R v Abdi [2011] EWCA Crim 2179
Unsuccessful appeal against s41 restriction order.
Judgment (Crown Copyright)
The judgment will remain below until it is published on Bailii.
Neutral Citation Number: [2011] EWCA Crim 2179
No: 201006992 A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 14th September 2011
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE WILKIE
MR JUSTICE HOLROYDE
R E G I N A
v
MOHAMMED ABDI
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Miss S Chaplin appeared on behalf of the Applicant
J U D G M E N T
(As Approved by the Court)
Crown copyright©
1. MR JUSTICE WILKIE: Mohammed Abdi renews his application for leave to
appeal against a disposal under section 16A of the Criminal Appeal Act 1968
after refusal by the single judge.
2. Mr Abdi is now aged 33. On 26th February 2010, at the Crown Court at
Kingston, the applicant pleaded guilty to one count of sexual assault and two
counts of assault by beating. On 26th November 2010 he was sentenced to a
hospital order under section 37 of the Mental Health Act 1983 and the judge
ordered that the applicant be subject to the restrictions set out in section 41
of the Mental Health Act 1983. Because of the nature of the first offence of
sexual assault the provisions of the Sexual Offences Amendment Act 1992 apply
and this judgment shall be appropriately anonymised.
3. The facts giving rise to the disposal were that at 8.50 am on 31st
October 2009 the complainant on count 1, "P", was walking along Uxbridge Road
when the applicant hit her and squeezed her left breast. He then approached
another elderly person, "CB", and kicked her on the upper part of her left arm.
Having been arrested, he then tried to headbutt a police constable.
4. The learned judge had the benefit of medical advice in the form of a
psychiatric report on the applicant from a Dr Kishore dated 23rd August 2010,
supplemented by a further report by that doctor on 9th November 2010. It is
clear that he has a long history of mental illness which, in the opinion of the
doctor, was exacerbated by his habitual excessive consumption of alcohol and the
drug Khat which he took daily. It was noteworthy that the applicant did not
recognise or understand that his continued regular consumption of alcohol and
that drug had any significant effect on his behaviour, though the opinion of the
medical practitioner was that it did. Dr Kishore was of the opinion that he
suffers from a mental disorder under the Mental Health Act 1983. In his two
reports he diagnosed the disorder as schizophrenia. In the first report he
described it as undifferentiated schizophrenia. The opinion of Dr Kishore was
that the applicant required ongoing treatment in hospital within secure settings
and that a section 37 hospital order was appropriate. The opinion of Dr Kishore
was that he did not feel that a section 41 restriction order was indicated in
this case. That was an opinion which he repeated in his supplemental report,
and in giving oral evidence before the learned judge speaking of the section 41
restriction he said this:
"... the problem with that for people whose offending history in terms of the
description is considered minor from the mental health point of view, and have a
very clear link between the mental health and substance misuse, it can be very
restrictive and can sometimes backfire, because people want to see hope. So
that when they do certain things, for example, work on the offending behaviour,
they want to be able to say, 'If I do this, I will get something out of it'.
With a 41, especially the indefinite which is what the law is now, it becomes
very restrictive and sometimes can be counter‑productive."
5. The other medical practitioner whose report the learned judge had regard
to was Dr Sahib, who produced a report dated 4th November 2010. In that report
Dr Sahib too identified a mental disorder under the Mental Health Act. He was
able specifically to diagnose it as paranoid schizophrenia. He too opined that
it was appropriate for continued treatment in hospital and he too was of the
view that a section 37 hospital order was sufficient and that a section 41
restriction was unnecessary.
6. The learned judge in his sentencing remarks commented on the applicant's
antecedents. He had 11 convictions comprising 16 offences. A number of them
were of a similar nature to the offences which had led to him being before the
court. In 2008 he pleaded guilty to an offence of exposure. In 2002 he was
either convicted or pleaded guilty to a common assault. In 2009 he pleaded
guilty to an offence of battery. In addition, there were two other occasions
when he pleaded guilty to disorderly behaviour. Of some significance, however,
for the learned judge was the fact that in 2006, after a conviction for an
offence of attempted robbery, the then sentencing court, Isleworth Crown Court,
was of the view that the offence was so serious that it warranted a sentence of
three years' imprisonment. The learned judge referred to the undisputed medical
evidence that a section 37 order was required and that the statutory
requirements for that were met. He then went on to consider the restriction.
He repeated what Dr Kishore had said about a section 41 order inhibiting
treatment and preventing the normal flexibilities that might be required, but
the learned judge expressed the view that his concern was that the index
offences involved uninhibited behaviour against vulnerable people and he had to
bear that in mind, being a forensic rather than a medical exercise. He also had
regard not only to the nature of those offences, but the fact that he had
committed other offences in the past, and referred specifically to the offence
of attempted robbery and the long sentence to which he was sentenced on that
occasion. He expressed himself as satisfied that there was a risk of future
offences along the lines of disorder offences with which he had been dealing on
that occasion involving uninhibited behaviour against vulnerable people and
elderly victims, of a sexual nature. Although he accepted that the nature of
the offending amounted to him being an anti‑social pest, it went a bit further
than that and he had doubt in relation to the future risk which existed at that
time. He suspected that, if there were no section 41 restriction, the applicant
would be in low security accommodation, would have much greater ease of access
to alcohol, and he expressed the view that if or when the time came, it was
better that a review tribunal should decide whether he was discharged rather
than his then medical advisers releasing him subject to a community treatment
order.
7. The test which the learned judge had to apply in relation to section 41
is as follows:
"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. . .; and an order under this section shall be known as 'a
restriction order'."
8. The single judge, in refusing leave, observed that it would have been
better had the learned judge expressed himself explicitly in terms of section
41.
9. Miss Chaplin, in her able written and oral submissions, has submitted
that the leap from the nature of the offending on this occasion to a section 41
order and the failure of the judge properly to grapple with the issue whether it
was necessary to protect the public from serious harm meant that the learned
judge took too large a step from the facts of this case and the material before
him in disagreeing with the opinion of the two psychiatrists who had provided
reports and one of whom had given explicit oral evidence.
10. In our judgment, that is a proposition which, we regret to say, is
unarguable. True it is that, by good fortune, the offences for which he had to
be dealt were not of the most serious, but, as the judge observed, they did
involve uninhibited behaviour by a man who was plainly under the influence of
alcohol and Khat, which appeared to have been targetted at vulnerable people,
namely elderly people walking around in the street, and the nature, particularly
of the assault, was such that the relatively minor nature of the offence with
which he was charged was a matter of good luck and that the injuries caused to
CB could have been significantly more serious.
11. In all the circumstances, given the antecedent offending by this
offender, given the nature of his mental disorder, given the unrecognised
contribution of substance abuse as reported by the psychiatrists, in our
judgment the learned judge, in making the judgment, which was for him to make,
cannot be said to have either been wrong in principle or to have imposed an
order which was manifestly excessive in concluding that the section 41 test was
satisfied. In our judgment therefore this application must fail and we dismiss
it.
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