REGINA v LUCY OSAYAMEN INNEH

A restriction order under Mental Health Act 1983 section 41 may be necessary for public protection despite expert medical opinion that a hospital order alone would suffice. The sentencing judge must assess the whole pattern of risk. Relevant matters may include the gravity of the offence, an enduring relapsing illness, prior violence when unwell, the complexity and speed of relapse, and the safeguards available on discharge.

Medical evidence is important but does not determine the statutory necessity of a restriction order. An appellate court will not interfere where the judge has identified and weighed the relevant considerations and was entitled to conclude that the additional scrutiny and recall safeguards are necessary.

The appellant was found by a jury at the Crown Court at Isleworth to have committed an unprovoked and serious assault upon a 94-year-old man, but was not guilty by reason of insanity. The trial judge made a hospital order under Mental Health Act 1983 section 37 and a restriction order under section 41.

The appellant appealed against the restriction order. Her clinicians agreed that she required a section 37 hospital order but did not recommend restrictions, relying on her substantial progress in treatment. The central issue was whether the judge had been entitled to find a section 41 order necessary for the protection of the public.

1. Appeal dismissed. The judge was entitled to conclude that a restriction order under Mental Health Act 1983 section 41 was necessary for the protection of the public.

2. The medical evidence was an important consideration, but it was not decisive. The decision whether a restriction order was necessary was for the judge, who had to assess public protection as well as the appellant’s treatment and rehabilitation.

3. The judge properly considered the appellant’s positive progress during her lengthy admission. She was nevertheless entitled to give substantial weight to the serious violence of the index offence, the chronic relapsing and remitting nature of the illness, repeated violence when unwell, and the speed and complexity of past relapses.

4. In particular, the risk did not arise only from a failure to take medication. The evidence supported the judge’s conclusion that stress and pressure could also trigger sudden deterioration, during which the appellant could cause serious injury. A section 37 hospital order alone did not require the judge to regard the public risk as sufficiently managed.

5. A restriction order did not preclude discharge when a Mental Health Review Tribunal considered discharge appropriate. It provided additional scrutiny of discharge and safeguards of supervision and recall. The court therefore upheld the order.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the Crown Court at Isleworth’s hospital order under Mental Health Act 1983 section 37 and restriction order under section 41 ([2021] EWCA Crim 2004).
• Crown Court at Isleworth: after the jury found that the appellant had done the act charged but was not guilty by reason of insanity, made a section 37 hospital order and a section 41 restriction order.