesex Guildhall a number of times before a further hospital order was made on 13th October 2005 by Judge Matheson QC, but this time the hospital order was coupled with a restriction order without limit of time under section 41 of the Act.  The appellant now appeals against sentence with the leave of the single judge.
2.	The appellant comes from Afghanistan.  Different dates have been given for his date of birth ranging from 1979 to 1984, but he is on any view now in his twenties.  He came to the United Kingdom in 1998.  In 1999 for having a knife in his possession he was fined, and in 2001 for an offence of assault occasioning actual bodily harm he was sentenced to eight months' detention in a young offender institution.  He was to tell one of the psychiatrists who prepared a report on him that in 2003 he had worked as a caretaker, but he had had to give up that job following allegations that he had sexually assaulted young girls on two different occasions.  By late 2004 he was believed to be suffering from paranoid schizophrenia for which he had been prescribed anti-psychotic medication.  
3.	The offence for which he was eventually sentenced by the Crown Court was committed on 19th January 2005.  He exposed himself to women on two occasions within a short space of time, running after them with his erect penis exposed and fondling himself.  Both women managed to get away from him.  He initially denied the allegations, but later on he was to say that he thought that the women had wanted to have a sexual relationship with him.  That was what his "voices" were telling him.  Indeed, he claimed to have sent "mental messages" to the women, and to have received encouraging responses in reply.  
4.	Two weeks later, while on bail for that offence, he got close to a woman on the underground, and then rubbed himself up against her and touched her bottom.  He pleaded guilty to an offence of indecent assault.  On this occasion as well, he was to say that he had been told to do what he had done, and that mental messages had confirmed that his advances would be reciprocated.  
5.	By the time he came to be sentenced for that offence, it had been appreciated that a hospital order might be the most appropriate order to make in his case.  Accordingly, he was examined by Dr Elin Davies, a consultant psychiatrist, and by Dr Mark Harrison, who was based at Wandsworth Prison where the appellant was being held on remand.  Both those doctors had been approved as having special experience in the diagnosis or treatment of mental disorders for the purposes of section 12 of the Act.
6.	In their reports dated 15th and 16th March 2005 respectively, they described the appellant as suffering from a psychotic illness.  The likeliest illness was schizophrenia.  He was reported as hearing voices which told him what he had to do and on which he sometimes acted.  His other symptoms included what the doctors described as "thought interference, thought broadcasting and delusions of reference".  He believed that he had a mission to promote world peace.  He was said to have had little insight into his problems which were thought to have directly led to the commission of the offence.  A bed was shortly to be available for him at St. Clements Hospital, and accordingly a hospital order was made in his case on 17th March 2005.  He was still at St. Clements Hospital when he was sentenced in the Crown Court for the offence of exposure.  
7.	By then, two further reports had been prepared on him.  They had been prepared by a consultant psychiatrist, Dr Oro Etaluku, in whose care the appellant had been since 5th May 2005.  Dr Etaluku had also been approved for the purposes of section 12 of the Act.  His two reports were dated 30th June and 19th August 2005.  In his first report, Dr Etaluku noted that the appellant was claiming no longer to hear voices.  Dr Etaluku expressed the view that the appellant had become more receptive to the notion that he was mentally ill, and that although the appellant had previously believed that he heard voices and could send and receive mental messages, he was beginning to understand that he had been imagining that.  However, although he had begun to accept that the anti-psychotic medication he had been receiving may have helped to reduce his symptoms, he had at one time said that he had no plans to continue his medication, and he had even asked if he could stop taking it.  Dr Etaluku considered that in these circumstances the appellant's overall insight into his condition remained limited.  At that stage, he was not able to offer a view whether a restriction order needed to be made.  An assessment of the risks the appellant posed needed to be carried out before that could be done.
