R v Paul Martin [1998] EWCA Crim 3166

The power to make a restriction order applies in cases where the patient poses a risk of serious harm from which the public needs protection. This is not the seriousness of the risk that the public may suffer some harm, but that the risk that the potential harm represented by the individual defendant would be serious. There should normally be some proportionate relationship between the instant offence and the history of offending, together with an assessment of risk on the basis of medical examinations before a section 41 restriction order is made. Restriction order quashed.


PAUL MARTIN, R v. [1998] EWCA Crim 3166Not on Bailii! (6th November, 1998)

No: 98/0552/Z3



Royal Courts of Justice

The Strand

London WC2

Friday 6th November 1998

B E F O R E :




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MR J MANN appeared on behalf of the Appellant

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( As Approved by the Court )

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Crown Copyright


LORD JUSTICE JUDGE: This is an appeal by Paul Martin who is now 36 years old. Unhappily he has a long history of mental illness and some inadequacy, but although now 36 he remained unconvicted of any criminal offence until 1993 when he was found guilty of using threatening and abusive words and behaviour. He was then given a conditional discharge. Some three years later in September 1996 he committed offences of criminal damage and was again given a conditional discharge and fined £10 for failing to surrender to custody. In January 1997 he was found guilty of common assault and using threatening and abusive words and behaviour, and this time placed on probation. The offence with which this court is concerned arises from the order of probation.

On 1st July 1997 he pleaded guilty before the magistrates to common assault. The magistrates were concerned about the appropriate way of dealing with this case and decided that he should be committed to the Crown Court for sentence. Eventually on 22nd December 1997 in the Crown Court at Isleworth before His Honour Judge Evans and Justices, he was made the subject of a Hospital Order under section 37 of the Mental Health Act, but in addition there was an order restricting his discharge from hospital under section 41 of the Mental Health Act to be applied without limit of time. The basis of the appeal before us, for which leave was given by the single judge, is in relation to the restriction order.

First, the facts of the offence. It was 20th May 1997, and the appellant had an appointment to see his probation officer. There was a hiatus and then a contratemps. Unfortunately he has in the past been the opposite of cooperative with people who have been trying to help him. On this occasion a lady probation officer who had had dealings with him went to see whether she could calm the situation down. He appeared in the immediate moment when she spoke to him to have settled down, and then when told that what he wanted was not possible, his mood changed very suddenly and he became extremely venomous in the way in which he spoke and demanded to see the probation officer. He subjected the lady who was trying to help to a tirade of abuse. She plainly felt intimidated; she thought she was at risk of physical injury and indeed that was what happened. Eventually she left and he followed her and in the car park, punched her in the back of the head three or four times with his fists. They were forceful blows, obviously extremely painful to the lady, and resulted in bumps on the back of the head with accompanying tenderness and swelling; a most unpleasant and no doubt deeply distressing incident, after which the appellant walked away. When the police officers saw him he was by now in hospital. He was told of the allegations. He said he had not punched her, he had just tapped her on the back of the head but eventually when interviewed, he admitted he had lost his temper.

That was the case. Of course, given his history, there was proper investigation into his mental state. Each court that has dealt with the case was provided with a series of reports into his condition and we, today, have been supplied with yet further evidence. It is difficult fairly to summarise the contents of the reports but in view of the fact that there is no dispute that an order under section 37 of the Mental Health Act was an appropriate way to deal with the case, we will be forgiven if we merely concentrate on the evidence relating to the issue whether or not the restriction order was or continues to be appropriate.

Dr Dent produced a report dated 19th June. His view was that it was far too early to form a final view. He recognised the mental condition but he advised a temporary order under section 38 of the 1983 Act.

Dr Dye examined him in October 1997, and spoke of a number of incidents immediately after his admission to hospital of abuse and racist abuse, all verbal with no signs of physical violence. The doctor thought that he represented a danger to the public but the extent of that danger was undefined and unspecified. There was then a report from doctors Maier and Bayney. They set out the same sort of developing story confirming the previous diagnosis, recommending as Dr Dye had a section 41 restriction order, but again without analysing the extent or seriousness of the risk actually posed by the appellant. What became apparent in the course of those reports was the understandable concern of the doctors responsible for this appellant\'s care about the effect on him if the restriction order were not imposed. The advantage of a restriction order from their point of view - and it remains one of the advantages which Dr Murdoch has spoken about today - is that the mental health of the appellant could be closely monitored; the circumstances in which he could be released would be more controlled; and, in particular, if there were any suggestion that on release his condition was deteriorating or he was failing to take advantage of the treatment which was being provided, that possibility could be met by an early return to hospital.

