No: 199904949/W2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
                     Royal Courts of Justice
                     Strand
                     London WC2A 2LL

                            Tuesday 25th January 2000

B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE LATHAM

and

MR JUSTICE HOLMAN

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R E G I N A

‑ v ‑

P. A. M.

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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MISS R CAMPBELL appeared on behalf of the Appellant

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JUDGMENT
Tuesday 25th January 2000
1.	MR JUSTICE HOLMAN:  Late in 1996, the appellant, P.M., met a lady, SP, in a cafe. After that, they never had, objectively speaking and in truth, any kind of relationship. However, the appellant became and indeed remains obsessed with the lady, SP. He stalked her and he wrote to her a very large number of letters, couched in language that suggested the existence in fact of an intense and intimate relationship. The effect of these actions and activity has been to make the life of SP miserable.
2.	In a statement dated 20th August 1998, she said:
“I’m fed up of being harassed like this. I’m sick of receiving all these letters. This constant harassment has become very difficult for me. I’ve had enough now. No one should be harassed in this way and I feel if he came out of prison I would be very frightened.” 
3.	In May 1998, a Magistrates’ Court sentenced the appellant to 2 years’ probation for offences of harassment under the Protection from Harassment Act 1997. It was a requirement of the probation order that the appellant co‑operate with local psychiatric services. A restraining order was made at the same time under the provisions of section 5 of the Protection from Harassment Act 1997. That order was without limit of time, and prohibited him from contacting or  communicating in any way, either directly or indirectly, with SP. The order, which was in the prescribed form, states, in large print, at the bottom: “Warning, breach of this order is an offence punishable with up to 5 years’ imprisonment.”
4.	Regrettably and tragically, no sooner had that order been made than he continued to harass SP, and of course breached the order. Accordingly, on 3rd June 1998, a Magistrates’ Court revoked the probation order and sentenced the appellant to 12 weeks’ imprisonment for breaking the order.
5.	Despite that, he continued to write to and harass SP. During August 1998, he was committed to the Crown Court, for sentence, for further breaches of the restraining order, which remained in force. Whilst on bail pending that hearing, he continued to send letters to SP. In September 1998, he was sentenced to 18 months’ imprisonment for breaking the restraining order. Following that sentence, and whilst in prison, he continued to send yet more letters to SP. The letters referred to what he would like to do with her when he was released. He repeatedly expressed a hope and intention of marrying her. He fantasised about what his way of life would be with her, and he made reference to the sexual relationship that he planned that they would  have. He begged her to contact him, and sent her visiting orders so that she could visit him in prison. In one letter he said that he had intended to plead not guilty of harassing her, so as to force her to have to attend court because he knew that at court she would say that she loved him.
6.	He was brought before the Crown Court again for these yet further breaches of the restraining order. Late in 1998, there were interim orders for admission to hospital under the provisions of the Mental Health Act 1983. As a result of that, reports were prepared by two consultant psychiatrists, Dr Stephen Geelan and a Dr Martin Humphreys.
7.	However, by the time that this matter finally, as things turned out, came before the Crown Court on 27th May 1999, Dr Humphreys, in particular, had not yet finalised his view as to the state of the appellant’s mental health, and as to the appropriate means of tackling this very difficult problem.
8.	On 27th May 1999, the appellant, who by then had discharged the solicitors who had previously acted for him, appeared in person. The judge, His Honour Judge Cole, clearly felt, as indeed he said in terms, that enough was enough and that he should, as it were, finally dispose of this matter on that date.
9.	During the course of his sentencing remarks, he said:
“You have persisted in your harassment of this unfortunate girl who has made it abundantly clear she wants nothing whatsoever to do with you and you do not acknowledge that. Clearly I have no alternative other than to send you to prison. The question is for how long. As there have been persistent acts of harassment, and as there is still whilst you have been on bail, subject to a condition of residence at the Rayside clinic, you have gone on with your harassment. Enough is enough. I have no alternative other than to impose a lengthy sentence upon you.
You will go to prison for four years in respect of these matters. Those sentences to run concurrently with each other. I give you credit for your guilty plea, otherwise it would have been for a longer period.” 
10.	It is perhaps relevant to mention that the maximum sentence for breach of a restraining order is one of 5 years’ imprisonment.