8.	Dr Etaluku's second report gave rise to much more concern.  By then, the appellant had confessed that his earlier claim about no longer hearing voices had not been true.  He still thought that members of his family and friends were talking to him, and that he was able to send and receive mental messages.  But following a formal sexual risk assessment carried out by a forensic psychologist on the ward, Dr Etaluku's conclusion was that the appellant posed a significant risk of committing another sex-related offence, and that he remained a danger to the public.  The appellant did not realise the seriousness of his previous sexual misconduct, and he did not show any empathy for his victims.  He was smoking cannabis and was resistant to treatment.  The likelihood of there being a link between his mental illness and his sexual misbehaviour was strong.  Dr Etaluku's view was that if the appellant was discharged from hospital then, he would quickly start to take illicit drugs again, he would fail to take his medication and he would disengage from psychiatric services.  In his view, a restriction order was required, although he did not state whether it should be limited or unlimited in time.  In both his reports, he had said that the paranoid schizophrenia from which the appellant was suffering was severe and enduring.  
9.	Dr Etaluku gave oral evidence at the hearing before Judge Matheson on 13th October 2005.  That was necessary if a restriction order was to be made since section 41(2) of the Act provides that a restriction order may not be made unless one of the doctors whose evidence is being taken into account for the purposes of the making of a hospital order has given oral evidence to the court.  He said that his view about the appellant had not changed since his report of 19th August.  He remained of the opinion that a restriction order was necessary, and now thought that it should be without limit of time.  The appellant's medication had recently been changed to medication which was more appropriate for patients who appeared to be resistant to treatment, and it could take as long as six or even 12 months for any improvement to become apparent.  If by then no significant response to the treatment had been shown, there would be little alternative to accepting that the appellant would continue to have the symptoms associated with his condition.
10.	Counsel representing the appellant on 13th October (not Mr Michael Oliver who represents him today) asked the judge to adjourn the hearing to a later date.  He acknowledged that Dr Etaluku's oral evidence was sufficient to give the court the power to make a restriction order, but he was concerned about the court's power to make a hospital order to which the restriction order could be attached.  A hospital order could only be made on the basis of the written or oral evidence of two doctors approved for the purposes of section 12 of the Act.  Dr Etaluku was one, but the reports of Dr Davies and Dr Harrison were said to be too stale, having been completed almost seven months previously, to assist the court in sentencing the appellant for a different offence from that for which those reports had been prepared.  However, in the course of argument the thrust of counsel's position changed.  He was no longer really arguing that a more up-to-date report was needed for the court to make a hospital order.  What was being said was that, although a restriction order could be made on the oral evidence of only one doctor, it would not be safe to rely on that doctor's view alone when what was being contemplated was a restriction order without limit of time, and where the other doctors who had considered the suitability of a hospital order some time previously had not considered the suitability of a restriction order at all.  
11.	In view of the way the argument changed, the judge understandably did not address whether either of the reports of Dr Davies or Dr Harrison were too old to justify the making of a fresh hospital order, although he acknowledged that it would have been better to have had a second up-to-date report rather than for him to have relied on reports which were, as he described, "a few months old now".  But he thought that he could safely deal with the case on that occasion without adjourning the hearing for a further report since (a) the doctor who had given oral evidence was the doctor under whose care the appellant currently was, (b) the appellant was subject to a hospital order at the time in any event, and (c) although Dr Etaluku acknowledged that in certain circumstances he would be unhappy about the court relying on a report which was not quite up-to-date, Dr Etaluku's view was that there had been no change in the nature of the appellant's condition since the time when Dr Davies and Dr Harrison had prepared their reports.  
12.	In the course of the argument, the judge was referred to the limited circumstances set out in section 41 of the Act in which a restriction order may be appropriate.  Section 41(1) provides:  
"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'."  
The special restrictions applicable to a patient in respect of whom a restriction order is in force mean that the powers under the Act to transfer or discharge him are exercisable only with the consent of the Secretary of State, and the powers of the Mental Health Review Tribunal to order his discharge are more limited.  The judge took the view that a restriction order without limit of time should be made, save that he should not be taken as having only addressed the risk of the appellant re-offending.  As to whether a restriction order was necessary for the protection of the public from serious harm, the judge said:
"I think the trouble with these sexual offences is you never quite know what is going to happen and how someone may react.  I think there is a risk of harm.  I mean, some people might be seriously affected by it." 
