Neutral Citation Number: [2014] EWCA Crim 1641
Case No. 2014/02246/A1

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  22nd  July  2014

B e f o r e:

LADY  JUSTICE  MACUR  DBE

MR  JUSTICE  IRWIN

and

MR  JUSTICE  GREEN

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R E G I N A
 
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Miss S Fearon appeared on behalf of the Applicant

Mr D Atkinson appeared on behalf of the Crown
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J U D G M E N T
LADY JUSTICE MACUR:  
1.  On 2nd and 4th April 2014 in the Crown Court at Bolton the applicant appeared for sentence.  He was sentenced to 18 months' imprisonment with a hospital and limitation direction pursuant to section 45A of the Mental Health Act 1983.  A Confiscation Order in the sum of £143.25 and a Victim Surcharge Order of £100 were made.  He had previously pleaded guilty to an offence of conspiracy to steal. A co-accused, Alex Hood, pleaded guilty to the same count and was sentenced to 22 months' imprisonment.

2.  The applicant's application for leave to appeal against sentence has been referred to the full court by the Registrar.  

3.  The Advice on Appeal submitted on behalf of the applicant contains two grounds: first, that the judge was wrong in principle to make a section 45A hospital and limitation direction when the conditions for making a restriction order under section 41 were not met; and second, that a section 37 order was the appropriate order.  Those orders and directions refer to the provisions of the Mental Health Act 1983, as amended by the Mental Health Act 2007.

4.  The Registrar has also referred the making of the Victim Surcharge Order to the full court on two separate issues.  First, pursuant to section 161A (4)(b) of the Criminal Justice Act 2003 "a court does not deal with a person if it makes an order under the Mental Health Act 1983", and is not therefore required to order the payment of a surcharge.  Therefore, if the hospital and restriction direction is an order under the Mental Health Act 1983, the victim surcharge is inapplicable.  Second, the amended surcharge order regime was brought into force on 1st October 2012 by the Criminal Justice Act 2003 (Surcharge) Order 2012 (SI 2012/1696).  However, article 7(2) of that instrument provides that the previous surcharge order regime will continue to apply if any one or more of the offences that are before the court were committed prior to 1st October 2012.  In such an event a surcharge order of £15 could only be imposed if the sentence included a fine.

5. The issues for our consideration are primarily ones of construction.  We grant leave.  

6.  It is necessary only to make brief reference to the facts of the offence.  The appellant (as he now is) was an in-patient at the Alpha Hospital, a secure facility for patients with a variety of mental health problems.  The co-accused had worked there for five years as a Clinical Support Worker.

7.  Some patients in the unit had their own bank accounts and their bank cards were kept in the unit safe.  Three patients alleged that money had gone missing from their personal accounts by way of withdrawals from cash machines.  

8.  In October 2012 police obtained CCTV footage that showed the co-accused was responsible for the withdrawals.  On 22nd October 2012 the appellant wrote a letter in which he suggested that he had seen the co-accused take a patient's bank card and was offered money to keep quiet.  The co-accused had given him the card, and they withdrew money on it which they split and used it to make purchases.  The letter also said that the co-accused had forged signatures for cash withdrawals from patients' accounts, and that he had also acquired another patient's PIN and card and had made withdrawals.  The letter claimed that the applicant had acted under pressure from the co-accused.  He said that he had received a bank statement.

9.  Text messages sent between the applicant and the co-accused between July and September 2012 were recovered from their respective mobile phones.  They were clearly of a friendly nature, but in them the two discussed their targeting of the three complainants and the steps that needed to be taken to avoid detection.  The texts finally concluded after the commencement of the police investigation in October 2012 with the appellant apparently agreeing to take the blame and "do a runner" in return for money from the co-accused.

10.  A combined total of £7,365 odd was taken from the three complainants.  The bank cards had been obtained from the hospital and then either used on-line or at cash machines during the patient's day leave from the hospital.  Sums were also taken from a collective hospital account by way of a number of transactions, ranging from the nominal to several hundreds of pounds in amount.  

11.  In interview the co-accused admitted involvement, but claimed that he had only become involved under threat from the applicant.  The applicant made admissions in interview and said that they were both joint participants.

