No: 200100047/W3
Neutral Citation Number: [2002] EWCA Crim 165
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
 
Thursday 17th January 2002
B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE CRESSWELL

and

MR JUSTICE GOLDRING

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R E G I N A

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M R

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR M BUCKLAND appeared on behalf of the APPELLANT

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JUDGMENT
1.	MR JUSTICE GOLDRING: The appellant is 35 years old. He was of good character. On 17th August 2000, he pleaded guilty at the magistrates' court to an offence of arson. He was committed for sentence on 24th November, of the same year. His Honour Phillpot made a hospital order under section 37 of the Mental Health Act 1983. He imposed a restriction order under section 41. The appeal is solely in respect of the imposition of that order.
2.	The facts of the offence shortly were these. The appellant is a paranoid schizophrenic. From October 1992, he lived in a development of maisonettes in south west London. The block consisted of 109 premises for residential use, not all of which were occupied. At about 10.30 in the morning of Friday 23rd June 2000, the appellant piled up some bed clothes in the centre of his living room. He set fire to them. He then left the flat.
3.	The emergency services were summoned. It took 40 minutes for the fire service to extinguish the fire. A number of residents had to be evacuated. The damage to the building would cost some £235,000 to repair.
4.	About an hour after starting the fire the applicant returned to the premises and was arrested. He showed the officers a lighter and admitted starting the fire. He said he had not anticipated the fire would spread so far. He thought that people were playing games with him and he did not have any intention to harm himself. He said he was mentally ill but not prepared to take medication. He was considered too unfit to be interviewed.
5.	Before the sentencing judge there was a pre-sentence report, referring to the appellant's mental illness which had been deteriorating for some time. He represented, it was said, a significant risk of harm to the public and himself, until he gained sufficient insight into his illness and took his medication.
6.	There were several psychiatric reports before the judge. It is not necessary to summarise each of them. The position by the time of sentence was that the illness was in remission. This was likely to be due to the medication and the environment in which the appellant then was, namely, undergoing treatment in hospital.
7.	Two of the psychiatrists said in terms that an order should made under section 37 of the Mental Health Act. The psychiatrist under whose care the appellant was, was Dr Pierzniak. His report indicated that such an order ought to be made. It indicated that should the appellant re-offend, consideration should be given to an order under section 41. That psychiatrist gave evidence. He dealt with the question of a restriction order; he said in terms to the judge that, in his opinion, such an order should not be made.
8.	The judge, in sentencing, indicated that the requirements of section 37 were fully made out. As to the imposition of a section 41 order, he said:
“...in my judgment the statutory systemic control of release is necessary, particularly considering the sad past history adequately set out in the reports and the nature of this offence. The requirements of section 41 are made out and in my judgment such an addition to section 37 is essential for the protection of the public.” 
9.	Since providing a report and giving evidence to the judge, Dr Pierzniak has provided this Court with an up-to-date report. It is clear that the appellant has been complying with the treatment. He repeats his view that a section 41 order would not be appropriate. It is not necessary, in the circumstances, for us to quote from that report.
10.	Having read the transcript it is clear, in our view, that none of the psychiatrists was suggesting a restriction order; the possibility was contemplated. The fact that no one suggested such a restriction, did not mean that the judge could not impose it, after consideration of the evidence and the requirements of the section. We can understand how he came to do so here.
11.	However, given the two reports and the evidence of Dr Pierzniak, our view is that such an order probably was not appropriate; it is not appropriate now.
12.	Having regard to all the reports before us therefore, we are of the view that that order under section 41 should be quashed. Accordingly that is the order that we make; to that extent this appeal is allowed.