13.	Following the making of the new hospital order and the restriction order, the appellant remained at St. Clements Hospital.  In order to support his appeal, he was examined eight months later on 19th June 2006 by Professor Jeremy Coid, Professor of Forensic Psychiatry at St. Bartholomew's Hospital and who is also approved for the purposes of section 12.  His very full report of 20th July 2006 concluded that, having been on particular anti-psychotic medication for some time, there had been a considerable improvement in the appellant's condition.  Indeed, provided that the appellant continued taking his medication, Professor Coid thought that the appellant would not pose a risk of further re-offending by exposing himself or indecently assaulting women.  But if he stopped taking his medication, it was highly likely that his schizophrenia, which was then in remission, would re-emerge, especially if he resorted to further abuse of recreational drugs.  It was therefore not possible to make a firm judgment as to whether the appellant would pose a risk of serious harm to the public in the future.  What Professor Coid had gleaned about his sexual history had led him to believe that the appellant had the potential for behaviour which could amount to serious physical harm as well as behaviour which might result in severe psychological harm.  On that basis, and having regard to Dr Etaluku's view in 2005 that the appellant would stop taking his medication if he had been discharged from hospital then, Professor Coid thought that the imposition of a restriction order in October 2005 had been appropriate.  That was also the view of the consultant psychiatrist at St. Clements Hospital, who had become the appellant's responsible medical officer in January 2006.   
14.	The appellant first came before this court on 28th February 2007.  For reasons which it is unnecessary to spell out, the hearing of the appeal was adjourned to a later date.  It was ordered that up-to-date reports for use at the hearing be obtained from Professor Coid and whoever currently was the appellant's responsible medical officer, and that the latter should attend the hearing.  The reason for that was that if the court were to conclude that the orders made by Judge Matheson had to be quashed because he should have adjourned the hearing, the court would then have to proceed to re-sentence the appellant, and the court would need up-to-date reports to do that, as well as the oral evidence of a doctor approved for the purposes of section 12 if it wished to re-impose a restriction order. 
15.	Professor Coid's later report reveals that the appellant has been transferred to Mile End Hospital, but he does not say when.  His conclusion remains the same as his previous report.  The risk which the appellant currently poses is considerably reduced, but that is due to his successful treatment with anti-psychotic medication.  Professor Coid pointed to the high turnover of consultants responsible for his treatment since he was first admitted to hospital, and that has regrettably resulted in the appellant having only a very limited amount of leave.  He also noted that the appellant had been visited by his father, a retired professor of law who had settled in Australia, and who was anxious to arrange for his son's transfer to Australia once the restrictions on his discharge from hospital had been lifted, and his move to Australia had been sanctioned by the Home Office and the Australian authorities.
16.	The appellant's current responsible medical officer is Dr Javed Latoo, a consultant psychiatrist, and again a doctor approved for the purposes of section 12 of the Act.  He has looked after the appellant for only a few months, but he is able to say that the appellant is currently free of any psychotic symptoms, including symptoms of psychosis and mood disorder.  The staff on the ward say that he has been stable for a long time now.  He is currently having regular escorted leave from the hospital, and that has proceeded without problem.  He remains "totally compliant" with his current medication.  Dr Latoo believes that the appellant has a good insight into his medical condition, that he is aware that he is suffering from mental illness, and that he realises the need to remain on his medication in the long term.  He has not exhibited any inappropriate sexual behaviour on the ward for a long time, and there have been only two recorded incidents of the use of illicit drugs during his stay on the ward.  His risk of re-offending has greatly reduced, but that risk would become significant if he stopped taking his medication or began to re-use recreational drugs.  Dr Latoo did not express a view as to what the risk was of him ceasing to take his medication or using recreational drugs, or whether if he began to re-offend his offending would be more predatory than before.  For what it is worth, he thought that the restriction order had been appropriate at the time it was made.
