Bukowicki, R (on the application of) v Northamptonshire County Council

Under section 37 of the Mental Health Act 1983, a local authority has a wide discretion whether it is willing to receive an offender into guardianship. It may consider every material matter relevant to managing the offender, including violence, disruptive behaviour, available resources, previous placements and the practical operation of guardianship powers.

The criminal court must consider the statutory conditions, but its view that guardianship would be suitable remains subordinate to the authority’s willingness to accept the offender. The authority must consider relevant medical evidence, any provisional judicial view, the Code of Practice and its own policy. Its weighting of relevant factors is for the authority, subject to ordinary public law controls.

Paul Bukowicki pleaded guilty to affray and appeared before the Crown Court for sentence. The sentencing judge considered that a guardianship order under section 37 of the Mental Health Act 1983 might be appropriate, but the defendant local authority declined to accept him into guardianship.

Mr Bukowicki sought judicial review of that refusal. He argued that the authority could not reconsider matters falling within the sentencing judge’s statutory assessment, particularly his propensity for violence and disruption. The authority argued that section 37(6) gave it a broad operational discretion to refuse guardianship where it could not safely or properly manage the offender.

1. The claim was dismissed. Permission was granted and the hearing was treated, with the parties’ consent, as the substantive hearing.
2. Section 37 requires the sentencing judge first to consider the medical evidence and whether the statutory conditions for guardianship are met. The judge must then consider whether guardianship is the most suitable method of disposing of the case. Those assessments include relevant evidence from the local authority and the medical practitioners.
3. Section 37(6) makes the judge’s assessment subordinate to the authority’s willingness to receive the offender. An order cannot be made while the authority refuses to accept the offender. Parliament had not provided for the judge to determine finally whether the authority’s refusal was reasonable.
4. The authority was entitled, and in principle required, to consider every material factor relevant to managing the offender in guardianship. That included his propensity for violence and disruptive behaviour, his history of failed placements, resources in the broad sense, and whether the limited guardianship powers could manage the relevant conduct.
5. The Code of Practice was not legally binding like a statute, but those to whom it was addressed were expected to consider it carefully and follow it absent good and cogent reasons. The authority was entitled to rely on its understanding that guardianship should facilitate an independent life with minimum constraint and should not be used where the guardian’s powers would be constantly resisted.
6. The authority had considered the relevant medical reports, its own policy, the Code of Practice and the claimant’s history. Its view that the absence of a previous guardianship order was of little significance was rational. The decision was neither perverse nor outside the range of reasonable responses available to the authority.
7. The court refused permission to appeal on the section 37 grounds, although any application to the Court of Appeal remained a matter for that court. The usual public funding and costs orders were made.

The judgment describes proceedings before the Crown Court, where the sentencing judge considered a guardianship order but could not make one because the local authority was unwilling to receive the claimant. The present court granted permission for judicial review, treated the hearing as substantive and dismissed the claim.