No:  200101189/W3
Neutral Citation Number: [2001] EWCA Crim 1708
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Monday, 18th June 2001
B E F O R E :

LORD JUSTICE KAY

AND

MRS JUSTICE STEEL

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R E G I N A

‑ v ‑

R.B.

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MS S A HALES appeared on behalf of the Appellant.

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JUDGMENT
Monday, 18th June 2001
JUDGMENT
1.	LORD JUSTICE KAY:This is in many respects an unusual appeal. We make that clear at the outset because we do not think that this case can possibly have any great relevance to any other case because its facts are so unusual. Also, we think that the course to be taken by the court is so obvious now that there is no justification for giving a very detailed judgment.
2.	On 10th November 2000 at the Crown Court at Oxford, the appellant, who is 25 years old, pleaded guilty to an offence of administering a noxious thing with intent to injure, aggrieve or annoy. She was sentenced on 9th February 2001 by HHJ Allen to 18 months' imprisonment. She appeals against sentence by leave of the single judge.
3.	The unusual facts are that the appellant gave birth to a child, Jamie, on 4th October 1999. He was born prematurely, which was of some relevance to later events. On 10th July 2000, Jamie was found to have a rash on his left leg and blistering to both legs. There was no suggestion that the appellant was responsible for those symptoms.
4.	He was treated with antibiotics, but when that did not work he was transferred to the John Radcliffe Hospital. An abscess was drained operatively the next day and he was then treated with intravenous antibiotics until 18th July when his health appeared to be improving.
5.	The following day, doctors advised the appellant that her son was well enough to go home. That evening, whilst off the ward with the appellant, the child became unwell. He had a fever and was suspected of having a fit. Over the next few days he suffered rigours and decreased consciousness. A second operation was conducted to enlarge the drainage hole for the abscess.
6.	The medical problems continued. Over next few days the left leg became discoloured and swollen. The child had a further episode of fever. Following a temporary improvement, that was followed by a further septic episode. Medical staff were concerned that the femoral line might be blocked and inserted a new intravenous line.
7.	Between 24th and 26th July, blood cultures were obtained and sent for analysis. The matter was so serious that amputation of the left leg was considered. On 27th July the child was admitted into paediatric intensive care. During that period he had no bouts of fever. On 28th July he was returned to the paediatric ward. Once again, bouts of fever and septic episodes started. By 4th August 2000 these bouts were prolonged and occurring daily. Blood cultures revealed several types of bacteria and the consultant paediatrician became concerned material had been deliberately injected. He planned to remove the intravenous line, possibly replacing it with a different type of line. That was discussed with the appellant. A CT scan was planned.
8.	At about 9.30am on 8th August the doctor saw the appellant with her son who was in a pram attached to his intravenous line. About two minutes later he began to vomit and had a severe septic episode. While the appellant and the child attended the CT scan, her bedside locker was searched. Two syringes, a dirty needle and a bottle of black coloured water was discovered. The police were contacted and the appellant was arrested.
9.	Analysis of blood cultures revealed four separate types of bacteria, consistent with contaminated water, present in the child's blood. The child remained in hospital until September 2000. His condition was described as life threatening but happily he has made a full recovery with no long term effect.
10.	When interviewed, the appellant at first denied the allegation. She said that for the first time since her son's admission to the hospital, she had left the hospital to go for a drink with her husband. She had been upset and concerned that the doctors were going remove the jugular line thinking it would make Jamie poorly again. Later she admitted that she had introduced pond water into her son's canula: the first time being on 23rd July after doctors spoke to her about taking her son home in a few days. She believed that her son's condition was not being taken sufficiently seriously and was concerned that if he came home she would be unable to cope with him. She had intended to do no more than raise his temperature so that the doctors would start to take his condition sufficiently seriously.
11.	She then admitted that on 25th July, 28th July and 8th August she repeated the administration of the dirty water. Her son's reaction on the last occasion had frightened her and she had then realised that she had gone too far. Although she had wanted to tell staff what she had done, she had been unable to do so because she was frightened of the consequences.
12.	Those then were the circumstances of this highly unusual offence. Her explanation as to her reasoning which had led her to do this dreadful thing was accepted by those who interviewed her and by the court. The facts demanded, obviously, a psychiatric report and one was obtained from the Dr Shubsach dated 29th January 2001. 
