R v SCL [2012] EWCA Crim 182, [2012] MHLO 16
The renewed application for extension of time (the delay being caused by the appellant pondering negative legal advice before deciding to appeal anyway) in which to apply for leave to appeal against restriction order was refused, as there was ample material to justify the restriction order.
Transcript
Neutral Citation Number: [2012] EWCA Crim 182Not on Bailii!
No: 201104829 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Strand
London, WC2A 2LL
Friday, 27 January 2012MR JUSTICE IRWIN
MR JUSTICE NICOL
R E G I N A
v
SCL (AKA R)
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1. MR JUSTICE IRWIN: On 14 January 2011 this applicant pleaded guilty
before magistrates to two offences of breach of a restraining order contrary to
section 5(5) of the Protection from Harassment Act 1997, and was committed to
the Crown Court for sentence under section 3 of the Powers of Criminal Courts
(Sentencing) Act 2000.
2. On 24 June, in the Crown Court at Bournemouth before HHJ Harrow, the
applicant was sentenced to a hospital order, together with a restriction order,
under sections 37 and 41 respectively of the Mental Health Act 1983, on each
offence concurrent. He was represented at that stage by counsel as well as
solicitors. He renews his application for an extension of time of 41 days in
which to apply for leave to appeal against sentence in relation only to the
Restriction Order, and for representation, after refusal of leave and
representation by the single judge.
3. The applicant being sentenced on 24 June, the 28‑day time limit expired
on 22 July, and his application was received on 1 September, hence 41 days out
of time. The applicant explains in his grounds that he has received negative
advice on the appeal from his solicitors, but that after considering things for
some time, he did wish to appeal.
4. The facts can be summarised briefly as follows. The restraining order
was first made against this applicant in respect of his former partner on 27
July 2006 following a course of conduct which amounted to harassment. It was
subsequently varied in 2008, in which he was specifically prohibited, as a
result of the variations, from contacting his former partner directly or
indirectly, except via solicitors, as well as from attending at the relevant
doctors. The parties had previously been together for a number of years and had
two children, then aged 15 and 11.
5. This applicant has breached the restraining order on a number of
occasions, and the convictions in relation to those breaches are set out in the
papers. For these charges, it is sufficient to say that on 19 August 2010 the
complainant received a handwritten letter from the applicant at her home address
saying he was desperate and wished to speak to and contact the children.
Secondly, on 13 September, after the first letter was reported to the police,
the complainant received a second letter, handwritten on the back of a hospital
letter, saying in part, "I can't find you, where are you I need your help. Are
the children safe, would you ask if I could speak with them to know they are
safe. I don't want to go to court or whatever, please help me."
6. Interviewed in December, the applicant made a written statement accepting
he had written and sent these letters, and thus the breaches were established.
7. At the time the two letters were sent, this applicant was still in hospital. His responsible clinician was a Dr Rae, but she had since emigrated. However, her report, dated 8 March 2011, was adopted at court before the judge by another doctor, Dr Dossett. It follows that the view of two doctors, one the longstanding responsible clinician, as summarised, was that the applicant was a rejected stalker with a high risk of persistence of stalking and a moderate risk of stalking‑related violence. A further medical report from another doctor made the same recommendation. Thus all three doctors recommended a section 37 order as well as a section 41 order. Oral evidence from Dr Dossett at the hearing confirmed that.
8. The judge concluded, having read all three reports and heard the evidence
from Dr Dossett, that the applicant is suffering from an unspecified psychotic
disorder, associated depression, and a personality disorder. Given the risks,
it was necessary to add a section 41 order to the section 37 order which was
passed and which remains unchallenged by the applicant.
9. The restraining order had been breached on nine occasions during the
period since 2006, and that is despite the fact that the applicant had been a
hospital in‑patient for more than 2 and a half years before the point of
sentence. The doctors gave evidence which made it clear that the risk of
violence could not be contained without a restriction order.
10. A pre‑sentence report was before the judge in very similar terms,
assessing a medium risk of serious harm and recommending security to be derived
from the restriction order.
11. The applicant submits that the basis of his challenge should be that he
was not represented fairly, that his counsel had limited preparation time, and
then simply that the restriction order was manifestly excessive or wrong in
principle.
12. The single judge in this case wrote:
- "I have considered the papers in your case and your grounds of appeal. I am not
satisfied that there are grounds to extend time, but, having considered the judgment of HHJ Harrow of 24 June 2011, and the grounds of appeal, it is not arguable that the restriction order made under section 41 [of the Mental Health Act] was unlawful."
13. We agree. There was ample material which made the restriction order
entirely suitable. It is quite unarguable that it could be successfully
appealed, hence the application is dismissed.
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