CO/0224/2005
Neutral Citation Number: [2005] EWHC 784 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday, 15 April 2005

B e f o r e:

LORD  JUSTICE  LAWS

MR  JUSTICE  DAVID  STEEL
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B E T W E E N:

BRIAN  NAREY
Appellant
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HER MAJESTY'S CUSTOMS AND EXCISE
Respondent

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
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MISS MARTHA WALSH (instructed by Messrs Hamnett Osborne Tisshaw, West Sussex RH16 3PH) appeared on behalf of THE APPELLANT

MISS KATE WILKINSON (instructed by Her Majesty's Customs & Excise) appeared on behalf of THE RESPONDENT
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J U D G M E N T
Friday, 15 April 2005

LORD JUSTICE LAWS:  I will ask Mr Justice David Steel to give the first judgment.

MR JUSTICE DAVID STEEL:  

1.	This is an appeal by way of case stated from a decision of the Crown Court at Croydon.  The appellant appeals against the decision of His Honour Judge MacRae on 13 September 2004 ordering the appellant to be admitted to hospital under section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.  The order was made in circumstances where a jury had found that the appellant was under a disability such as to render him unfit to be tried, and a second jury having found that the appellant did the act charged against him as an offence, namely being knowingly concerned in the fraudulent evasion of a prohibition on the importation of 3.38 kilos of cocaine from Grenada.

2.	The form of order is in three parts:

	(a) an admission order, whereby in accordance with Schedule 1 of the 1991 Act the appellant was to be admitted to a hospital specified by the Secretary of State within two months;

	(b) a place of safety order, that, pending admission to hospital the appellant should be detained in Her Majesty's Prison Highdown; and

	(c) a restriction order, that in accordance with paragraph 2(1)(b) of Schedule 1 to the 1991 Act, the accused shall be treated as if an order had been made under section 41 of the Mental Health Act 1983 restricting his discharge without limitation of time.

The thrust of the appeal as originally presented is based on the submission that the criteria of section 41 were not satisfied in the present case.  Before considering this submission it is appropriate to set out the background.

3.	On 10 March 2004, the appellant arrived at Gatwick Airport from Grenada.  He was found to be carrying the equivalent of 3.38 kilos of pure cocaine.  He was arrested, interviewed and charged.

4.	Following committal to the Croydon Crown Court, a plea and directions hearing took place before His Honour Judge MacRae on 3 June 2004.  Issues regarding the appellant's mental health were raised and a psychiatric report was ordered.  

5.	The report of Dr Angus was considered at a further hearing on 22 July 2004.  The report states:

	   "5.1	Mr Narey is a sixty-five year old gentleman who was remanded to HMP Highdown on 11 March 2004.

	    5.2	When I examined him on 12th July 2004, he was clinically manic.

	    5.3	Mr Narey was unable to give a coherent history, and I have therefore concentrated on his mental state examination.

	    5.4	In Part II of this report I have outlined the attempts of the health staff at HM Highdown Prison to treat his manic state with the anti-manic medication Olanzapine.  It was clinically evident that Mr Narey was not complying with his treatment, which he confirmed to me.

	    ....

	   11.1	From my examination of Mr Narey I found [him] to be suffering from a manic episode.  His disorder is characterised by disinhibition, an irritable and expansive mood, thought disorder, grandiose and loosely-constructed delusions, racing thoughts, disturbed sleep and a raised libido.

	   11.2	I note that Dr George seems to have established that his mental health history is both chronic and that the course of his disorder is unusual in that it is both rapid cycling and a mixed affective picture.

	   11.3	It has not proved possible to treat his illness in prison.  He is not compliant with the medication.  This is not clinically unusual when patients are psychotic and have no insight.

	   11.4	When seen on 12th July 2004 he was not fit to plead.  He understood the nature of the charges against him, and he understood the role and function of the Courts.  However, he would have been unable to give evidence or follow proceedings on account of his thought disorder, irritable mood and diminished concentration.

	   ....

	   11.12	 Disinhibition and poor judgment are clinical features of mania.  It is not unusual for manic patients to run up large debts, or follow a course of action that later causes them intense embarrassment, or discomfort, when they have fully recovered.

	   11.13	Considering all these factors, overall I would recommend that Mr Narey is admitted to hospital under Section 35 of the Mental Health Act...."

6.	A further report was ordered to be made available for the fitness to plead hearing.  Meanwhile, the defence had instructed Dr George, to whom Dr Angus referred in the course of his report.  Dr George produced a supplementary report on 30 July, which was broadly in the same terms.  In paragraph T of his report, under the heading "Opinion", he says:

		"T.1	.... Mr Narey is presently under disability in relation to any potential Trial and/or while he awaits sentencing ....  He does not fulfil the criteria of Fitness to Plead and is not able to stand Trial.  In my opinion Mr Narey is suffering from Bi-Polar Effective Disorder current episode manic."