12.  The appellant had 31 previous court appearances for 90 separate offences. These included 49 for offences of dishonesty between 1987 and 2004.  He also had convictions for assault occasioning actual bodily harm in 1987, possession of a bladed article and a prohibited weapon in 2003, and battery in 2006.  In 2007 he was found unfit to plead to an offence of burglary.  He was made subject to an order under section 37 of the Mental Health Act 1983.  

13.  A pre-sentence report, dated 3rd January 2014, was heavily dependent, understandably so, upon the psychiatric opinions obtained.  The pre-sentence report concludes that the appellant's behaviour would not be manageable in the community or in a prison environment at present.  It supports the psychiatrist's "recommendation that a suspended custodial sentence which would allow [the appellant] to continue to receive treatment whilst detained under section 37 of the Mental Health Act is the most appropriate sentencing option".

14.  There were two psychiatric reports before the court.  The first, dated 3rd October 2013, was prepared by Dr Pannu, a Consultant Forensic Psychiatrist and Clinical Director for Medium Secure Personality Disorder Services at Alpha Hospital, Bury.  He is approved under section 12(2) of the Mental Health Act 1983.  In his opinion, the appellant had an established diagnosis of personality disorder.  He had been an in-patient of Mental Health Services for over six and a half years.  There was little evidence that he was suffering from a mental illness such as schizophrenia.  His problems emanated from his personality disorder – a mixed personality disorder with emotionally and dissocial features.  His behaviours in hospital had included absconding, escape, bringing illicit substance onto the ward, aggression and violence towards staff, racial abuse of staff, and the making of false accusations against staff.  This pattern of behaviour escalated during his time in care.  He had engaged in some therapeutic options, which appear to have been of some benefit, but then his involvement in the fraudulent activities subsequently came to light.  In addition to the present offence before the court, the appellant had also become adept in securing privileged information from peers and staff and using that information to threaten and intimidate others into trading items with him for extortionate prices.  He was also being investigated for defrauding mail order catalogue companies.  He had posed significant difficulties upon admission to hospital.  His risk behaviours and offending patterns appeared to become more refined and sophisticated during his time in care.  The main risk centred around the exploitation of other vulnerable individuals, aggression and interpersonal violence, subversion of security, misuse of both illicit substances and prescribed medications, trading with other peers, and the secretion of medications.  He could present as extremely intelligent, adept and manipulative.  There was evidence of psychopathy in his obtaining the use of privileged information to destabilise the therapeutic milieu of the ward.  He was himself a vulnerable individual who suffered from a severe mental disorder.  He had periods of low mood and poor stress-coping strategies.  He required further intervention centred upon his core personality pathology and the resulting behaviours.  He required psychological intervention to help him improve his emotional regulation and coping mechanisms.  In the longer term he required specific offence-focused intervention to reduce the risk of offending.  Discharge from hospital as at the date of the report would be precipitous and would lead to an escalation of risk such that there would be a considerable degree of risk of harm to others and to himself.   He warranted continued detention under medium secure conditions which provided the necessary procedural, relational and physical security aspects to maintain and manage his risks.  The recommendation was made that he remain liable for detention in hospital for treatment without interruption.  To this end, a specific recommendation was made for a suspended sentence so that treatment could continue whilst he remained detained under section 37.  An alternative option was the imposition of a hospital direction under section 45A.  It was likely that, if the court were minded to impose such an order, the appellant would serve the length of the order in hospital, at which point he would revert back to being covered by section 37, given the nature and degree of his mental disorder.

15.  A report dated 24th March 2014, prepared by Dr Hodgson (a Consultant Psychiatrist also approved under section 12(2) of the Mental Health Act 1983) agreed with the diagnosis of mixed personality disorder with emotionally unstable and dissocial features.  He stated that the appellant posed significant management difficulties.  He identified the risks and the required interventions.  He considered that appropriate treatment was available within a Specialist Medium Secure Personality Disorder Service and recommended that a disposal under section 45A of the Mental Health Act was considered in view of his risk profile and his meeting the criteria for detention under the Act.  The benefit would be that, while he was working well with treatment in hospital, he could make steps towards progressing with the treatment of his underlying mental disorder.  Should the therapeutic alliance break down and treatment become impracticable, he could then be transferred to prison to serve the remainder of his sentence, followed up with social supervision from the Criminal Justice Services.

