HP (Aka C)

A restriction order under section 41 of the Mental Health Act 1983 should not be maintained merely because of public concern about further offending. The court must assess whether the order will in fact protect the public and assist, or at least not impede, the offender’s treatment. Where the medical evidence shows that continued detention under the restriction is unlikely to reduce risk and is likely to worsen treatment and risk, the restriction order may be set aside. An alternative anti-social behaviour order need not be imposed where it adds nothing to the criminal law or is unlikely to help prevent the conduct.

The appellant pleaded guilty to three offences of making bomb-hoax telephone calls concerning Heathrow Airport or aircraft. Five similar offences were also taken into consideration.

At Isleworth Crown Court, HHJ Edmunds QC made hospital orders under section 37 of the Mental Health Act 1983 and restriction orders under section 41. The appellant appealed, with leave of the single judge, against the restriction orders only.

The psychiatrists agreed that the appellant had an emotionally unstable personality disorder and required pharmacological and psychosocial treatment. The central issue was whether continued restriction was necessary for public protection despite evidence that inpatient detention would not improve treatment or reduce the risk of further offending.

1. Appeal allowed. The restriction orders made under section 41 of the Mental Health Act 1983 were set aside.

2. The sentencing judge had carefully considered the medical evidence but concluded that public safety required a restriction order. The Court of Appeal respected that reasoning but disagreed with the conclusion.

3. The further psychiatric evidence established that a generic inpatient unit was not an appropriate setting for the appellant’s disorder. Continued detention was unlikely to assist treatment or reduce the risk of further offending. It was likely instead to increase that risk. Hospital detention also did not reliably prevent access to a telephone from which further calls could be made.

4. On that evidence, the existing regime had no sufficient protective or therapeutic value to justify its continuation. The court therefore set aside the restriction order while leaving the hospital orders in place.

5. The court also considered an anti-social behaviour order prohibiting false calls to emergency services. It declined to impose one because it would add nothing to the existing criminal law and was unlikely to assist the appellant in resisting the compulsive conduct. If further hoax calls were made, the ordinary criminal justice system would remain available.

• Court of Appeal (Criminal Division): Allowed the appeal and set aside the section 41 restriction orders: [2010] EWCA Crim 1383.
• Isleworth Crown Court: On 17 February 2010, HHJ Edmunds QC made hospital orders under section 37 and restriction orders under section 41 of the Mental Health Act 1983 for three bomb-hoax offences.