View source for R v Paul Martin (1998) EWCA Crim 3166

''The power to make a restriction order applies in cases where the patient poses a risk of serious harm from which the public needs protection. This is not the seriousness of the risk that the public may suffer some harm, but that the risk that the potential harm represented by the individual defendant would be serious. There should normally be some proportionate relationship between the instant offence and the history of offending, together with an assessment of risk on the basis of medical examinations before a section 41 restriction order is made. Restriction order quashed.''

==Judgment==
<div class="perm">
PAUL MARTIN, R v. [1998] EWCA Crim 3166 (6th November, 1998)

No: 98/0552/Z3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Friday 6th November 1998

B E F O R E :

LORD JUSTICE JUDGE

and

MR JUSTICE COLLINS

- - - - - - - - - - - - -

R E G I N A

- v -

PAUL MARTIN

MR J MANN appeared on behalf of the Appellant

- - - - - - - - - - - -

JUDGMENT

( As Approved by the Court )

- - - - - - - - - - - -

Crown Copyright

JUDGMENT

LORD JUSTICE JUDGE: This is an appeal by Paul Martin who is now 36 years
old. Unhappily he has a long history of mental illness and some inadequacy,
but although now 36 he remained unconvicted of any criminal offence until
1993 when he was found guilty of using threatening and abusive words and
behaviour. He was then given a conditional discharge. Some three years
later in September 1996 he committed offences of criminal damage and was
again given a conditional discharge and fined £10 for failing to
surrender to custody. In January 1997 he was found guilty of common assault
and using threatening and abusive words and behaviour, and this time placed
on probation. The offence with which this court is concerned arises from
the order of probation.

On 1st July 1997 he pleaded guilty before the magistrates to common assault.
The magistrates were concerned about the appropriate way of dealing with
this case and decided that he should be committed to the Crown Court for
sentence. Eventually on 22nd December 1997 in the Crown Court at Isleworth
before His Honour Judge Evans and Justices, he was made the subject of
a Hospital Order under section 37 of the Mental Health Act, but in addition
there was an order restricting his discharge from hospital under section
41 of the Mental Health Act to be applied without limit of time. The basis
of the appeal before us, for which leave was given by the single judge,
is in relation to the restriction order.

First, the facts of the offence. It was 20th May 1997, and the appellant
had an appointment to see his probation officer. There was a hiatus and
then a contratemps. Unfortunately he has in the past been the opposite
of cooperative with people who have been trying to help him. On this occasion
a lady probation officer who had had dealings with him went to see whether
she could calm the situation down. He appeared in the immediate moment
when she spoke to him to have settled down, and then when told that what
he wanted was not possible, his mood changed very suddenly and he became
extremely venomous in the way in which he spoke and demanded to see the
probation officer. He subjected the lady who was trying to help to a tirade
of abuse. She plainly felt intimidated; she thought she was at risk of
physical injury and indeed that was what happened. Eventually she left
and he followed her and in the car park, punched her in the back of the
head three or four times with his fists. They were forceful blows, obviously
extremely painful to the lady, and resulted in bumps on the back of the
head with accompanying tenderness and swelling; a most unpleasant and
no doubt deeply distressing incident, after which the appellant walked
away. When the police officers saw him he was by now in hospital. He was
told of the allegations. He said he had not punched her, he had just tapped
her on the back of the head but eventually when interviewed, he admitted
he had lost his temper.

That was the case. Of course, given his history, there was proper investigation
into his mental state. Each court that has dealt with the case was provided
with a series of reports into his condition and we, today, have been supplied
with yet further evidence. It is difficult fairly to summarise the contents
of the reports but in view of the fact that there is no dispute that an
order under section 37 of the Mental Health Act was an appropriate way
to deal with the case, we will be forgiven if we merely concentrate on
the evidence relating to the issue whether or not the restriction order
was or continues to be appropriate.

Dr Dent produced a report dated 19th June. His view was that it was far
too early to form a final view. He recognised the mental condition but
he advised a temporary order under section 38 of the 1983 Act.

Dr Dye examined him in October 1997, and spoke of a number of incidents
immediately after his admission to hospital of abuse and racist abuse,
all verbal with no signs of physical violence. The doctor thought that
he represented a danger to the public but the extent of that danger was
undefined and unspecified. There was then a report from doctors Maier
and Bayney. They set out the same sort of developing story confirming
the previous diagnosis, recommending as Dr Dye had a section 41 restriction
order, but again without analysing the extent or seriousness of the risk
actually posed by the appellant. What became apparent in the course of
those reports was the understandable concern of the doctors responsible
for this appellant\'s care about the effect on him if the restriction order
were not imposed. The advantage of a restriction order from their point
of view - and it remains one of the advantages which Dr Murdoch has spoken
about today - is that the mental health of the appellant could be closely
monitored; the circumstances in which he could be released would be more
controlled; and, in particular, if there were any suggestion that on release
his condition was deteriorating or he was failing to take advantage of
the treatment which was being provided, that possibility could be met
by an early return to hospital.

