Hurst, R v

A restriction order under section 41 of the Mental Health Act 1983 requires more than a high risk of further offending, including violent offending. There must be evidence that any further offending creates a risk of serious harm to the public and that the restriction is necessary to protect against that risk.

The sentencing judge retains responsibility for the order and is not bound by medical advice. However, where medical evidence opposes a restriction order, the evidence must justify departing from it and the reasons should address that evidence. A hospital order may remain proper although a restriction order is not.

The appellant was convicted at Guildford Crown Court of assault occasioning actual bodily harm after a serious road-rage assault on an elderly motorist. On 27 April 2007, the sentencing judge made a hospital order under section 37 of the Mental Health Act 1983 and an unrestricted-in-time restriction order under section 41.

The appellant appealed only against the restriction order. His record included violence and there was evidence of a high risk of further offending. Both psychiatrists nevertheless recommended treatment under section 37 without a restriction order. The central issue was whether the evidence justified a conclusion that a section 41 order was necessary to protect the public from serious harm.

1. Appeal allowed. The court set aside the section 41 restriction order and substituted a hospital order under section 37 of the Mental Health Act 1983 without restriction.

2. The statutory inquiry requires the court to consider the nature of the offence, the offender’s antecedents and the risk of further offences. A restriction order may be made only where it is necessary to protect the public from serious harm. The judge is responsible for that decision and is not bound in principle by unanimous medical opposition. There must, however, be evidence capable of justifying it.

3. Applying Birch [1989] 11 Cr App R (S) 202, the court distinguished the likelihood of reoffending from the seriousness of the harm likely to result. A high possibility of minor offending is insufficient. It is necessary to assess whether, if the offender reoffends, serious harm to the public is likely.

4. There was ample evidence of a high risk of further violence. But the earlier violence had not caused serious harm, and the psychiatric evidence showed improving insight, response to treatment and a diminishing risk in an appropriate setting. There was insufficient evidence that future offending would cause serious harm or that a restriction was necessary.

5. The judge gave no adequate explanation for rejecting the consistent medical recommendation. Although the court understood the concern produced by the index offence, the far-reaching restriction order could not stand.

• Court of Appeal (Criminal Division): Allowed the appeal in [2007] EWCA Crim 3436, set aside the section 41 restriction order and substituted a section 37 hospital order without restriction.

• Guildford Crown Court: Convicted the appellant of assault occasioning actual bodily harm on 12 February 2007. On 27 April 2007, imposed a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983.