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KAMARA, R v. [2000] EWCA Crim 17 (18th February, 2000)
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)
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REGINA
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JAMES
KAMARA
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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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.
© 2000 Crown Copyright
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