R v Searles  EWCA Crim 2685,  MHLO 156
Custodial sentence of two years' detention in a young offender institution quashed and unrestricted hospital order substituted in its place.
Neutral Citation Number:  EWCA Crim 2685 No:201107021 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 22nd November 2012 B e f o r e: LORD JUSTICE TREACY MR JUSTICE FULFORD RECORDER OF WESTMINSTER HIS HONOUR JUDGE McCREATH (Sitting as a judge of the Court of Appeal Criminal Division) 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 7422 6138 (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 TREACY: This appellant, Ashley Searles, comes before the court with the leave of the single judge. On 8th December 2011 he was sentenced at the Crown Court at Wood Green for an offence of robbery. He had previously been convicted after a trial. The Recorder dealing with his case sentenced him to two years' detention in a young offender institution and ordered that time spent on remand should count towards sentence. 2. The facts of the offence show that at 7 pm on 9th April 2011 a woman was in a fish bar in Tottenham High Road with her daughters, grandchildren and a friend. As they were eating their meal this appellant entered the shop, he kicked the door in order to do so. He was swearing and behaving abusively. He attempted to engage the complainant in conversation and was using bad language, speaking of himself as a "fucking mad man" and more in similar vein. Unsurprisingly, the group felt intimidated and left the restaurant. Regrettably, they were followed by the appellant. He continued to follow them, although they sought to evade him. As the complainant was holding the hands of two young grandchildren, she found himself pulled back by the force of the appellant grabbing her neck chains. He was shouting "Give me the fucking chains". The complainant's daughter intervened, but the appellant succeeded in breaking the two chains from the victim's neck and running off with them. They were worth £150 but were also of sentimental value to her. The victim sustained some scratches to the back of her neck and needed to take painkillers for aching caused by the forcible removal of the chains. 3. A few days later the appellant was seen in the area. The police were contacted and he was arrested. He did not co‑operate in interview. Whilst in police custody he was smiling and laughing and asking whether he could go to sleep. Whilst he was on remand at Feltham his behaviour there aroused concern in relation to his mental condition. 4. Counsel urged the judge to order a psychiatric report. In passing sentence, although the judge referred to the appellant's apparent degree of separation from reality in his behaviour and perceptions, and although the judge noted that in the past he had been treated with anti‑psychotic medication, he said he did not consider that he would be helped by a psychiatric report, and that if treatment proved to be necessary it could be made available to the appellant whilst he was in custody. 5. This appellant is now 20 years of age. He has not previously been convicted, although there are cautions for possession of cannabis and battery. 6. The pre‑sentence report outlined the inappropriate behaviour of the appellant during the interview process with the author of that report and expressed concerns about that irrational behaviour. The author of the report suggested that a psychiatric report should be obtained. 7. The grounds of appeal submit that the judge was wrong in the circumstances not to order the preparation of such a report and submit that the judge failed to have regard to the appellant's psychiatric history as well as the other information. In a case where there was an absence of clear explanation for aspects of this appellant's behaviour at the time of the offence and subsequently, a report should have been obtained. 8. The matter came before the full court on 25th July 2012. The court was clearly of the view on that occasion that the judge below should have obtained a psychiatric report before passing sentence. By the time of that hearing a psychiatric report dated 16th July 2012 from Dr Shamir Patel, a consultant psychiatrist, had been obtained. We quote Dr Patel's conclusion: "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 One of the Mental Health Act 1983 (as amended). This is currently characterised by 3rd 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 2 years imprisonment [sic] ... 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 antipsychotic 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 [sic], including for battery, if not related to his past substance abuse, may be suggestive of pre‑morbid antisocial personality traits, or may be representative of deterioration in his social functioning and personality due to his mental illness. Mr Ashley Searles currently 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 and with a view to the safety and protection of others." 9. On that occasion counsel submitted to the court that an order under section 37 of the Mental Health Act 1983 should be made, coupled with a restriction order under section 41. Since the court only had Dr Patel's report, the matter was adjourned for a further psychiatric report. 10. We now have a report from Dr Emmanuel Okoro, a specialist registrar in forensic psychiatry. That report is dated 20th September 2012. Dr Okoro's conclusions supported those of Dr Patel. In particular, Dr Okoro said that Mr Searles had a two year history of psychotic illness, meeting the international classification criteria for paranoid schizophrenia. His mental illness has been characterised by psychotic symptoms. Those symptoms have persisted over time while not using cannabis, for instance whilst in custody and in hospital, thereby confirming a functional mental illness as opposed to a transient drug‑induced psychosis. Dr Okoro went on to say that Mr Searles' mental disorder was of a chronic, remitting, relapsing nature and was currently of a degree that makes it appropriate for him to continue current treatment in hospital. That is for his health and safety and for the protection of others. Dr Okoro went on to say that there had been observed significant improvement in this appellant's mental state since his transfer to hospital from prison and the commencement of treatment. 