11.	The appellant then applied for leave to appeal from that sentence and leave was granted by the Single Judge, Eady J. The grounds of appeal, in his application for leave to appeal, are two in number. The second of those grounds is that having regard to a decision of this Court in the cases of R v Liddle & Hayes in May 1999, the sentence of 4 years’ imprisonment which was imposed upon him was in all the circumstances of the case excessive.
12.	Having regard to the other ground of appeal, and  to the way in which we propose to deal with this matter today, it is not necessary for us further to consider that particular ground. Suffice it to say that when there are repeated acts of harassment of this kind, despite not only the existence of a restraining order, but previous shorter terms of imprisonment, at some stage it clearly becomes inevitable that a very long term of imprisonment must be imposed.
13.	However, the first ground of appeal was that when imposing the custodial sentence of 4 years’ imprisonment, the judge failed to take into account the contents of the two psychiatric reports which had been submitted to the court by the appellant’s previous firm of solicitors. We cannot in fact say whether that is so, although it is correct to observe that during the course of his sentencing remarks, the judge did not make express reference to the existence of any of the reports.
14.	As we have observed, because of the interim state of Dr Humphreys’ views in particular at that time, the conditions under section 37 of the Mental Health Act did not exist on 27th May 1999, to make a Hospital Order under that section.
15.	Time and events have, however, moved on. The appellant has been further assessed during the latter  part of 1999 for the purposes of this appeal by both Dr Humphreys and Dr Geelan.
16.	So far as Dr Humphreys is concerned, he is a consultant psychiatrist at the Rayside Clinic, in Birmingham, where the appellant was admitted during the course of the interim orders.
17.	By a report dated 8th December 1999, Dr Humphreys reports as follows:
“In clinical terms, in my view Mr M. is suffering from a paranoid psychosis with a strong affective element. This amounts to a mental illness in terms of the Mental Health Act 1983. In addition, his illness is of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment. I am in no doubt that the illness from which he is suffering is capable of being treated and that, despite the difficulties to date in relation to unwanted effects of medication, Mr M. will benefit from hospital care. Central to his treatment at the current time is the use of well recognised and effective psychological therapy. In my judgment Mr M.’s offending behaviour was directly linked to his abnormal mental state, and his beliefs about his relationship with [SP] arose as a result of mental illness.
In relation to disposal, I would respectfully recommend that in the light of the above the court consider making a hospital order under Section 37 of the Mental Health Act 1983.” 
18.	At the end of that report, Dr Humphreys confirms, as is a requirement under section 37 of the Act, that should the court decide to make a Hospital Order, with or without restrictions on discharge, a bed will be available for Mr M.’s admission to Rayside Clinic  with immediate effect. There is an addendum report from Dr Humphreys, dated 16th December 1999, which however is substantially to the same effect.
19.	The second psychiatrist, who has examined the appellant and reported is Dr Stephen Geelan MA MB BS, MRC Psych who has also given oral evidence to us today. By his written report, dated 30th December 1999, he reports as follows, reading from page 8 of that report:
“In my opinion the diagnosis of delusional disorder, erotomanic type most specifically defines his disorder. In my opinion this disorder is a mental illness as used within the Mental Health Act 1983.
My diagnosis is consistent with that of a paranoid psychosis with a strong affective element as concluded by Dr Humphreys. Dr Humphreys’ diagnosis is a border diagnostic category, which could include my diagnosis.
It is my opinion that Mr M.’s index offence was directly related to his mental illness. Additionally he has so little insight into his illness and its impact on others that he could not safely be provided with treatment for his illness in the community. Therefore he requires hospital treatment. Therefore it is my recommendation that Mr M.’s mental illness is of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment under the provisions of section 37 of the Mental Health Act 1983.” 
20.	The first matter for us to consider is whether it is appropriate in this case to substitute a Hospital Order under section 37 of the Mental Health Act 1983 for the sentence of imprisonment which was imposed by the judge in May 1999. In our judgment, all the conditions  in section 37 of the Mental Health Act 1983 are satisfied in this case. There is the written or oral evidence of two registered medical practitioners. They are in agreement as to the underlying mental disorder from which the appellant suffers. They are in agreement in recommending that that is treatable in hospital. Further, it has been confirmed to us that a hospital bed is available. We accordingly propose to allow this appeal and substitute a Hospital Order under section 37 of the Mental Health Act 1983.