13.	He concluded then that the appellant did not suffer from a mental illness or personality disorder within the meaning of the Mental Health Act 1983. She had been suffering a depressive illness of moderate severity at the time of the offence. Her actions, he said, should be seen to be substantially affected by her depressive illness. She did not require hospital treatment.
14.	The judge considered those matters and also considered a pre‑sentence report. The report said that the risk of harm to others, specifically her son, could be greatly reduced following intervention from the Probation Service, mental health authority and social services. However, the author recognised that a lengthy custodial sentence was likely.
15.	That was the view taken by the learned judge. He concluded simply that the offence was such a dreadful offence that it had to be marked by a significant term of imprisonment.
16.	The matter came before this court as an appeal, leave having been given by the single judge, accompanied by a note from the appellant saying that she wished to withdraw her appeal. That seemed a strange decision in all the circumstances for her to have made. As then constituted, the court was not prepared to accept that abandonment, not least because no member of the court as it then was thought that this woman should in fact have been imprisoned having read the very detailed psychiatric evidence that was available.
17.	In those circumstances, the matter was adjourned in order that those who advised her could take proper instructions to see that she really did want to abandon the appeal. The court also obtained for itself a further psychiatric report from the prison medical officer. That report indicated that there were substantial causes for concern about the appellant, but nonetheless at that stage concurred with the view of Dr Shubsach that this was a case which did not call for any order under the Mental Health Act 1983.
18.	Her solicitors saw her again and it became apparent that her decision to cause the court to be informed that she wished to abandon her appeal was one taken for very unsound reasons and that she really did want to pursue her appeal. The matter has therefore proceeded on that basis, that there was no valid abandonment of the appeal.
19.	The next stage was that Dr Shubsach was asked to prepare a further detailed report. He did so. It has to be said that both his reports in this case are immensely helpful. He has obviously gone into the matter with considerable care and set out his conclusions very clearly and very helpfully to the court.
20.	In the course of his seeing her for the further report he now discovered that she was prepared to disclose that she had been suffering from auditory hallucinations. She had been hearing voices, some of which were said to be coming from the radio. He had no doubt at all that that account was entirely genuine and that it revealed that she was in fact suffering from a psychotic mental illness. That view was confirmed by the doctor from the prison who, once he knew of this further evidence, shared the view that the account was genuine and that it did require immediate treatment.
21.	It is unnecessary to detail all the steps which have taken place since then, but she has now been transferred to a hospital pursuant to an order made under section 47 of the Mental Health Act. The surprising feature about that transfer is that a restriction has been made pursuant to section 49 under section 41 of the Act. Neither of the doctors who had advised had for a moment suggested that that was a necessary or appropriate course and each indeed had concluded that it was not. We have seen no material that would justify the making of an order under section 41 nor do the facts suggest the need for such an order. 
22.	In those circumstances, we consider first whether or not the sentence of imprisonment was in fact a correct sentence. It is unnecessary for this court now to decide whether if circumstances had remained the same we would have concluded it was the wrong sentence because events have moved on so far as to cause the court to be certain that this is case that ought to be treated by a hospital order.
23.	Accordingly, what we intend to do is to quash the sentence of imprisonment. That will also quash the order by which she is presently being detained. We substitute for the sentence an order under section 37 of the Mental Health Act. The hospital where she will be detained is the same one, obviously, at which she is presently a patient. It is the Marlborough House Regional Secure Unit, Milton Keynes General Hospital, Milton Keynes. There is no need for us to make any order for her to be taken there because she is already there.
24.	So that there is no doubt about it, we make it perfectly clear that that order is not one with restrictions under section 41 of the Act. It is simply an order for her to be treated in hospital under section 37.
25.	This is a case where we have had considerable help, not only from the doctors to whom I pay tribute and who have gone to great lengths to make sure that the proper order was made in this case, but also from whose who have advised the appellant. Ms Hales has appeared before us and has always given this court considerable assistance on the number of the occasions when she has been before it, supported as she has been by her solicitors. We express our gratitude to them as well. For those reasons we propose to allow the appeal and make the order to which we have referred.