Regina v Thomas Salmon

For a restriction order under the Mental Health Act 1983, the court must consider all relevant circumstances, including the nature of the offence, the offender’s antecedents and the risk of further offending if at large. Where the feared harm is physical or psychological injury, the relevant threshold is risk of death or serious injury. A history of low-level offending and the absence of previous serious injury are relevant but not decisive. The assessment is prospective and must take account of mental disorder, insight, medication compliance, behaviour in hospital, prior community management and the likely availability of more dangerous means of violence. A restriction order may remain necessary even where post-discharge recall arrangements would be similar without it, because it imposes an additional restriction on discharge.

The appellant pleaded guilty at the Crown Court at Ipswich to assault occasioning actual bodily harm and assaulting an emergency worker. He was made subject to a Hospital Order under the Mental Health Act 1983, together with a Restriction Order. The sentencing judge relied on psychiatric evidence concerning the appellant’s chronic schizophrenia, lack of insight, likely refusal of medication and risk of further offending.

The appeal challenged only the Restriction Order. An updated psychiatric report stated that it would provide no additional safeguards compared with a Community Treatment Order. The central issue was whether, despite the low level of the offences and the absence of previous serious injury, the order was necessary for protection of the public from serious harm.

1. Appeal dismissed. The court upheld the Restriction Order made alongside the Hospital Order.
2. Under section 41(1) of the Mental Health Act 1983, the court must consider all relevant circumstances, including the nature of the instant offence, the offender’s antecedents and the risk of further offences if set at large. The Mental Health Act 1983 does not define serious harm. Although the definition in section 306 of the Sentencing Act 2020 could not automatically be transferred to this different statutory context, where the feared harm is physical or psychological injury the court should apply a test of risk of death or serious injury. The court referred to R v Birch (1990) 90 Cr App R(S) 78, where harm was held not to be limited to personal injury.
3. The absence of previous actual or intended serious harm was relevant but not decisive. The risk had to be assessed prospectively. Relevant matters included the appellant’s serious and treatment-resistant psychiatric disorder, lack of insight, likely refusal of medication, continuing anger and aggression, the need to prevent access to hot drinks even in hospital, and only partially successful previous management in the community. His rapid resort to hot liquid as a weapon, together with the ordinary risk that physical violence may cause serious injury, entitled the sentencing judge to find that serious harm was a real risk.
4. The updated report did not alter that conclusion. Although recall arrangements after discharge might be similar with or without a Restriction Order, section 41 imposed an additional restriction on discharge itself. The report’s focus on post-discharge precautions did not address that distinct safeguard, and the reasons given in the earlier oral psychiatric evidence remained persuasive.

• Court of Appeal (Criminal Division) [2022] EWCA Crim 1116: dismissed the appeal and upheld the Restriction Order.
• Crown Court at Ipswich: on 29 September 2021, HHJ Levett made a Hospital Order under the Mental Health Act 1983 and a Restriction Order, finding the latter necessary to protect the public from serious harm.