Dr George goes on to describe the symptoms of that condition and continues:

		"T.2	When Mr Narey was prescribed Olanzapine in early June this year, his mental state had improved.  That indicates he would respond clinically well to the anti-manic medication.  However, it will be necessary to choose a drug which does not have serious side effects ....  I was told by Mr Narey that he was discharged by a Mental Health Tribunal four years ago and since then he has not taken medication and he went on the road....

		 T.3	In my opinion Mr Narey is suffering from a mental disorder as recognised by the Mental Health Act 1983, namely a mental illness of a nature and degree to warrant his remand in hospital under Section 35 of the Mental Health Act 1983.  He requires an urgent assessment by his local medium secure unit for suitability to transfer to either a medium secure setting or a low secure psychiatric intensive care setting for a period of further assessment and treatment.  He represents a danger to himself of vulnerability to his physical health from suicide and homelessness due to his emerging mental illness and the resultant impulsivity and chaotic lifestyle."

That view of Dr George was confirmed in a further report of his dated 3 September 2004.

7.	In the meanwhile, on 17 August 2004, a third report was produced by Dr Llewellyn-Jones.  It is unnecessary to quote from it; it is confirmatory of the findings that had been made by Dr Angus and Dr George.

8.	On 13 September 2004, a fitness to plead hearing took place.  Both Dr Angus and Dr George gave oral evidence.  Dr Llewellyn-Jones' statement was read.  The jury found the appellant unfit to plead.  A second jury then found that he did the act alleged, ie the illegal importation of cocaine.  No appeal has ever been advanced to challenge either of these findings.  Thus the judge was faced with the terms of section 5(2) of the 1964 Act (as amended) which provides:

		"5(2) .... the court shall either --

			(a)	make an order that the accused be admitted, in accordance with the provisions of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, to such a hospital as may be specified by the Secretary of State; or 

			(b)	.... such one of the following orders as they think most suitable in all the circumstances of the case, namely --

				(i)	a guardianship order....;

			    (ii)	a supervision and treatment order ....; and

			   (iii)	an order for his absolute discharge."

9.	Having decided to make an admission order (and not one of the alternatives proffered by subsection (b)), its form was prescribed by Schedule 1 of the 1991 Act which as material reads:

		"2(1) A person who is admitted to a hospital in pursuance of an admission order .... shall be treated for the purposes of the 1983 Act --

			(a)	as if he had been so admitted in pursuance of a hospital order within the meaning of that Act made on the date of the admission order; and

			(b)	if the court so directs, as if an order restricting his discharge had been made under section 41 of that Act, either without limitation of time or during such period as may be specified as in the direction."

In the exercise of the discretion afforded to him under Schedule 1 2(1)(b), the judge directed that the restriction referred to should be imposed without limitation of time.

10.	On 15 September 2004, the appellant applied to the judge for rescission of that order.  As emerges from the case stated, the submissions presented to the judge broadly matched those advanced in the skeleton arguments on this appeal.  The outcome is set out in paragraphs 9 and 10 of the case stated as follows:

		"9.	The learned Judge raised the following issues prior to delivering judgment:

		  9.1	The index offence was one constituting a risk of serious harm to the public;

		  9.2	Regard had to be had to the past and the unpredictability of the appellant's behaviour leading to the index offence;

		  9.3	It was not necessary under the provisions of Section 2(1)(b) of Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 to hear from a psychiatrist.

		  9.4	Section 41(2) does not specify what evidence is to be heard; and

		  9.5	The court could not be assured that Mr Narey would be satisfactorily treated for his illness and supervised in taking his medication and thus could not be satisfied he would not present a risk of serious harm to the public.

		10	In his judgment the learned judge found that:

		 10.1	There are concerns as to what will happen if the appellant does not take his medication;

		 10.2	He was not in the position of being assisted by the treating psychiatrist;

		 10.3	Both psychiatrists pointed out that there is no definitive diagnosis and no appropriate medication.  In particular Dr Angus was at pains to point out that the appellant required a period of assessment in hospital; and

		 10.4	As a consequence, he was of the view that it was proper to invoke the provisions attaching a restriction order to the order for admission to hospital." 

11.	In due course, however, on 10 March 2005, the Secretary of State (in consultation with the responsible medical officers) became satisfied that the appellant could properly be tried and remitted him to the Crown Court at Croydon.  He was arraigned and pleaded guilty to the indictment.  Submissions were then made that the judge should consider imposing a hospital order under section 37 of the 1983 Act, and not a lengthy custodial sentence.  This issue has yet to be resolved.  We understand that the sentencing exercise will be conducted next week.

