R v Shah  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.
Neutral Citation Number:  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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