Case No: 99/4418/W5
 
IN THE COURT OF APPEAL 
(CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 18 February 2000
B e f o r e :

LORD JUSTICE EVANS

MR JUSTICE SCOTT BAKER

HIS HONOUR JUDGE GRIGSON
(Sitting as a Judge of the Court of Appeal Criminal Division)

	REGINA		
	- v -		
	JAMES KAMARA		

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  (Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Miss K Mulkerrins  appeared on behalf of the Appellant   
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Judgment
As Approved by the Court

Crown Copyright ©

 Mr Justice Scott Baker:
 This is an appeal against a restriction order imposed under section 41 of the Mental Health Act 1983.  The appellant is 37 and pleaded guilty to assault occasioning actual bodily harm.  On 9 July 1999 at the Crown Court at Wood Green His Honour Judge Zucker QC, sitting with two Justices, made a hospital order under section 37 of the Mental Health Act 1983 together with a restriction order under section 41 without limit of time.  

James Kamara appeals by leave of the single judge.  The appeal was listed before a different division of the this court on 17 December 1999 but adjourned in order for Dr Salter, who has for some years been the doctor treating the appellant, to prepare an up to date report.  In the event Dr Salter not only prepared an up to date report, but also came to court and gave evidence.  We are grateful to him.  

The appellant suffers from paranoid schizophrenia which is a mental illness within the meaning of the Mental Health Act 1983.  He has a long history of offending behaviour which has occurred in the setting of multiple frequent lapses into a psychotic state characterised by thought disorder, disinhibition, hallucination, thought interference and aggressive behaviour.  His condition is prone to relapse when he does not take his medication.  Over the years it has proved extremely difficult to contain him in anything other than an in-patient setting.  He has frequently absconded on being granted short periods of leave prior to release from compulsory detention.  This has been followed by a pattern of failure to take his medication, petty offending behaviour and illicit substance misuse, with the result that his mental health has deteriorated and he has found himself back in hospital.  

There was no dispute before Judge Zucker, nor has there been before us, that a section 37 order was appropriate.  The sole issue is whether the Judge was right to make a restriction order under section 41.  

The circumstances of the index offence were not particularly serious.  On 10 April 1999 a stranger called Richardson was waiting to cross a road in North London.  The appellant walked up to him and out of the blue punched him in the eye.  Richardson fell to the ground.  Passers by went to his assistance and the police were called.  Soon afterwards the appellant was stopped by the police.  He said:

"Some geezer tried to pick a fight with me, so I hit him."

He said, which was quite untrue, that Richardson had wanted a fight.  

The index offence has, however, to be seen in the context of the appellant’s earlier history.  This is described by Dr Salter in his recent report.  The appellant was first noted to be unwell whilst on remand in Brixton Prison in 1990 following arrest on a charge of causing actual bodily harm.  He declined to attend for follow-up after discharge.  In July 1991 he was admitted under section 2 of the Mental Health Act following an assault against a family member.  At this time he was also on bail for a charge of threatening a neighbour with a weapon.  He responded well to treatment but did not attend for regular follow-up and subsequently relapsed.  He was re-admitted after sleeping rough for a period in May 1992 at which time he was clearly psychotic, hostile and aggressive.  He refused to accept medication and absconded, being re-admitted in November of that year, again with self neglect, hallucinations and threatening behaviour.  He responded well to treatment but subsequently absconded and was re-admitted in October 1993 following an assault on a member of the public.  He refused medication and subsequent follow-up.  He was admitted in April 1994 after being found in a disinhibited, disorganised state by the police.  He again responded well to inpatient treatment but did not attend for follow-up and relapsed.  In February 1995 he was admitted after a high speed car chase around the M25, having stolen a police vehicle.  He was violent to care staff on admission.  In January 1996 he was admitted on a charge of affray and was referred to hospital for treatment.  Again he responded promptly but subsequently defaulted from follow-up.  Further admissions took place in January 1997 and 1998, but thereafter, in view of the complete multiple failure of the adult general psychiatric services to contain him as an inpatient, Dr Salter tried instead to chase him effectively in the community.  This proved similarly unsuccessful, culminating in the most recent admission as a result of his assault on Mr Richardson.  

Judge Zucker had before him the following reports:
Dr Salter         - 12 April 1999
Dr Akinkunmi - 15 April 1999
Dr Salter          - 29 April 1999
Dr Wilkins        - 28 May 1999 - with an addendum of 30 June 1999

Dr Akinkunmi said:
"Given his antecedents, the nature of the offence and the need to protect the public from the risk of serious harm, serious consideration should be given to the imposition of an additional restriction order under the terms of section 41 of the Mental Health Act 1983."

He went on to point out that this would require an assessment from Dr Salter which was being arranged.

Dr Salter’s conclusion was that while a section 37 order alone might be adequate in the short term, when one looked at the longer term, and particularly the appellant’s discharge from hospital, a section 41 order was necessary to provide a sanction in the form of the threat of recall to persuade the appellant to continue to take his medication following discharge.  

Dr Wilkins put it differently.  He said:

"The decision regarding the use of section 41 needs to be made on the basis of risk rather than effective compliance.  Obviously if Mr Kamara does not take his medication, either the newer antipsychotic preparations given by mouth or the older type given by injection, he will relapse.  However, there is modest evidence to suggest that he poses a significant risk to the public.  It is not appropriate for section 41 to be used merely as a device to ensure compliance with treatment if the risks are not that great."

