No: 2000/5525/Y1
Neutral Citation Number: [2002] EWCA Crim 785
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday 19th March 2002
B E F O R E :

LORD JUSTICE KAY

MR JUSTICE PITCHERS

and

THE RECORDER OF LIVERPOOL
His Honour Judge David Clarke QC
(Sitting as a Judge of the CACD)

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R E G I N A

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M. C.

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Non-Counsel Application

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JUDGMENT.
1.	THE RECORDER OF LIVERPOOL: This is a renewed application for leave to appeal against sentence, leave having been refused by the single judge. The applicant first seeks an extension of time of 41 days, which we grant.
2.	The applicant is 47. On 19th July 1999 he pleaded guilty in the Preston Magistrates Court to five charges of breach of a restraining order which had been made at the same court three months earlier under section 5 of the Protection from Harassment Act 1997, at which time he had also been sentenced to three months' imprisonment for an offence of harassment. Following his pleas of guilty to breaches of the order he was committed to the Crown Court for sentence.
3.	The original restraining order had been made on 8th April 1999. The victim of the course of action which he had committed was a lady called C.T. who lived with her family near the applicant and between 1997 and 1999 she had reported numerous incidents of her car being tampered with and broken into with items being taken. Video cameras were installed in her living room and the tape showed the applicant to be responsible.
4.	Having served his three month sentence he was released from prison on 21st May 1999. Shortly afterwards he was again seen on video camera approaching Mrs T.'s home and motorcar contrary to the restraining order. When he was arrested on 10th July he said: “I don't know what you're talking about. I haven't been near her car.” The applicant was a man who believed that he had a military connection and his habit was to patrol the streets near his home in the belief that it was necessary to keep order.
5.	Having been committed to the Crown Court for sentence there was assessment by psychiatrists and an interim hospital order was made under section 38 of the Mental Health Act 1983 whereby he was admitted to Calderstones Hospital at Whalley for detailed assessment with a view to a Crown Court disposal by way of a hospital order. In due course reports were prepared and on 14th July 2000, which is a year after he had been committed for sentence, before His Honour Judge Townend with Justices, a hospital order was made under section 37 of the Act. The court went on to make a restriction order pursuant to section 41 without limit of time and it is against that part of the order only that the applicant seeks leave to appeal.
6.	His application was refused by the single judge. It was then renewed before the full court on 29th October 2001. That court, considering the psychiatric reports of Dr Plunkett and Dr Foster, which had been before the sentencing court, was left in doubt whether the statutory foundation had been laid for the making of a hospital order, in that only the report of Dr Plunkett dated 15th June 2000 made it clear in terms that in the doctor's opinion the applicant's mental impairment was a condition which treatment was likely to alleviate or of which treatment was at least likely to prevent deterioration. Dr Plunkett had recommended a hospital order.
7.	The court also looked at the report of Dr Foster of 24th January 2000 which said that it was not yet clear at that time that hospital treatment would be beneficial or would prevent deterioration and thus the full court sought further medical evidence before reaching a conclusion whether the order itself had been properly made. It may be that the full court did not appreciate that that report of Dr Foster had been supplemented by a further report prepared by the time of the sentencing hearing, dated 29th June 2000 and recommending a hospital order. That was a very brief report. Dr Foster gave oral evidence at the hearing and it was clear from her oral evidence, though not spelt out in terms in that second brief report, that she did consider the applicant to be rightly placed in hospital and did consider that his treatment was proving effective in at least preventing a deterioration of his condition.
8.	Since October 2001 two further reports have been prepared and are before this court: from Dr Chattree dated 21st January 2002 and from Dr Matthews which is undated but recent. These reports both confirm that the mental impairment is one which treatment is likely to alleviate or at least to prevent a deterioration. Thus the anxieties of the full court on 29th October are alleviated.
9.	However, the question remains whether the applicant can properly argue that the restriction order under section 41 should not have been imposed. That section provides by subsection (1):
“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'.” 
10.	Subsection (3) of that section sets out the special restrictions applicable to a patient in respect of whom a restriction order is in force, which include the restriction that the power, for example, to grant leave of absence, or to transfer a patient, shall be exercisable only with the consent of the Secretary of State.
11.	At the time of the sentencing hearing neither Dr Plunkett nor Dr Foster did consider a restriction order to be necessary. Dr Foster gave oral evidence and was asked what was the difference between the regime without and with a restriction order and she said this:
“Your Honour, on a day-to-day basis there would be very little difference. Mr C. would continue to reside in a medium secure unit on a locked ward. In practice, the difference would be if there was a restriction order in place the Home Office would have overall authority over the length of admission, any restrictions that were put on his movements within the community, leave and any discharge package that would eventually be planned.” 
12.	The learned judge intervened:
“In effect no real difference, it is only save towards the end.” 
13.	Although the witness replied “That is correct, yes”, it does appear to us that the learned judge may not have fully taken into account the longer answer which the witness had just given because in his sentencing remarks, in sympathetic terms, the learned judge addressing the applicant said that a hospital order was the only sensible order in his interests and went on:
“You suffer from mental impairment. That is not of course your fault and Calderstones are the best people to try and help you with that situation so that you can lead in due course as happy a life as people can expect, and for the reasons that are contained in the reports we have come to the conclusion that it is necessary for the protection of the public from serious harm to make a restriction order.
Again that does not really add very much to your problems.” 
14.	Later on in connection with the restriction order he said:
“So we make the restriction order without limit of time but that is meaningless in real terms, it simply means that when Calderstones and other people judge it is right you will move on. We hope that that is sooner rather than later.” 
15.	It does not appear to this court that although he did refer to serious harm, that the learned judge has expressly addressed the question whether the order was necessary for the protection of the public from serious harm from the applicant. The applicant's activities in and around the street in question had been clearly a serious nuisance to residents there and to one family in particular, but that is not necessarily a foundation for a restriction order. But more significant today is the recent opinion of the doctors that not only is the restriction order unnecessary but in Dr Matthews' opinion it hampers the hospital's ability to provide some of the treatment that he needs, namely therapeutic rehabilitation within the community which under a restriction order requires the consent of the Secretary of State. It is not therefore, as the sentencing judge suggested, a matter of no practical importance whether a restriction order is in place or not. Thus though this court fully appreciates the cautious motive of the learned judge and Justices in deciding to impose the restriction, it is not a case in our judgment in which the foundation was properly laid for it.
16.	Accordingly, we grant leave to appeal, quash the restriction order, but of course leave in place the hospital order under section 37 of the Mental Health Act 1983. The appeal is allowed to that extent.