R v Abdi  EWCA Crim 2179
Unsuccessful appeal against s41 restriction order.
Judgment (Crown Copyright)
The judgment will remain below until it is published on Bailii.
Neutral Citation Number:  EWCA Crim 2179 No: 201006992 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 14th September 2011 B e f o r e: LORD JUSTICE PITCHFORD MR JUSTICE WILKIE MR JUSTICE HOLROYDE R E G I N A v MOHAMMED ABDI 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 7422 6138 (Official Shorthand Writers to the Court) Miss S Chaplin appeared on behalf of the Applicant J U D G M E N T (As Approved by the Court) Crown copyright© 1. MR JUSTICE WILKIE: Mohammed Abdi renews his application for leave to appeal against a disposal under section 16A of the Criminal Appeal Act 1968 after refusal by the single judge. 2. Mr Abdi is now aged 33. On 26th February 2010, at the Crown Court at Kingston, the applicant pleaded guilty to one count of sexual assault and two counts of assault by beating. On 26th November 2010 he was sentenced to a hospital order under section 37 of the Mental Health Act 1983 and the judge ordered that the applicant be subject to the restrictions set out in section 41 of the Mental Health Act 1983. Because of the nature of the first offence of sexual assault the provisions of the Sexual Offences Amendment Act 1992 apply and this judgment shall be appropriately anonymised. 3. The facts giving rise to the disposal were that at 8.50 am on 31st October 2009 the complainant on count 1, "P", was walking along Uxbridge Road when the applicant hit her and squeezed her left breast. He then approached another elderly person, "CB", and kicked her on the upper part of her left arm. Having been arrested, he then tried to headbutt a police constable. 4. The learned judge had the benefit of medical advice in the form of a psychiatric report on the applicant from a Dr Kishore dated 23rd August 2010, supplemented by a further report by that doctor on 9th November 2010. It is clear that he has a long history of mental illness which, in the opinion of the doctor, was exacerbated by his habitual excessive consumption of alcohol and the drug Khat which he took daily. It was noteworthy that the applicant did not recognise or understand that his continued regular consumption of alcohol and that drug had any significant effect on his behaviour, though the opinion of the medical practitioner was that it did. Dr Kishore was of the opinion that he suffers from a mental disorder under the Mental Health Act 1983. In his two reports he diagnosed the disorder as schizophrenia. In the first report he described it as undifferentiated schizophrenia. The opinion of Dr Kishore was that the applicant required ongoing treatment in hospital within secure settings and that a section 37 hospital order was appropriate. The opinion of Dr Kishore was that he did not feel that a section 41 restriction order was indicated in this case. That was an opinion which he repeated in his supplemental report, and in giving oral evidence before the learned judge speaking of the section 41 restriction he said this: "... the problem with that for people whose offending history in terms of the description is considered minor from the mental health point of view, and have a very clear link between the mental health and substance misuse, it can be very restrictive and can sometimes backfire, because people want to see hope. So that when they do certain things, for example, work on the offending behaviour, they want to be able to say, 'If I do this, I will get something out of it'. With a 41, especially the indefinite which is what the law is now, it becomes very restrictive and sometimes can be counter‑productive." 5. The other medical practitioner whose report the learned judge had regard to was Dr Sahib, who produced a report dated 4th November 2010. In that report Dr Sahib too identified a mental disorder under the Mental Health Act. He was able specifically to diagnose it as paranoid schizophrenia. He too opined that it was appropriate for continued treatment in hospital and he too was of the view that a section 37 hospital order was sufficient and that a section 41 restriction was unnecessary. 6. The learned judge in his sentencing remarks commented on the applicant's antecedents. He had 11 convictions comprising 16 offences. A number of them were of a similar nature to the offences which had led to him being before the court. In 2008 he pleaded guilty to an offence of exposure. In 2002 he was either convicted or pleaded guilty to a common assault. In 2009 he pleaded guilty to an offence of battery. In addition, there were two other occasions when he pleaded guilty to disorderly behaviour. Of some significance, however, for the learned judge was the fact that in 2006, after a conviction for an offence of attempted robbery, the then sentencing court, Isleworth Crown Court, was of the view that the offence was so serious that it warranted a sentence of three years' imprisonment. The learned judge referred to the undisputed medical evidence that a section 37 order was required and that the statutory requirements for that were met. He then went on to consider the restriction. He repeated what Dr Kishore had said about a section 41 order inhibiting treatment and preventing the normal flexibilities that might be required, but the learned judge expressed the view that his concern was that the index offences involved uninhibited behaviour against vulnerable people and he had to bear that in mind, being a forensic rather than a medical exercise. He also had regard not only to the nature of those offences, but the fact that he had committed other offences in the past, and referred specifically to the offence of attempted robbery and the long sentence to which he was sentenced on that occasion. He expressed himself as satisfied that there was a risk of future offences along the lines of disorder offences with which he had been dealing on that occasion involving uninhibited behaviour against vulnerable people and elderly victims, of a sexual nature. Although he accepted that the nature of the offending amounted to him being an anti‑social pest, it went a bit further than that and he had doubt in relation to the future risk which existed at that time. He suspected that, if there were no section 41 restriction, the applicant would be in low security accommodation, would have much greater ease of access to alcohol, and he expressed the view that if or when the time came, it was better that a review tribunal should decide whether he was discharged rather than his then medical advisers releasing him subject to a community treatment order. 7. The test which the learned judge had to apply in relation to section 41 is as follows: "Where a hospital order is made in respect of an offender by the Crown Court, and 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 court may, subject to the provisions of this section further order that the offender shall be subject to the special restrictions set out in this section. . .; and an order under this section shall be known as 'a restriction order'." 8. The single judge, in refusing leave, observed that it would have been better had the learned judge expressed himself explicitly in terms of section 41. 9. Miss Chaplin, in her able written and oral submissions, has submitted that the leap from the nature of the offending on this occasion to a section 41 order and the failure of the judge properly to grapple with the issue whether it was necessary to protect the public from serious harm meant that the learned judge took too large a step from the facts of this case and the material before him in disagreeing with the opinion of the two psychiatrists who had provided reports and one of whom had given explicit oral evidence. 10. In our judgment, that is a proposition which, we regret to say, is unarguable. True it is that, by good fortune, the offences for which he had to be dealt were not of the most serious, but, as the judge observed, they did involve uninhibited behaviour by a man who was plainly under the influence of alcohol and Khat, which appeared to have been targetted at vulnerable people, namely elderly people walking around in the street, and the nature, particularly of the assault, was such that the relatively minor nature of the offence with which he was charged was a matter of good luck and that the injuries caused to CB could have been significantly more serious. 11. In all the circumstances, given the antecedent offending by this offender, given the nature of his mental disorder, given the unrecognised contribution of substance abuse as reported by the psychiatrists, in our judgment the learned judge, in making the judgment, which was for him to make, cannot be said to have either been wrong in principle or to have imposed an order which was manifestly excessive in concluding that the section 41 test was satisfied. In our judgment therefore this application must fail and we dismiss it.
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