Section 41(1) of the Mental Health Act 1983 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’."

So the Court is required to have regard to three matters:
(I)	the nature of the (index) offence;
(ii)	the antecedents of the offender and
(iii)	the risk of his committing further offences if set at large,
and ask itself whether it is necessary to protect the public from serious harm to make a restriction order.

Mustill LJ, as he then was, pointed out in R -v- Birch (1990) 90 Cr App R. 78 at p.86 that the section makes the assessment of risk, in the light of the facts as identified, one for the court.  He also observed at p.87 that the Judge will often by faced with a difficult decision and that the choice whether or not to make a restriction order depends on a prognosis the ultimate responsibility for which is left with the Judge.  He said at the bottom of p.87:

"Nevertheless, section 41(1) is there and the judge must apply it.  Quite plainly the addition of the words “from serious harm” has greatly curtailed the former jurisdiction to make a restriction order: most particularly because 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.  The harm in question need not, in our view, be limited to personal injury.  Nor need it relate to the public in general, for it would in our judgment suffice if a category of persons, or even a single person, were adjudged to be at risk: although the category of person so protected would no doubt exclude the offender himself.  Nevertheless the potential harm must be serious, and a high possibility of a recurrence of minor offences will no longer be sufficient."

He went on to say:

"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."

Now the reason why Dr Salter wants a restriction order in this case is not to prevent the appellant’s discharge from hospital, but rather to influence his behaviour in the community once he has been discharged.  He feels, with some justification it seems to us, that the appellant is much more likely to take his medication following release back into the community if the consequence of failure to do so is likely to be a return to hospital.  Were the appellant to be conditionally discharged following a restriction order,  Dr Salter would have power to recall him to hospital in the event of a breach of condition.  Although it is of no direct relevance to the issue that we have to decide it is also very much in the appellant’s best interests that he should continue with his medication thus stabilising his mental condition.  It is doubtful whether the appellant himself accepts that this is so but his views, it appears, are based to some extent on his experience on the adverse side affects of the drugs he was previously prescribed.  He is now the subject of a new regime.

The central question under section 41 is  the risk to the public from serious harm.  One of the three criteria to which the court is required to pay regard is the risk of the defendant committing further offences if he is set at large.  The court is required to look forwards.  That seems to us to require looking at the circumstances that will or may obtain following his release.  History shows that the appellant will probably not take his medication if left to his own devices and will therefore relapse to his former state.  On the other hand if a restriction order is made Dr Salter envisages quite quickly (he mentioned a period of about two months) asking the Secretary of State for the appellant to be conditionally discharged, it being no longer necessary for him to be detained.  The conditions would be:
(i)	regular attendance at Dr Salter’s outpatient clinic;
(ii)	residence at a given address;
(iii)	supervision by a psychiatric social worker and/or community mental health 	nurse;
(iv)	taking prescribed medication.

Miss Mulkerrins for the appellant does not challenge the lawfulness of a conditional release but she does argue that Dr Salter’s desire for a restriction order for the purpose of securing the appellant’s safer release into the community in future is not a valid reason for making a restriction order today.  Her argument seems to us to come to this:  as soon as the appellant is returned to hospital his condition is brought under control and he presents no risk of harm to anybody let alone serious harm.  Therefore he should be released back into the community and a restriction order is both unnecessary and inappropriate.  Dr Salter cannot, within a very short time span, ask for a restriction order and then ask the Secretary of State for the appellant’s conditional discharge.  We cannot accept her argument.  In our judgment the sole issue is whether the section 41 criterion is met namely a restriction order is necessary for the protection of the public from serious harm.  If it is, the court’s discretion to make such an order is triggered.

That a restriction order would protect the public from harm is, in our judgment, beyond argument.  But the section refers to serious harm.  The point is rightly taken that no member of the public has suffered serious harm from the appellant in the past.  In his recent report for this court Dr Salter put it this way:

"The patient has, as yet, not conducted an offence of sufficient severity to warrant detention at a medium secure level.  In my opinion, this is a matter more of luck than anything else and if the patient does not receive some form of treatment that persuades him of the need to remain engaged, the chances of him re-offending in the long term are quite high."

At the Crown Court Judge Zucker asked him:

"Q. 	Either you think that in the circumstances there is a risk of serious harm or you don’t?

A.	There is a risk, indeed, your Honour."

A little later in his evidence he said the doctors had fortunately been able to intervene before the appellant had gone beyond low grade assault, the implication being it was only a matter of time before something more serious happened.

The risk is of a sudden and provoked assault by the appellant when he is unwell.  The severity of such an assault cannot be predicted solely on the basis of what has occurred in the past.  Dr Salter spoke of a “blow to the face or possibly worse”.  Sometimes the extent of the injury that results from an assault is a matter of chance.  There are cases in this court’s experience where one punch has led to death and others where a grave and sustained assault has led to minimal injury.  The court has to look not just at what has happened in the past but at the risk of what may happen in the future.

It is for the Judge to decide under section 41 whether there is a real risk of serious harm to the public.  The Judge concluded, rightly in our view, that without the restraint of conditions it was extremely unlikely the appellant would take his medication and that if he failed there was a real risk of serious harm to the public.  In our judgment he was right and the statutory criteria in section 41 were met.  Dr Salter’s evidence before us, which we accept, was to the same effect.  It was and remains therefore appropriate to make a restriction order in this case.  The appeal is therefore dismissed.