16.  The judge, having heard evidence from Dr Hodgson, proceeded to sentence the appellant for what he rightly regarded to be "a sophisticated, planned and persistent course of action" and that "both defendants were in it together as a team".  He said that he bore in mind that the appellant was receiving treatment under section 3 of the Mental Health Act, and that at the time of the offence had been receiving treatment under section 37.  It was patently clear from the reports and the oral evidence of Dr Hodgson that the appellant suffered from a personality disorder.  Dr Hodgson was concerned that he posed a risk to the public, although not in the context of offences of violence.  The risk that he posed would be one of a financial nature, whether by burglary, fraud, or relating to substance misuse.  Dr Hodgson did not take the view that he posed the risk of "serious harm" within the meaning of section 41 of the Act.  The judge considered that the question was whether the court should make an order under section 45A of the Mental Health Act, or a hospital order under section 37.  

17.  Having made reference to R v Ahmed [2012] EWCA Crim 99, the judge considered that there was an element of culpability in the appellant's case which required punishment.  Bearing in mind the points made on his behalf regarding the provisions of the Act, he initially considered that it would  not be appropriate to impose a section 41 limitation direction under section 45A(3)(b), but that the appropriate order would be a hospital direction under section 45A.  The prison sentence would reflect the nature of the appellant's involvement and culpability in the matter, although it was accepted that he had committed the offence together with someone who was his carer.  Account was taken of his early guilty plea, his record and all other circumstances.

18.  The matter was re-listed two days later under the slip rule after it had been brought to the judge's attention that he could not make a direction under section 45A which did not include a limitation direction.  Miss Fearon, who appeared on behalf of the appellant below as she does today, submitted that it was inappropriate to make a limitation direction under section 45A, unless the conditions under section 41 were met, namely that the appellant posed a risk of serious harm.   This was so, she said to the judge, even if the court reached the view that a hospital direction was appropriate under the provisions of section 45A, since the limitation direction would only be appropriate to those convicted of the most serious offences against the person and who posed a physical danger to the public.

19. However, the judge ruled that the conditions for making an order under section 45A were met.  He considered that a hospital order should be made because the conditions set out in section 37(2)(a)(i) were met.  It was clear from a precise reading of the terms of section 45A that if a court were satisfied that the conditions for making a hospital order under section 45A were made out, then a limitation direction must also be made.  Under the section there was no option to go for the one without the other.  Once the court had decided that there should be a hospital direction, it followed that there should be a limitation direction.  The submission that a limitation direction under section 45A could only be imposed in circumstances which would apply to a restriction order being imposed under section 41 was rejected.  Consequently, the order made previously was perfected, so as to include a limitation direction.

20.  In our view, the judge was patently right.  Section 45A of the Mental Health Act 1983 provides in subsections (1) and (2) the conditions that are necessary before a direction under section 45A may be made, that is that a person is convicted before the Crown Court of an offence the sentence for which is not fixed by law, and the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment in respect of the offence, and that the conditions referred to in section 45A(2) are met, which mirror the conditions  in section 37(2)(a).

21.  Miss Fearon, on behalf of the appellant, takes no issue but that these particular preconditions were fulfilled.   Her argument is that section 45A(3), in referring to the restrictions set out in section 41, must thereby incorporate into the court's consideration for making a restriction direction  those conditions set out in section 41(1) as a prerequisite for the making of a restriction order.  

22.  We cannot agree.  Section 45A(3) provides as follows:

"The court may give both of the following directions, namely –

(a)	a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a 'hospital direction'); and

(b)	a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a 'limitation direction')."

It is significant to note that "may" is permissive but applies to the discretion to make the direction “both” as to placement and limitation, and not otherwise as to the different orders specified in (a) and (b), which are joined by the conjunctive "and".