11. We have had the benefit of hearing oral evidence from Dr Okoro before us today. He confirms the contents of the report from which we have already quoted, but he says that the situation has now developed further since he set those views out in September of this year. He says that the clinical team of which he is a significant member have given further consideration to the risks posed by this appellant. They now assess the risk of further offending by this appellant as low if his mental state continues to be controlled. The conclusion, after a detailed consideration of the question of whether there should be a restriction order, is that it is not now appropriate to recommend a restriction order pursuant to section 41 of the Mental Health Act. If this case had been dealt with promptly, in other words at or around the time of sentencing last year, then in Dr Okoro's view it is unlikely that the appellant would have got into the condition which required his transfer from prison to hospital earlier this year. Now that he has been transferred to hospital and has been there for several months, there are clear indications of significant progress in his case. Those indications of progress have been such as to lead the clinical team to assess the risk of future offending as low. 12. The proposal put forward by Dr Okoro is that the court should make an order pursuant to section 37 of the Act, but not that the court should couple it with a restriction order. Dr Okoro rightly recognised that the ultimate responsibility for the making of such an order lies with the court, rather than the clinical treating team. Nonetheless, there is plain value to be derived by the court in giving careful consideration to the deliberations of those who have addressed the relevant questions in a clinical setting. 13. The views of the clinical team presented to us today by Dr Okoro have reached this position: that a section 37 order would be sufficient and appropriate in this case, coupled with enabling a release of this appellant at an appropriate time into the community under the aegis of a community treatment plan. There have already been discussions and arrangements have already been made between the current clinician and the person who would be the clinician responsible for this appellant's care and treatment whilst in the community. Dr Okoro informed us in the course of his evidence that arrangements have been made for robust follow‑up in the community in order to monitor important aspects of this case, such as the continued taking of requisite medication. Dr Okoro indicates that there would be recall for assessment if there were any signs of deviation on the part of this appellant from behaviour which is necessary to secure his stable return to society. 14. We have given the most careful consideration to that evidence, alongside the responsibility which this court holds for considering what is necessary for the protection of the public from serious harm. We have considered the practicalities of the matter, and, as we understand the position, were we to make a section 41 order, contrary to the recommendation made to us by Dr Okoro today, the likelihood is that in a few months time the appellant, having continued to make the expected good progress which he has so far made, would find himself in the position of these self‑same considerations being put not before this court, but before a Mental Health Tribunal and then the Secretary of State. We consider that in the circumstances we are in as good a position today to make an assessment of the position as some other forum in a few months' time. 15. In considering the position, we look at the instant offence and we look at the history of this appellant. He has, of course, been convicted of an offence which involves a degree of violence. Apart from that matter, there is a caution recorded against him for an offence of battery, but beyond that there are no indicators in his past history of anything representing a risk to the public of serious harm in the future. 16. In the end, this court has to perform a balancing exercise, and having heard what we consider to be the impressive evidence given to us today by Dr Okoro, we have come to the conclusion that the right order to make is an order pursuant to section 37, without the necessity for making an order pursuant to section 41. 17. In so doing we have also addressed the question of section 11 of the Criminal Appeal Act 1968, which prevents this court imposing more severe treatment on an offender than the court below did. It is plain, particularly in the light of the course we now propose to take and in the light of the case of Bennett 52 Cr App R 514, that making a remedial order of the sort we intend cannot be regarded as more severe than a sentence of imprisonment or custody, notwithstanding the fact that this appellant will, within a matter of a week of two, be reaching the end of the term of custody imposed in the court below. The effect of the order which we make today will extend beyond the end date of that custodial term, but its purpose is ameliorative and remedial and not punitive and therefore does not fall foul of the restriction in section 11(3). 18. We have also during the course of the hearing today satisfied ourselves through the evidence of Dr Okoro that the necessary procedural requirements set out in section 37(4) are met. There is a hospital place immediately available, indeed this appellant is there already, and Dr Okoro himself is one of the responsible treating clinicians capable of giving relevant evidence to this court. 19. Accordingly, we dispose of this matter by quashing the term of custody which was imposed in the court below and in its place substituting a hospital order pursuant to section 37 of the Mental Health Act 1983. 20. We are grateful to Miss Furley for the assistance she has furnished to the court.
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