No: 201001515 A3 
Neutral Citation Number: [2010] EWCA Crim 1383
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 26th May 2010
 
B e f o r e:

LORD JUSTICE TOULSON 

MR JUSTICE COOKE 
 
MRS JUSTICE SWIFT DBE  
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R E G I N A 

v 

H P (AKA C)
 
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Mr S Fidler (solicitor advocate) appeared on behalf of the Appellant
Mr JD Whitley appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE TOULSON:  This is an appeal by leave of the single judge by Mrs H P from a sentence passed on her by HHJ Edmunds QC on 17th February 2010 at Isleworth Crown Court for three offences of making bomb hoax calls.  The judge made a hospital order under section 37 of the Mental Health Act 1983 in respect of each of the three offences and also made her subject to a restriction order under section 41 of the Act.  The appeal is against the restriction order.
2.	We are going to allow the appeal and the remarks which follow are very much addressed to Mrs P herself.
3.	The facts can be told very briefly.  On three occasions, in September and October 2009, she made hoax phone calls to the authorities alerting them to the presence of bombs at Heathrow Airport or on aeroplanes there.  She also asked the court to take into consideration five similar offences committed by her in August 2009.  
4.	The reason that she made the calls is that she is a deeply troubled person.  The details are set out in a number of psychiatric reports.  It is unnecessary for us to read out the full details of those reports.  She has a long of history of contact with psychiatric services.  She has an unstable personality and, when crisis events occur in her life, she feels compelled to do acts of the kind described.
5.	The psychiatrists were agreed on all essentials.  They believe that she is capable of being helped.  As with so many cases of mental difficulties, she requires and deserves understanding for what is a deeply unpleasant condition for her to experience.  She is the last person in the world to want to feel driven to commit these offences.  The question for her and for society is how she can be supported, understood and helped not to feel the need to continue to do so.
6.	The doctors believe that the best way of doing this is by a combination of pharmacological and psycho‑social treatment and they believe that this is not best done under a section 41 restriction, for reasons which they have explained in their reports and which the consultant currently treating her, Dr Parkin, explained in oral evidence.
7.	The judge gave the matter anxious consideration and, while he acknowledged the force of the medical evidence, he nonetheless felt that the public safety required that a section 41 restriction should be made.
8.	We respect his reasoning but disagree with his conclusion.  The matter has been further clarified by a report ordered by the Single Judge on her present condition.  Dr Parkin, in his latest report, says that her mental state remains unchanged.  He says that it is generally acknowledged that generic in‑patient units are not the best place to treat emotionally unstable personality disorders and indeed often make maladaptive behaviour worse.  He says that he does not think that a restriction order that keeps Mr P in hospital for a longer period of time is going to assist in her treatment and it will not reduce the risk of further offending.  He adds: 
"Indeed, continued incarceration is likely to increase risk." 
He also observes in his report that, while under detention, she has been able to get to a pay phone and, if she had the right amount of cash, would therefore have been able to make further phone calls.
9.	Looking at the matter starkly, we are therefore facing this situation.  The hospital, in reality, is operating as a form of prison, because she is not making medical headway there, but it is not a particularly effective prison because it does not prevent her from getting to a phone.  Her treatability is likely to be made worse in an in‑patient unit.  In these circumstances, we see no value in maintaining the present regime.  We consider that the right course is to set aside the restriction.
10.	We have considered whether it would be useful for the protection of the public to impose a different form of restriction order, not a medical restriction order but an ASBO, which would prohibit her from making false calls to the emergency services.  But that would add nothing to the criminal law.  Mrs P knows very well that to make hoax calls is a serious criminal offence.  She knows the appalling consequences it has for the public.  She knows that people whose jobs are to protect all of us, including herself, then go in a false direction and that this can cause untold trouble.  She is very conscious of those matters and it is difficult to see that an ASBO is going particularly to affect her in helping her not to make them.
11.	The medical profession can go as far as it can and her family can go as far as they can.  Ultimately, time will tell whether Mrs P is able, when faced with this inner drive to make a hoax phone call, to stop herself from doing so, to realise, to be able to think about others, to know the huge harm that it does and just to stop and ask for help at that point.  We profoundly hope that this will be the case, and the doctors will do everything they can to help her and support her.  If, tragically, it proves not to be the case and she finds that she does make such phone calls, she knows as well as anybody else that the inevitable result is that the criminal justice system will come back into play and she will have to face punishment.  But we profoundly hope that that will not happen.  
12.	For those reasons, we allow the appeal and set aside the restriction order.
13.	Mrs P, you have followed all that, I know.  Well, we hope for the best.  Thank you very much.  Thank you, Mr Fidler.
14.	MR FIDLER:  Thank you very much, my Lord.