23.  In this case Mr Atkinson, who appears on behalf of the respondent, also points out that they mirror the provisions of section 47 as they relate to a transfer direction, as ordered by the Secretary of State, for serving prisoners to be redirected into the hospital system.

24.  We also note that subsections (4), (5), (8) and (9) of section 45A make reference to both "hospital direction" and "limitation direction" in conjunction throughout.

25.  In the Respondent's Notice Mr Atkinson refers to the relevant Home Office Circular which preceded the importation of section 45A into the Mental Health Act.  We consider that paragraph 7 has particular relevance since it makes clear that it is intended that a hospital direction should only be made together with a limitation direction.  This is to facilitate the transfer to prison of any defendant who has either met all treatment criteria or has failed to engage with them.  

26.	There is good reason to differentiate the pre-requirements for a restriction order against those required for a limitation direction.  It is clear from section 50(2) of the Act that, upon the release date of the defendant subject to a section 45A order, the limitation direction will cease.  The hospital direction will not.  If the defendant is still being treated in hospital he will remain as if subject to an unrestricted order.  In this case, the defendant/ appellant's discharge will then be one for medical consideration only.

26.  Other than those matters of construction, we have considered whether or not the judge was wrong in principle to direct under section 45A the hospital and limitation order in the context of a sentence of imprisonment.  We conclude, on the facts of this case, that the judge correctly considered those other factors which mitigated against any suggestion that the appellant's culpability was so diminished as to call for treatment rather than punishment.  Accordingly, this aspect of the appeal is dismissed.

27.  We turn to consider the making of the victim surcharge order.  Mr Atkinson, somewhat apologetically, refers to the linguistics, whereby the provision as to the application of the victim surcharge order specifically differentiates "order" as opposed to "direction".  Whilst it is linguistic, we think that there is a distinction in the terminology which is capable and should be recognised.  No one suggests, for example, that the requirement of a victim surcharge order would be retrospectively discharged in cases where directions were made by the Secretary of State pursuant to directions under section 47 and 49 of the Mental Health Act.

28.  In this case the sentence of the court was one of imprisonment, with an attendant direction for treatment in hospital and limitation.  The judge's power to do so emanates from the Mental Health Act, but it is a direction and not an order.  In those circumstances we consider that the appellant was a defendant dealt with for the purposes of the application of a victim surcharge order in all other respects.

29.  However, in the present case the single offence of conspiracy to steal spanned the coming into force of the new regime.  The dates of the conspiracy extended beyond 1st October 2012, whilst it appears that the majority of the substantive offences, which illustrated the execution of the conspiracy, occurred before 1st October 2012.  Article 7(1) provides that the Criminal Justice Act 2003 (Surcharge) (No 2) Order 2007 is revoked, subject to subsection (2), but it continues to apply and articles 2 to 6 of the order do not apply where, after the coming into force of the order a court deals with a person for (a) a single offence committed before 1st October 2012; or (b) more than one offence, at least one of which was committed before 1st October 2012.

30.  There is no indication that this accommodates those particular offences which span that date.  Insofar as subparagraph (a) is concerned, it is arguable that the conspiracy was not committed as a whole before 1st October 2012.  However, as already indicated, the substantive offences included those committed before 1st October 2012.  In these circumstances we have in mind the guidance offered by Leveson LJ (as he then was) in R v Bailey and Others [2013] EWCA Crim 1551, when he said:

"5.  ... in relation to the victim surcharge, without taking undue time, the court should take a view on the evidence so that the appropriate order can be made; in the absence of a clear answer, lengthy analysis is utterly unnecessary and the issue should be resolved in the way least punitive to the offender."

31.  In the instant case this appeal has been predominately concerned with the making of the hospital and limitation orders.  We would have considered lengthy analysis of the various substantive offences and the dates upon which they occurred to be entirely disproportionate to the time of the court.  The least punitive disposal for the appellant is to regard at least part of the offence as having taken place before 1st October 2012.  In those circumstances it would not be appropriate to make a victim surcharge order, there being no element of the sentence which includes a fine.  

32.  In those circumstances this aspect of the appeal is allowed.  The victim surcharge order will be quashed.  To that extent only this appeal is allowed.

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