R v Shah [2011] EWCA Crim 2333

Following a special verdict of not guilty by reason of insanity, a restricted hospital order was imposed; an appeal, relying on post-sentence medical evidence, was made against the restriction order. (1) In exceptional cases the court can consider good progress after sentencing, but in this case the task was to decide whether, on the material before him on the date of sentence, the judge's sentence was wrong in principle or manifestly excessive: it was not. (2) The sentence provides a mechanism for release by a Tribunal from the restriction order and the full rigour therefore of the hospital order [this is incorrect], so the appeal court should not taken over the function of that body.

Transcript

Neutral Citation Number: [2011] EWCA Crim 2333


No. 2011/02612/A7



                             IN THE COURT OF APPEAL




                               CRIMINAL  DIVISION




                                                Royal Courts of Justice




                                                       The Strand




                                                         London




                                                        WC2A 2LL




                                                Friday  7  October  2011




                                    B e f o r e:




                            LADY  JUSTICE  RAFFERTY  DBE




                                 MR  JUSTICE  MACKAY




                                         and




                          HIS  HONOUR  JUDGE  LORAINE-SMITH




            (Sitting as a Judge of the Court of Appeal Criminal Division)




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




                                     R E G I N A









                                        - v -




                                SAFDAR  HAIDER  SHAH




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




                           Computer Aided Transcription by




            Wordwave International Ltd (a Merrill Communications Company)




                            165 Fleet Street, London EC4




                  Telephone No: 020 7404 1400; Fax No 020 7404 1424




                      (Official Shorthand Writers to the Court)




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




                  Mr S Gledhill appeared on behalf of the Appellant




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




                                   J U D G M E N T




                             (As Approved by the Court)




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



Friday  7  October  2011


LADY JUSTICE RAFFERTY:  I shall ask Mr Justice Mackay to give the judgment of
the court.


MR JUSTICE MACKAY:


1.  The appellant in this very sad story stood trial between 11 and 13 April
2011 in the Crown Court at Snaresbrook on a single count of assault occasioning
actual bodily harm.  The jury returned a special verdict under section 2 of the
Trial of Lunatics Act 1883 of not guilty by reason of insanity.  That triggered
the deployment of the court's disposal powers under section 5 of the Criminal
Procedure (Insanity) Act 1964, the end result of which was the imposition of a
hospital order under section 37 of the Mental Health Act 1983 conjoined with a
restriction order under section 41 of the same Act.  The appellant appeals with
the leave of the single judge against the restriction order only.


2.  The offence took place on 12 September 2010 when the appellant was at the
home of a long-time friend, Mr Iqbal.  They had known each other for 25 years
and there had never been any major problems between them, but so confused was
the behaviour of the appellant that Mr Iqbal decided to take him home.


3.  The following day Mr Iqbal visited the appellant at his mother's house to
see how he was.  The appellant's mother opened the door.  The appellant ran from
behind her at the victim, brandishing a kitchen knife.  He shouted at him and
made a stabbing motion towards his chest.  He then lunged at his throat with a
knife, made contact and cut his skin.  The appellant's mother disarmed him with
the help of the victim.  The appellant continued to be aggressive and chased the
victim into the street, ranting and raving, and shouting that the victim was
part of a clan, despite the fact that the victim kept telling him who he was and
that he was an old friend.  The appellant then suddenly stopped and returned to
his mother's house.  He appeared confused.  The police were called.  This
incident lasted ten to fifteen minutes.


4.  When the police arrived the appellant said, "I attacked my friend with a
knife.  I need psychiatric help".  Asked who his friend was he replied, "the
cousin of the prophet Mohammed".  When arrested and cautioned he said, "Yes, I
cut him".  He was unfit to be interviewed.  He was remanded in custody and
transferred under section 48 of the Mental Health Act 1983 to a medium secure
hospital.


5.  The evidence before the court as to disposal came from two psychiatrists.
Dr McAnallen, a consultant forensic psychiatrist, was the clinician in charge of
the appellant's treatment at the hospital.  He had been instructed by the
appellant's solicitors and he gave oral evidence before the judge.  He had
already provided a written report about the mental state of the appellant.  He
described in detail the appellant's background which had led up to the situation
in which he found himself.  He was a man of previous good character,
well-educated and intelligent, who had successfully held down a demanding job as
a City trader for three years.  However, from the autumn of 2005 he had shown
intermittent signs of paranoia.  In 2006 he was prescribed the anti-psychotic
drug, Risperidone, but resisted taking it and did not co-operate with its use.
There were short admissions under section 2 of the 1983 Act in 2006 and 2010,
interspersed with time spent abroad.  At one stage a tentative diagnosis of
probable paranoid schizophrenia had been made, but the section 2 order was
allowed to lapse by effluxion of time.  He continued to be reluctant to take
further oral medication. Increasingly there were difficulties from his paranoia
at home with his parents.  He had deluded beliefs, which included beliefs as to
his own mother's identity.  For a while his behaviour was dealt with in the
community and at one stage it was thought that he was recovering well from his
recent psychotic episodes.


