R v Searles  EWCA Crim 1839,  MHLO 155
Criminal appeal adjourned for second medical report in relation to the making of a hospital order.
Neutral Citation Number:  EWCA Crim 1839 No: 201107021/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 25 July 2012 B e f o r e: LORD JUSTICE HOOPER MR JUSTICE SIMON MR JUSTICE SWEENEY R E G I N A v ASHLEY SEARLES Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) Miss J Furley appeared on behalf of the Appellant J U D G M E N T (As Approved by the Court) Crown copyright© 1. LORD JUSTICE HOOPER: You are asking for an adjournment so that this court can make an order under 37 and 41 without restriction of time. That is what you want the court to do? 2. MISS FURLEY: My Lord, yes. 3. LORD JUSTICE HOOPER: No, I just want to make sure. For that reason we will say in our judgment that we will adjourn and we will ask that it be listed during the vacation. You want a second report. How many have to give evidence? 4. MR JUSTICE SIMON: One. 5. LORD JUSTICE HOOPER: You have no solicitor? 6. MISS FURLEY: I don't. There is a solicitor on record, yes. There is a solicitor dealing with the matter. They are not in court today. I would hope that, rather than putting the public purse to more expense, Dr Mikhail will be able to step up and do an addendum report. Dr Patel has undertaken the lion's share of the work in relation to this matter. 7. LORD JUSTICE HOOPER: Difficult for to us order a doctor to do something. We will say what we hope to happen. Will that be good enough? 8. MISS FURLEY: Yes. Please. Judgment 9. MR JUSTICE SIMON: On 24 November 2011 at Wood Green Crown Court the appellant, aged 20, was convicted of a single offence of robbery. On 8 December he was sentenced to a term of two years' detention in a young offender institution with 15 days in custody ordered to count towards the sentence. 10. He appeals against that sentence with the leave of the single judge. 11. The offence occurred in the early evening of 9 April 2011 when the victim of this crime, Sandra Bushell, was in a fish bar in Tottenham High Road with her daughters, her grandchildren and a friend. While they were eating their meal the appellant entered the shop by sharply kicking the door. He was swearing and tried to interrupt the group who were peaceably minding their own business. He used offensive language and appeared to be in a high state of nervous tension, as if he were under the influence of drugs. The group felt intimidated and left the restaurant. The appellant followed them. They changed direction but the appellant continued after them. As they waited to cross the road, with Sandra Bushell holding the hands of her two grandchildren, she was pulled back with the force of the appellant pulling the chains around her neck. She heard the appellant say, "Give me the fucking chains." One of her daughters intervened but the appellant broke the two chains and ran off. Sandra Bushell suffered two scratches to the back of her neck and was prescribed painkillers for the pain in her neck caused by the force which had been used. Six days later the friend who had been present during the robbery saw the appellant and notified the police. He was arrested and identified as the robber by a number of those who had seen what had happened. His attitude during interview was to deny the offence and say he could not remember what he was doing when it occurred. The police noted that he was smiling and laughing during the interview. The appellant was 19 at the time of the offence and had no previous convictions, although he had a caution for battery in August 2010 and had been the subject of a fixed penalty notice for using threatening words or behaviour in October 2010. The pre‑sentence report noted that he maintained his innocence, notwithstanding his conviction, and that his attitude was generally irrational. There were concerns about his inappropriate behaviour during the interview and it was noted that he had seen a psychiatrist as a result of experiencing hallucinations. He had been treated with anti‑psychotic medications in May 2010 but had stopped taking them. The writer of the report was concerned that the offence might be linked to his mental health and contacted Feltham Remand Centre. He was told that the psychiatric nurse had noted similar behaviour since his remand. It was for this reason that the pre‑sentence report recommended that a psychiatric report should be obtained. Miss Furley, who appeared for the appellant at the sentencing hearing as she does here today, submitted that sentencing should be adjourned for a psychiatric report. That application was refused. In passing sentence the Recorder said he had read the victim impact statement and had noted the serious effect of the crime on the victim and her daughter. He noted the lack of insight shown by the appellant as to the consequences of what he had done. He considered the sentencing guidelines and identified the aggravating factors which were relevant. In the grounds