Jones v Isleworth Crown Court

For a restriction order to be justified, the court must assess whether it is necessary to protect the public from serious harm. The assessment is prospective. Past conduct is relevant, but the risk need not be determined solely by the precise nature of past violence. The court may consider escalation, mental disorder, substance misuse, behaviour in hospital and the risk of further offending. Medical evidence is important, but the judge is not bound by an expert’s view. Harm is not confined to personal injury, although the decision must be read as based on the risk of serious physical violence where that is the evidential foundation.

The claimant, who suffered from paranoid schizophrenia, challenged the decision of the Isleworth Crown Court to admit him to hospital under section 5 of the Criminal Procedure (Insanity) Act 1964 and direct that he be treated as subject to restriction-order provisions. The Crown Court had found that he presented a risk of serious harm to the public, having regard to his history of burglary, violence, drug misuse, auditory hallucinations and aggression while detained in hospital.

The claimant accepted that a hospital order was appropriate but argued that the evidence did not justify the additional restriction order. The central issue was whether the Crown Court had evidence on which it was entitled to conclude that the restriction was necessary to protect the public from serious harm.

1. The application for judicial review was dismissed. The Crown Court was entitled to impose the equivalent of a restriction order.
2. Under section 41 of the Mental Health Act 1983, the court must consider the nature of the offence, the offender’s antecedents and the risk of further offences if the offender is at large, and decide whether restrictions are necessary for protection from serious harm.
3. The assessment is directed to future risk. Past conduct provides guidance, but does not determine the nature of the future risk. The judge was entitled to consider the claimant’s escalating violence, paranoid schizophrenia, commands to harm others, substance misuse, assaults and aggression towards staff and others in hospital.
4. The fact that previous attacks had involved only punches did not prevent a finding of serious harm. The judge was not required to assess future risk solely by reference to the severity of past violence, particularly where the evidence disclosed escalation and serious mental disorder.
5. The judge was not bound by the treating psychiatrist’s opinion that the threshold for a restriction order had not been reached. Medical evidence had to be considered, but the ultimate assessment was for the court.
6. Although the Crown Court referred to harm in a potentially wider sense, its ruling read as a whole showed that the operative basis was a risk of serious physical violence to the public if a restriction order were not made. That conclusion was amply warranted by the evidence.

• Isleworth Crown Court: on 24 May 2004, directed that the claimant be admitted to hospital and treated as subject to restriction-order provisions.
• High Court (Administrative Court): dismissed the application for judicial review and upheld the Crown Court’s decision.