6.  In his report Dr McAnallen concluded:


          "[The appellant] suffers from a relapsing-remitting mental disorder,
schizophrenia.....if unwell [he] does pose the potential risk of causing serious
harm to the public due directly to his propensity to act upon his delusional
beliefs.  Furthermore he seems to have demonstrated a capacity to be guarded and
successfully to underreport the level of symptoms he has been suffering and to
resist and avoid in the past treatment.  It is possible that he will in future
similarly seek to avoid treatment ....  A Restriction Order would help to serve
to ensure the provision of systematic aftercare and particularly for conditions
to be put in place for [the appellant] to comply with recommended treatment and
supervision in the longer term ...."


Dr McAnallen gave oral evidence before the judge as the Act required.  His
opinion was that the appellant had a propensity to act on his delusions, and
that his condition was a relapsing and remitting condition which posed an
unpredictable extent of risk.  He was a capable person of above average
intelligence and able to persuade treating professionals of what he wanted them
to believe.


7.  Dr McAnallen was questioned by Mr Gledhill, who represents the appellant, in
particular about his own insight into his illness.  Dr McAnallen said that he
was encouraged that he appeared to have a higher level of insight than in the
two previous admissions.  However, he qualified that significantly when he said:



          "I am also somewhat cautious about the level of access that we have to
[the appellant's] inner thoughts and I think I would want to see [the appellant]
over a much longer period of time before feeling more confident about his stable
level of insight."


It does not appear from his questions that Mr Gledhill suggested to the
psychiatrist that his assessment from a medical point of view of the risk posed
was overstated.


8.  A second psychiatrist, Dr Hurlow, gave evidence by means of a report before
the court.  It was in identical terms.


9.  The terms of section 41(1) of the Mental Health Order 1983 are that the
restriction order may be made if "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 main thrust of this
appeal is that the judge erred in concluding that it was.


10.  In his sentencing remarks the judge said that he was satisfied that that
test was made out.  The factors which led him to that conclusion were first the
previous non-compliance with medication and secondly the delusions that were not
just confined to the unfortunate victim of the index offence, but also in
relation to his own mother.  He summarised the answer that we have set out
above, that the carers did not yet feel that they had a full understanding of
the appellant and whether he harbours other delusions about other people and
other members of the family.  The judge was troubled by the fact that at that
time there was still no suitable regime of medication, that he had had a
chequered history with Risperidone and the stronger medication that he was
currently taking was not working.  Those were the risks he perceived.


11.  There is an application by Mr Gledhill under section 23 of the Criminal
Appeal Act 1968 that we should consider a further updated report from Dr
McAnallen dated 3 October 2011 as to how the appellant has progressed since the
date of sentence.  We have read it de bene esse.  It indicates that he has made
very good progress and it paints an encouraging picture.  His drug regime has
now stabilised.  He was engaging well with treatment and co-operating with plans
for his future which have included escorted community leave and may extend in
future to unescorted community leave.  His active symptoms are said to be in
remission, although in the doctor's view there is still a remaining risk of
relapse.  He will need continued long-term treatment with medication, regular
reviews, and avoidance of stressors, alcohol and drugs.


12.  While in exceptional cases this court will consider good progress by an
appellant after the sentence date, we consider that in this case our task is to
decide whether, on the material before him on the date of sentence, the judge's
sentence was wrong in principle or manifestly excessive.  Where that sentence,
as here, includes a specific mechanism for his release from the restriction
order and the full rigour therefore of the hospital order, through the channel
of the Mental Health Review Tribunal, it is in our judgment inappropriate for
this court to take over the function of that body.  If, post-sentence, progress
warrants a relaxation or discharge, that is the right specialist body to
consider it.  As for the judge's judgment as at the date of sentence, we do not
consider that there was anything speculative about the material upon which it
was based.  We do not consider that he was obliged to delve into the background
as far as Mr Gledhill has asked us to do this morning.  We consider that the
judge had to look at what was before him, his knowledge of the appellant's
behaviour at the time of the attack and after it, and the account of the
progress of his illness, particularly that given by Dr McAnallen and his
evidence of the appellant's future risk.  Mr Gledhill is correct that the final
question is a legal question, not a medical one, but it would have been a bold
judge who would have gone against the unanimous opinion of the two doctors on
the particular facts of this case.  It is impossible to say that the judge
misapplied the test under the statute or reached a conclusion that was in any
way wrong or excessive.


13.  Accordingly, this appeal must be dismissed.

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