Narey v Customs & Excise

For an accused found unfit to plead who has been found to have done the act charged, the statutory route under section 5 of the Criminal Procedure (Insanity) Act 1964 and Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 is distinct from the regime governing restriction orders under section 41 of the Mental Health Act 1983. The court need not receive psychiatric evidence specifically addressing risk of serious harm.

Nevertheless, an indefinite restriction must be justified by a real risk of serious harm to the public. Medical evidence will ordinarily assist. Concern that an accused may stop medication, without evidence connecting that possibility to further serious offending, is insufficient.

The appellant was found unfit to plead and was subsequently found by a jury to have committed the act of knowingly being concerned in the fraudulent evasion of the prohibition on importing cocaine. The Crown Court ordered his admission to hospital under section 5 of the Criminal Procedure (Insanity) Act 1964 and directed under paragraph 2(1)(b) of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 that he be treated as subject to a restriction order under section 41 of the Mental Health Act 1983 without limitation of time.

He appealed by way of case stated, challenging the need for psychiatric evidence, the relevance of the index offence, and the sufficiency of the evidence supporting the restriction.

1. Appeal allowed. The requirements for a restriction order under section 41 of the Mental Health Act 1983 could not be read across into the separate statutory machinery under section 5 of the Criminal Procedure (Insanity) Act 1964 and Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

2. There was no statutory requirement under paragraph 2(1)(b) of Schedule 1 for oral evidence from a psychiatrist, evidence from more than one registered medical practitioner, or specific proof that special restrictions were required to protect the public from serious harm. The admission order was mandatory once the statutory findings had been made.

3. However, a restriction, particularly one imposed without limitation of time, had to be justified. The only possible justification was that the appellant posed a risk of serious harm to the public. Although the importation of substantial quantities of cocaine was capable of constituting serious harm, the court had to assess the evidence of future risk rather than rely on the nature of the index offence alone.

4. The court could take into account the risk to the appellant associated with failure to receive treatment. But the assumption that non-compliance with medication would probably lead to further offences of a similar kind was unsupported. The Crown Court had made no finding that the appellant posed a risk of serious harm to the public. His age, remote and largely unrelated previous convictions, apparent motivation, and likely return to an itinerant life did not establish the necessary risk.

5. The amended questions were answered: questions (1) and (4) in the negative; questions (2) and (3) in the affirmative.

• Croydon Crown Court: On 13 September 2004, ordered admission to hospital under section 5 of the Criminal Procedure (Insanity) Act 1964 and imposed an indefinite restriction under paragraph 2(1)(b) of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
• High Court (Administrative Court): Allowed the appeal by way of case stated and answered the amended questions as stated in the judgment.