Bartram v Southend Magistrates Court

A magistrates’ court may make a hospital or guardianship order under section 37 of the Mental Health Act 1983 without convicting an accused who has done the act charged. Controlled symptoms do not remove that power where the person continues to suffer from mental illness and the statutory conditions are met. An interim hospital order under section 38 requires a conviction. Proceedings under section 37(3) may be reopened under section 142(1) of the Magistrates Courts Act 1980 where that is in the interests of justice.

The claimant killed his dog while suffering from paranoid schizophrenia and was charged with causing unnecessary suffering to an animal. The magistrates found that he had done the act charged and made an order under section 37(3) of the Mental Health Act 1983, purportedly coupled with an interim hospital order. Later medical reports showed that treatment had stabilised his condition. The District Judge concluded that section 37 was no longer appropriate and directed that the charge proceed in the ordinary way.

The claimant sought judicial review. The issues included whether section 37 remained available, whether the proceedings could be reopened, and whether a retrial was required.

1. Application allowed. The District Judge’s decision was set aside. The case was to be dealt with under section 37 of the Mental Health Act 1983, with the court deciding whether a hospital order or guardianship order was appropriate.
2. Section 37(3) permits an order without conviction where the court is satisfied that the accused did the act charged. That requirement concerns the actus reus only and does not import mens rea. The offence here was one of absolute liability.
3. The medical evidence showed that the claimant continued to suffer from paranoid schizophrenia, although medication had controlled its symptoms. The District Judge therefore erred in treating section 37 as unavailable. Guardianship could provide monitoring, residence and treatment requirements, together with safeguards against relapse.
4. The purported interim hospital order was wrongly made under section 38, which requires a conviction. The proper power at that stage was remand to hospital for reports under section 35.
5. If a section 37(3) matter is to be reopened, the proper route is section 142(1) of the Magistrates Courts Act 1980. A section 37(3) order is an order made when dealing with an offender, although it is not a conviction. Section 142(2) did not apply. Reopening depends on the interests of justice. The principle in R v Thames Magistrates Court ex parte Ramadan [1999] 1 Cr.App.R 386 supported this approach.
6. A section 37(3) finding may engage section 1(4) of the Rehabilitation of Offenders Act 1974. That possibility, or any animal-keeping disqualification, did not require a retrial. The claimant required care and control, not punishment.