12.	As regards the earlier admission order, the thrust of the appellant's submissions as presented in a skeleton argument are as follows:

		"It is submitted that the learned judge erred in imposing a restriction order under paragraph 2(1)(b) in respect of the appellant in that:

			(a)	There was NO psychiatric evidence as to the appellant constituting a serious risk to the public and such evidence is required: R v Peter Goode [2003] EWCA 1698 (Admin) at paragraph 31;

			(b)	There was NO evidence of probable offences the appellant may commit, rendering arbitrary a determination that the appellant is likely to commit offences constituting serious harm: see transcript 15th September 2004 at pages 11E-F;

			(c)	The index offence does not constitute 'serious harm' for the purposes of section 41 of the Mental Health Act 1983 given its indirect nature; and

			(d)	The test for imposing an order under section 41 of the Mental Health Act 1983 cannot be framed in the negative, that is, it is not lawful to impose a restriction order where the Court cannot be satisfied that the appellant would not pose a risk of serious harm to the public."

13.	So far as the first of those points is concerned, in my judgment it proceeds on a false premise, namely that the criteria required by an order under section 41 must be satisfied in cases such as this.  In contrast, there is no requirement under section 5 of the 1964 Act (or indeed Schedule 1 to the 1991 Act) that evidence from more than one, or indeed any registered medical practitioner should be taken into account, or that one of the medical practitioners should give evidence orally, or that it must be established that special restrictions are needed to protect the public from serious harm.  

14.	The starting point on this issue is section 4 of the 1964 Act.  This provides for the question of fitness to be tried to be determined by a jury.  This determination can only be made on the written or oral evidence of two or more registered medical practitioners: see section 4(6).  Thereafter, once another jury has determined that the accused did the act, the mandatory requirement of section 5 applies.  (It is to be noted that it is a section which also is to be invoked in a case of any special verdict of "not guilty by reason of insanity").

15.	That that route for admission and restriction under section 5 of the 1991 Act is quite distinct from the route under section 41 of the 1964 Act is made clear in the decision in R v Grant [2001] EWCA Crim 2611.  In giving the judgment of the court, Richards J said at paragraph 52:

		"The procedures under the 1964 Act are not directed specifically to that question [ie whether a person suffers from a mental disorder sufficiently serious to warrant detention].  The issue under section 4 is whether the defendant is fit to be tried, which involves consideration of whether the defendant has sufficient intellect to instruct his legal team, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence.  Those criteria do not correspond directly to the criteria for a mental disorder sufficiently serious to warrant detention, and it may be possible for a person to be found unfit to be tried without his suffering from a mental disorder sufficiently serious to warrant detention.  Yet once a person facing a charge of murder has been found to be unfit to be tried, there is no further consideration of his mental condition under the statutory procedures prior to admission to hospital.  If the jury find under section 4A(2) that he did the act charged, it is mandatory for the judge to make an admission order under section 5.  The judge cannot consider whether such an order is justified on the medical evidence.  Thus no one is required specifically to address, prior to the person's detention, the question whether he suffers from a mental disorder sufficiently serious to warrant detention."

It is the respondent's submission, which I accept, that the rationale for distinguishing between the machinery for making an order under the 1983 Act and the machinery for making an order under the 1964 and 1991 Acts is that the court would have heard in the latter case medical evidence as to the claimant's health so as to establish the disability.

16.	It follows in my judgment that on its true construction section 5 of the 1964 Act and Schedule 1 to the 1991 Act does not contain any express requirement for psychiatric evidence that the defendant constituted a risk of serious harm to the public.  In short, the requirements of section 41 cannot be read across to section 5.

17.	Nonetheless, the court must be satisfied that a restriction (with or without limit in time) is justified; otherwise it would be unlawful.  It is not necessary to pray in aid Article 5 rights or indeed to consider the background to the legislation.  The only possible justification for restriction without limit of time must be one that the appellant (or his equivalent) poses a risk of serious harm to the public.  For this purpose it is almost inevitable that the court will benefit from the assistance of medical evidence.  In R v Fairly [2003] EWCA Crim 1625, Kennedy LJ made this observation in paragraph 11:

		".... We set aside the orders which were in fact made purportedly under sections 37 and 41 of the Mental Health Act 1983 and remit the matter to the Crown Court so that appropriate orders may be made under section 5 of the 1964 Act.  In doing so it seems to us that the Crown Court may well be disposed to make the order that the applicant be admitted in accordance with the provisions of Schedule 1 of the Criminal (Insanity and Unfitness to Plead) Act 1991 to such hospital as may be specified by the Secretary of State, but Miss English has made it clear in her submissions to us this mornign that there may be more doubt about whether at this stage it would be appropriate for a direction to be made under paragraph 2(1)(b) of Schedule 1 that the applicant be treated for the purposes of the 1983 Act as if an order restricting his discharge has been made under section 41 of the Act either without limitation of time, or for some specified period.  For that purpose, in order to decide whether such a direction should be made or not, the Crown Court may well be assisted by hearing medical evidence relating to the applicant's present state of mind."