There was further evidence from Dr Maier in May of 1998 and Dr Somekh
in June of 1998. They reached a different conclusion, again not so much
about the diagnosis, but about whether or not there should be a restriction
order. Today we heard further evidence from Dr Somekh and Dr Murdoch.

We acknowledge the concern of those who are treating this appellant, perhaps
to a much greater extent than he does himself, but Dr Murdoch would be
the first to say that they are not doing the work they do in order to
get some hint of gratitude from a patient. The issue here is simply defined
and not easy to resolve. This was an unpleasant offence. Even on the basis
that attention can be paid to the complainant\'s injuries when the appellant
was convicted only of common assault, his previous convictions were also
unpleasant, and do not make happy reading. The conviction with which we
are concerned was part of a pattern of offending from which the appellant
had been entirely free for very many years. All that said and done, looked
at at its worst from his point of view, the maximum sentence that the
court could have imposed for the offence of which he was convicted was
six months\' imprisonment. In the result he has now been treated, it is
true, in a hospital under the Mental Health Act, for coming up for 18
months.

There is also a history of anti-social behaviour and inadequacy. Without
putting too fine a point on it, the appellant has had difficulties living
in the community. One of the worst manifestations of his difficulties
is that through his own previous conduct, itself of course a manifestation
of his mental ill-health, he has alienated a very large number of people
who have been willing in the past to care for and provide him with assistance,
and indeed some stability.

There is therefore a significant problem. If he were to be discharged
as a patient, he would need help of the kind that he has in the past rejected.
The concern of the doctors now responsible for his care is that without
that assistance he would be, at least at risk of relapse, and if he then
relapsed there would be a risk of redevelopment of the threatening and
abusive behaviour which has recently, become the pattern, with possible
violence of the kind and to the level which occurred in the present case,
particularly towards those who would care for him. It does not need very
much imagination to see how this circle might continue. What is to his
credit and to the credit of those who have been caring for him, is that
after a not very good start in hospital he has in fact made considerable
progress and we have been told that there have been no serious incidents
in recent times.

The restriction order under section 41 of the Mental Health Act is meant
to impose restrictions on the exercise of powers to discharge a patient.
There are a significant number of hurdles which have to be overcome before
such a patient can be discharged which are not present under section 37
- although discharge under section 37 does not necessarily follow automatically.
But section 41 is a power which is meant to be exercised to cater for
a specific problem. It applies in cases where the patient poses a risk
of serious harm from which the public needs protection. This is not the
seriousness of the risk that the public may suffer some harm, but that
the risk that the potential harm represented by the individual defendant
would be serious.

We have examined the evidence on that topic in the light of the relevant
section. We recognise that the absence of a restriction order may, when
the appellant is discharged, mean that he would represent a risk. It is
a risk which we do not underestimate and it is a risk which may involve
some physical harm to members of the public who cross him. We do not minimise
that possibility, but when we ask ourselves the question: "Does he
represent serious potential harm to the public?", we are left with
evidence which suggests that the sort of conduct on the instant occasion
is about the worst which can be foreseen, to the extent that these things
can be foreseen, and indeed there is evidence from both doctors to suggest
that future offences would be unlikely to be any worse than this offence.
Although it is not the ultimate consideration, there are members of the
public sitting in court and it is worth just underlining, that for an
offence for which the maximum sentence of imprisonment is six months,
this appellant has now been detained as a patient in a mental hospital
for very nearly 18 months, and that detention will continue. There should
normally be some proportionate relationship, in our judgment, between
the instant offence and the history of offending, together with an assessment
of risk on the basis of medical examinations before a section 41 restriction
order is made.

We have come to the conclusion that looked at in this way, the risk which
this man represents does not justify an order under section 41. Although
it is perfectly right that in his own interest there would be a great
deal to be said for him remaining where he is and continuing to receive
the treatment that he does, we do not think that can be enforced by the
use of section 41. In those circumstances the appeal will be allowed;
the restriction order will be removed; the appellant will return to hospital;
the order under section 37 of the Mental Health Act will continue.
</div>

==Resources==
{{#bailii:[1998] EWCA Crim 3166}} - used to be on Bailii

{{link
|text=Archive.org/markwalton.net (judgment)
|archive=https://web.archive.org/web/20030707221545/http://www.markwalton.net/ct98/martin.asp
}}

[[Category:Brief summary]]
[[Category:Judgment available on MHLO]]
[[Category:1998 cases]]
[[Category:Restriction order cases]]