M, R. v

Under Mental Health Act 1983 section 45A, the discretionary power is to give a hospital direction and a limitation direction together. The serious-harm conditions for a restriction order under section 41 are not prerequisites to a limitation direction under section 45A.

A section 45A disposal remains a direction rather than an order under the Act. A defendant sentenced to imprisonment with such directions is therefore still dealt with for victim-surcharge purposes. Where the transitional surcharge regime gives no clear answer for an offence spanning its commencement date, and detailed analysis would be disproportionate, the issue should be resolved in the way least punitive to the offender. No surcharge may then be imposed under the former regime unless the sentence includes a fine.

The appellant pleaded guilty at the Crown Court at Bolton to conspiracy to steal from vulnerable hospital patients. He was sentenced to 18 months’ imprisonment and made subject to a hospital and limitation direction under Mental Health Act 1983 section 45A. A confiscation order and a victim surcharge order of £100 were also made.

He challenged the section 45A disposal. He contended that a limitation direction required the serious-harm conditions applicable to a restriction order under section 41, and that a section 37 order was appropriate instead. The Registrar also referred the victim surcharge. The central questions were the construction of section 45A and the applicable transitional surcharge regime for a conspiracy which extended across 1 October 2012.

1. The appeal was allowed only in respect of the victim surcharge. The hospital and limitation direction, and the custodial sentence, remained in place. The victim surcharge order was quashed.

2. Section 45A(1) and (2) of the Mental Health Act 1983 set the conditions for a hospital-direction disposal. Those conditions mirror the relevant section 37 conditions and were satisfied. Section 45A(3) gives the court a discretion to give both a hospital direction and a limitation direction. The word “may” qualifies the decision to make the two directions; it does not permit a hospital direction without a limitation direction once that disposal is selected.

3. The reference in section 45A(3)(b) to the special restrictions in section 41 incorporates those restrictions, not the separate conditions in section 41(1) for making a restriction order. A limitation direction under section 45A therefore does not require proof that the offender poses a risk of serious harm. The surrounding subsections and section 50(2), under which the limitation direction ends on the release date while the hospital direction continues, supported that construction.

4. On the facts, the sentencing judge was entitled to conclude that the appellant’s culpability required punishment as well as treatment. The challenge to the section 45A disposal was dismissed.

5. For the victim surcharge, the court held that a section 45A disposal is a direction, not an order under the Mental Health Act 1983. The appellant was thus still a person dealt with for the purposes of section 161A(4)(b) of the Criminal Justice Act 2003. However, the transitional provisions did not clearly resolve a single conspiracy spanning 1 October 2012. Applying the guidance in R v Bailey and Others [2013] EWCA Crim 1551, lengthy analysis was disproportionate and the issue had to be resolved in the least punitive way. At least part of the offence was treated as pre-dating the new regime. As the sentence included no fine, no surcharge was permissible.

• Court of Appeal (Criminal Division) — granted leave and allowed the appeal only to quash the victim surcharge order: [2014] EWCA Crim 1641.

• Crown Court at Bolton — on 2 and 4 April 2014, imposed 18 months’ imprisonment with a hospital and limitation direction under section 45A of the Mental Health Act 1983, together with confiscation and victim surcharge orders.