There was further evidence from Dr Maier in May of 1998 and Dr Somekh in June of 1998. They reached a different conclusion, again not so much about the diagnosis, but about whether or not there should be a restriction order. Today we heard further evidence from Dr Somekh and Dr Murdoch.

We acknowledge the concern of those who are treating this appellant, perhaps to a much greater extent than he does himself, but Dr Murdoch would be the first to say that they are not doing the work they do in order to get some hint of gratitude from a patient. The issue here is simply defined and not easy to resolve. This was an unpleasant offence. Even on the basis that attention can be paid to the complainant\'s injuries when the appellant was convicted only of common assault, his previous convictions were also unpleasant, and do not make happy reading. The conviction with which we are concerned was part of a pattern of offending from which the appellant had been entirely free for very many years. All that said and done, looked at at its worst from his point of view, the maximum sentence that the court could have imposed for the offence of which he was convicted was six months\' imprisonment. In the result he has now been treated, it is true, in a hospital under the Mental Health Act, for coming up for 18 months.

There is also a history of anti-social behaviour and inadequacy. Without putting too fine a point on it, the appellant has had difficulties living in the community. One of the worst manifestations of his difficulties is that through his own previous conduct, itself of course a manifestation of his mental ill-health, he has alienated a very large number of people who have been willing in the past to care for and provide him with assistance, and indeed some stability.

There is therefore a significant problem. If he were to be discharged as a patient, he would need help of the kind that he has in the past rejected. The concern of the doctors now responsible for his care is that without that assistance he would be, at least at risk of relapse, and if he then relapsed there would be a risk of redevelopment of the threatening and abusive behaviour which has recently, become the pattern, with possible violence of the kind and to the level which occurred in the present case, particularly towards those who would care for him. It does not need very much imagination to see how this circle might continue. What is to his credit and to the credit of those who have been caring for him, is that after a not very good start in hospital he has in fact made considerable progress and we have been told that there have been no serious incidents in recent times.

The restriction order under section 41 of the Mental Health Act is meant to impose restrictions on the exercise of powers to discharge a patient. There are a significant number of hurdles which have to be overcome before such a patient can be discharged which are not present under section 37 - although discharge under section 37 does not necessarily follow automatically. But section 41 is a power which is meant to be exercised to cater for a specific problem. It applies in cases where the patient poses a risk of serious harm from which the public needs protection. This is not the seriousness of the risk that the public may suffer some harm, but that the risk that the potential harm represented by the individual defendant would be serious.

We have examined the evidence on that topic in the light of the relevant section. We recognise that the absence of a restriction order may, when the appellant is discharged, mean that he would represent a risk. It is a risk which we do not underestimate and it is a risk which may involve some physical harm to members of the public who cross him. We do not minimise that possibility, but when we ask ourselves the question: "Does he represent serious potential harm to the public?", we are left with evidence which suggests that the sort of conduct on the instant occasion is about the worst which can be foreseen, to the extent that these things can be foreseen, and indeed there is evidence from both doctors to suggest that future offences would be unlikely to be any worse than this offence. Although it is not the ultimate consideration, there are members of the public sitting in court and it is worth just underlining, that for an offence for which the maximum sentence of imprisonment is six months, this appellant has now been detained as a patient in a mental hospital for very nearly 18 months, and that detention will continue. There should normally be some proportionate relationship, in our judgment, between the instant offence and the history of offending, together with an assessment of risk on the basis of medical examinations before a section 41 restriction order is made.

We have come to the conclusion that looked at in this way, the risk which this man represents does not justify an order under section 41. Although it is perfectly right that in his own interest there would be a great deal to be said for him remaining where he is and continuing to receive the treatment that he does, we do not think that can be enforced by the use of section 41. In those circumstances the appeal will be allowed; the restriction order will be removed; the appellant will return to hospital; the order under section 37 of the Mental Health Act will continue.


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