18.	On this topic the practitioners who were called at the fitness to plead hearing were asked no questions, and indeed volunteered no evidence, as to the risk that the appellant presented to the public, with or without medication, let alone the risk of occasioning serious harm.  

19.	I for my part would accept that the instant charge, to which the appellant later pleaded guilty, involved a potential for serious harm to the public.  The importation of kilos of cocaine inevitably leads to the risk of serious harm to those to whom it is sold for consumption.  I also accept that it was appropriate for the court to take into account the risk to the appellant from failing to take appropriate treatment to restrain his symptoms: see R v Khan (1987) 9 Cr App R(S) 455, 461, and R v Kamara (CACD, 18 February 2000).  But the assumption that failure to take treatment would be likely to lead to further offences of like kind is, in my judgment, a step too far.  In that respect it is revealing that in the course of the hearing this topic was touched on in exchanges between Miss Walsh and Judge MacRae in the following way:

		"JUDGE MACRAE: Yes, but my concern is him stopping taking his medication once he is out.  That is my concern.

		MISS WALSH:  I understand your concern but section 41 is not there solely to compel someone to take their medication.

		JUDGE MACRAE:  I agree.

		MISS WALSH:  It is there to protect the public from serious harm.

		JUDGE MACRAE:  I know and I am of the opinion that if Mr Narey stops taking his medication there is a real risk of serious harm.

		MISS WALSH:  In what way, your Honour?

		JUDGE MACRAE:  Who knows, with Mr Narey?

		MISS WALSH:  Your Honour, in my respectful submission --

		JUDGE MACRAE:  He is unpredictable."

20.	Insofar as the potential for causing harm to the public presented by the appellant is concerned, the following seem in my judgment to be the relevant considerations:

	(1)  He has previous convictions.  But, save for a conditional discharge in 2000 for carrying an air weapon in a public place, all of his convictions run up to a date not later than 1962 (nearly 43 years ago).  They all involved theft and kindred offences.

	(2) The motivation for the present offence appears to have been to protect his daughter who had incurred a substantial drug debt.  

	(3) The reality is that he is now 65 years old.  He has worked for a long period of his life as a shop steward.

There is no finding in his ruling that Judge MacRae was concerned that the appellant would present a risk of serious harm to the public if he was not restricted.  All he said was:

		"I am concerned as to what will become of Mr Narey if he does not take his medication.  As I have already mentioned in the course of submissions to me I am not in the position of being assisted by psychiatrists who will be having the care of Mr Narey.  Indeed the curious aspect of this case is that both the psychiatrists who gave evidence before the first jury, although they did not give it in their evidence, have in their reports, which I have seen pointed out, that there is no definite diagnosis in the sense that no appropriate medication has been identified as yet and so far as Dr Angus is concerned he was at pains to point out that a period in hospital for assessment is needed."

In short, the judge made no finding whatsoever of any risk of serious harm.

21.	In my judgment the more likely outcome, in the event that the appellant was not restricted and was not persuaded to continue with his medication, would be a return to an itinerant life on the road which appear to have been the outcome when he fell out of the mental health scheme some time in 2000.

22.	For all those reasons I would allow the appeal but would need some assistance in answering the specified questions in the statement of case, which perhaps require some amendment or adjustment to reflect the scope of the argument as it has been presented.

23.	LORD JUSTICE LAWS:  I agree that the appeal should be allowed for the reasons given by my Lord.

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	The following amended questions were agreed by counsel as being the appropriate questions to pose for the opinion of the High Court:

		(1)	Is there a statutory requirement to hear oral evidence from a psychiatrist implied into paragraph 2(1)(b) of Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 via the application, mutatis mutandis, of section 41(2) of the Mental Health Act 1983?  

		(2)	Is it necessary to demonstrate a risk of serious harm from which the court believes the public need protection?

		(3)	Whether the offence of being knowingly concerned in the importation of illegal drugs is capable of constituting serious harm to the public?

		(4)	Whether there was sufficient evidence upon which an order, analogous to a restriction order, under paragraph 2(1)(b) might properly be made?

	The court answered questions (1) and (4) in the negative and questions (2) and (3) in the affirmative.

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