21.	The next question which we have to consider is whether we should go further and make a restriction order under the provisions of section 41 of that Act. As to that, Dr Humphreys, in his written report, reported as follows, reading first from his report of 8th December 1999:
“The matter of a restriction order under Section 41 is, of course, a matter for the court. Nevertheless, I would recommend that the court consider the possibility. This view is based on the fact that Mr M. had become increasingly intrusive in the life of [SP] and while his attentions were directed towards her as an individual, she was and still is, of course, a member of the public and in my judgment, and based upon the knowledge of the academic literature surrounding the issue of stalking, it is possible that Mr M. may have proceeded to constitute more of a danger to her than was previously the case. Mr M.’s abnormal beliefs about his relationship with [SP] were so entrenched and intractable that he may have been sufficiently driven to challenge others who were seeking to protect the victim from his attentions. In addition,  given the nature of [his] mental illness and the constellation of symptoms described, it is possible that he may transfer his attentions to others at some point in the future, were he to be at liberty to do so.” 
22.	In his more recent report dated 16th December 1999, Dr Humphreys reports on this aspect, as follows:
“The risk of his committing further offences if set at large is, therefore, very considerable. In relation to the protection of the public from serious harm, there is no doubt that [SP] and her family have suffered greatly as a result of Mr M.’s persistent attentions... It is well recognised that with this form of pathological and persistent attachment, even when one individual is removed from the scene the beliefs may become attached to another very readily and rapidly. A restriction order under Section 41 of the Mental Health Act 1983 would ensure Mr M.’s continued statutory supervision in the community at any point in time in the future when he is well enough to be conditionally discharged. In my view this would be an appropriate measure.” 
23.	So far as the second psychiatrist, Dr Geelan, is concerned, in his written reports he discussed, at some length, the question of whether or not it is necessary and appropriate to impose a restriction order in this particular case. His report concluded:
“It is highly likely that if Mr M. were to be released into the community after successful treatment that he may experience a relapse of his psychotic symptoms. I am concerned that with the lack of insight Mr M. currently shows, he would not readily submit to psychiatric treatment in the community and hence his condition could not be appropriately monitored. In these circumstances it is highly likely  that Mr M. would again start to harass [SP]. It is for the court to decide whether this harassment amounts to serious harm.
Imposing a restriction order on Mr M. would not necessarily render [SP] safer. He already blames her for his incarceration and although he currently denies hostility towards her, it may be that the imposition of a restriction order with this probable lengthening of his stay in secure care may increase his hostility towards [SP].” 
24.	Dr Geelan has very helpfully, and indeed necessarily, given oral evidence to us this morning. During the course of that evidence he has confirmed his diagnosis. He confirms that his diagnosis and that of Dr Humphreys are consistent with each other. He has again stressed that the decision, whether or not to recommend a restriction order under section 41, has been a very difficult one. He points out that certain factors, which may raise the risk to the victim or other members of the public in this class of case, are not present in this particular case. There is no previous history of severe antisocial behaviour by the appellant, before he met this particular lady. Nor has he indicated any development of attachments to other people so as to display multiple objects of his love. Dr Geelan points out, however, that there may in fact be some advantages to the imposition of an restriction order in this case  in that it may, we stress the word may, make it possible for health care officials to give to Mr M. some closely monitored freedom at an earlier stage than they might otherwise do. On balance, it is the view of Dr Geelan that a restriction order should be made in this case.
25.	In our own judgment, having regard to the persistence of this offence in this particular case, and to the degree of risk of his committing further offences, if he is set at large in the community, it is necessary, for the protection of the public from serious harm, to make a restriction order.
26.	The lady, SP, is of course a member of the public, and other members of her family may be at risk as well. It is not necessary, for the purposes of section 41, that the harm should be purely physical. SP has already suffered considerable mental harm as a result of the activities of the appellant, and as Dr Geelan has pointed out, victims in this type of case and their families can, over a period of time, suffer a great deal of harm.
27.	For all those reasons, we have come to the view that this is a case where it is necessary to make a restriction order under section 41, and that we should and do make one. That order will be without limit of  time. The order under section 37 will specify that the appellant is to be admitted to the Rayside Clinic in Birmingham.