17.	It is against that background that we turn to the grounds of appeal.  Broadly speaking, three points are taken.  The first is that the judge should not have made a fresh hospital order since he could only rely on the evidence of one doctor approved for the purposes of section 12, namely Dr Etaluku, the reports of Dr Davies and Dr Harrison having been compiled too long before then to satisfy the requirement of section 37(2)(a) of the Act that there had to be evidence from two such doctors that "the offender is suffering from mental illness..."  Indeed, we were invited by Mr Oliver to give guidance as to when a report ceases to be sufficiently up-to-date for it no longer to be able to be relied upon for the purposes of section 37(2)(a).  We decline that invitation.  Each case will depend upon its own facts. There may be some cases where it is appropriate to rely on a report which was compiled a little while previously, and other cases in which it may not.  In this case, there was a not insignificant lapse of time between the earlier reports and the hearing, but we think that it was open to the judge to rely on the up-to-date report from Dr Etaluku and at least one of the earlier reports to enable him to consider whether at the time of sentence the appellant was suffering from mental illness, especially as the appellant was then being detained pursuant to a hospital order which had been made less than seven months previously.
18.	The second point which is taken is that the hospital order should not have been made because the requirement in section 37(2)(a) of the Act that the mental disorder from which the appellant was suffering had to be of a nature or degree which made it appropriate for the appellant to be detained in hospital for medical treatment had not been made out.  Reliance was placed, amongst other things, on the undoubted fact that between the time of his admission to St. Clements Hospital at the end of March 2005 and the hearing in the Crown Court on 13th October 2005, there had been no instances of inappropriate behaviour, whether sexual or otherwise, on the appellant's part.  However, the crucial point is that the appellant's medication formed an important part of his treatment.  Dr Etaluku was unequivocal.  If the appellant was discharged, he would cease to take his medication.  He therefore had to be detained for that treatment, and to that extent the requirement about treatment in section 37(2)(a) had, in our view, been established.  
19.	Finally, it is said that, even if it had been appropriate for a fresh hospital order to be made, it had not been appropriate to couple it with a restriction order.  The offence for which the appellant was being sentenced, and the offence for which the original hospital order had been made, were relatively low-level instances of sexual misconduct.  Even if there was a risk of him re-offending in the future, the nature of his offending in the past suggested that there was no real risk of any member of the public suffering serious harm from him.  However, it was conceded that if a restriction order had been appropriate, it could not be argued that the judge had been wrong to make it unlimited in time.  
20.	We do not think the judge can be faulted for concluding that there was a real risk of members of the public suffering serious harm from the appellant.  Even if his re-offending did not go beyond the level of his previous offending, the judge understandably thought that some people might be seriously affected by it.  Sexual assaults which are relatively minor from the physical point of view may lead to severe psychological injury.  The judge may well have had in mind what was said in Bowler (1994) 15 Cr.App.R (S) 78 where the point was made that some women might be able to shrug off unwelcome sexual attention, but others might not.  In that case, the court took the view that the purpose of a provision which required the court to assess what longer custodial term was necessary to protect the public from serious harm from the offender included "the protection of those women, less robust than average, who may be vulnerable to the kind of conduct that [the offender in that case was] likely to perpetrate and who might in those circumstances suffer serious psychological harm."  
21.	Having said that, the real concern is that this was not a case in which the risk of the appellant re-offending was limited to the risk of the appellant committing only relatively low-level sexual offences.  Dr Etaluku's second report made the point that while the appellant remained psychotic he was "capable of acting out on his delusional beliefs".  Since those delusional beliefs made him think that women wanted to have a sexual relationship with him, and since he did not think that his behaviour towards his victims had been wrong, there was no knowing where acting out his delusional beliefs would take him.  On that basis, there was at the time of the hearing before Judge Matheson a real risk that women would suffer serious harm from him.  Ex post facto justification for that view comes from Professor Coid's view in 2006 that in 2005 the appellant had had the potential for behaviour which could amount to serious physical harm as well as behaviour which might result in severe psychological harm.  On that basis, the restriction order was justified.  
22.	Accordingly, this appeal must be dismissed.  If the appellant is now regarded as no longer posing a risk of serious harm to women if he were discharged because there was no real risk that he would cease to take his medication and no real risk that he would revert to the use of recreational drugs, no doubt that view would inform the decision as to whether he can safely be discharged.  It would not be appropriate for this court to give effect to any such view by setting aside the restriction order.  Otherwise whenever a patient's condition improves as a result of his treatment, it would be open to the offender to return to this court to seek the discharge of the restriction order.