of appeal two points were taken by Miss Furley. First, it had been wrong in principle not to order a psychiatric report. This was a young man with no previous convictions whose supportive family had expressed legitimate concerns about his mental well being. The offence appeared to have been out of character. The victim and her family thought he has behaving as if under the influence of illegal drugs, yet the pre‑sentence report did not suggest that drugs or alcohol provided any explanation for the offence. The Recorder's response was that if he had a mental condition it would be treated in the young offender institution. The second point was that the Recorder had paid insufficient regard to the appellant's previous good character and his age. That point has not been pursued today for reasons we will come to. In our view the Recorder should very plainly have adjourned the sentence for a psychiatric report. There was enough in the pre‑sentence report, even without the inexplicable circumstances of the offence itself and what followed, to suggest that the explanation for the offending may have been the appellant's mental state. The single judge ordered a psychiatric report for the purpose of this hearing. We have seen the report, dated 16 July 2012, of Dr Shamir Patel, a consultant psychiatrist attached to the Central North West London NHS Foundation Trust. Having reviewed the appellant's mental history and conducted a mental state examination, his conclusion is stark: "In my opinion, Mr Ashley Searles suffers from a mental disorder, the severe mental illness of chronic paranoid schizophrenia, as defined within the meaning of Part 1 of the Mental Health Act 1983 (as amended). This is currently characterised by third person auditory hallucinations, paranoid (persecutory) delusions (false beliefs), including that disasters are going to happen to him, that people are going to attack and harm him, talk about him behind his back, and, external thought insertion (thoughts being inserted into his head). Prior to being sentenced to two years' imprisonment ... Mr Ashley Searles had been receiving treatment for his mental illness from the Haringey Early Intervention Service ... and Haringey Mental Health Trust, The Canning Crescent Centre ..., including by prescription of the oral atypical anti‑psychotic Olanzapine ..., with which he was not fully voluntarily compliant. Mr Ashley Searles' mental illness may have been compounded by years of substance misuse, and his previous convictions, including for battery, if not related to his past substance abuse, may be suggestive of pre‑morbid anti‑social personality traits, or, may be representative of deterioration in his social functioning and personality due to his mental illness. Mr Ashley Searles requires urgent treatment in hospital under the provisions of section 47/49 of the Mental Health Act 1983 (as amended). The reason for this is that Mr Ashley Searles continues to suffer from a mental disorder that is of a nature and degree that warrants his ongoing detention in hospital in the interests of his own health and safety with and with a view to the safety and protection of others." 12. Later in the report he draws attention to the fact that he has discussed the case with Dr Sherine Mikhail, consultant forensic psychiatrist at the North London Forensic Service, who confirmed that, following a referral from the Prison Mental Health Services at HMP Littlehey, she had subsequently assessed and placed Mr Searles on the waiting for admission to medium to secure services within the North London Forensic. 13. In the light of that report Miss Furley, who has plainly thought about the position of her client very carefully, has invited the court to adjourn this case. She submits that the proper order that should have been made, and which should be made on this appeal, is an order under section 37 and a restriction order under section 41. 14. For the purposes of section 37 a second medical report is required. This court cannot order Dr Mikhail to make such a report, but we would hope, having heard what we have said today, that such a report is made quickly and made available to the court promptly. 15. For the purpose of section 41, a restriction order, the court would have to hear oral evidence from a medical practitioner suitably qualified. For this reason we intend to adjourn this appeal with a view to it being restored when these matters can be dealt with and put before the court in the form we have outlined. 16. The court has invited Miss Furley's attention to the case of Bennett  1 WLR 998, referred to in Blackstone at page 2040 at paragraph (d), and the possibility that what she is inviting the court to do might result in a more severe sentence. However, she submitted that it would not be a more severe sentence. On the contrary, it would be the appropriate sentence. 17. In those circumstances we propose to make the order we have indicated.
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