Cork v Rawlins
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE CHADWICK,LORD JUSTICE KEENE,LADY JUSTICE HALE,LADY JUSTICE ARDEN,THE PRESIDENT |
| Judgment Date | 12 February 2001 |
| Neutral Citation | [2001] EWCA Civ 202,[2001] EWCA Civ 197 |
| Docket Number | B1/2001/0171,B2/2000/2545B3/2000/2545 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 2001 |
[2001] EWCA Civ 197
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
(Her Honour Judge Pearlman)
The Royal Courts of Justice
The Strand
London WC2A
The President of the Family Division
(Dame Elizabeth Butler-sloss)
Lady Justice Hale
Lady Justice Arden
B1/2001/0171
B1/2000/0171/A
MR J JAMES (instructed by Lawrence Davies & Co, 90 Lillie Road, London SW6) appeared on behalf of the Appellant
MR M OTWAL (instructed by Kaim Todmer, Herbert Morison House, 195 Walworth Road, London SE17) appeared on behalf of the Respondent
MR J AGEROUS (instructed by the Official Solicitor) appeared on behalf of the Interested Party
Monday 12 February 2001
: This is an application for permission to appeal out of time by Mr Williams in a case with a very considerable history. He is at present serving a sentence of sixteen and a half months imposed by Her Honour Judge Pearlman on 4 August 2000.
The background of the case, very shortly, is this. Mr Williams is now 29. In 1997 he started to live with, and then married, his present wife. They had a child, the only child of the couple, but she had three elder children who lived with her. Mr and Mrs Williams lived together for a very brief time, and separated in April of 1998.
Throughout the period since the separation there have been problems between the couple. They arise from the state of mind of Mr Williams, which is bordering on coming within the Mental Health Act, if it is not in fact within it. He undoubtedly has considerable personality problems: whether or not they amount to a personality disorder is another matter. He may or may not be schizophrenic. He had undoubtedly abused a variety of drugs, mainly cannabis but also, at different times, amphetamines, methadone and crack cocaine. He has also taken alcohol to excess. The variety of drugs which he has taken, together with alcohol, have masked his undoubted personality problems so that it has been extremely difficult for the medical profession to work out whether or not he has a mental health condition coming within the Mental Health Act 1983.
What seems to be clear is what was said by one of the consultants last year, Dr Herst; that he is impossible to manage in the community. Over the period from towards the end of 1999 through to March 2000 Mr Williams engaged in a series of both troublesome and violent episodes at the house of his wife and children. A non-molestation order was made on 4 November 1999 with a power of arrest attached. The outstanding examples of breaches were that on 9 February 2000 he was found stamping on the top of his wife's car, and on 6 March 2000 he attacked his wife in the former matrimonial home, when he cut her left hand with a Stanley knife and she had to have considerable surgery to repair it. Thereafter he made a series of threats to kill, and on 24 March he attempted to enter the house and tried to steal her bag and her keys. At different times he has engaged in a degree of self-harm. There have been a number of possible suicide attempts. Whether they were intended as suicide or not it is difficult to say. Certainly he cut his wrists on more than one occasion. He was arrested in March 2000 and has been incarcerated ever since.
There are been four separate reports on Mr Williams. The first was in Pentonville, by Dr Herst on 12 April 2000. Dr Herst said that he had antisocial personality disorder, and it was he who said that he was out of control. On 6 June 2000 Dr Kahtan said that he was a paranoid schizophrenic. On 13 July 2000 Dr Maginn said that he had a personality disturbance but questioned whether it was mental illness. On 10 January 2001 Dr Herst, in a short, standard-type prison medical report, said that he was now capable of managing his own affairs, there was no current evidence of mental illness and his schizophrenia was being controlled by drugs. I will not trouble today to go through the various reports, but in many areas they are in conflict and it is extremely difficult to ascertain the present state of health of Mr Williams.
There have been a number of orders of judges. Mr Williams was arrested on a number of occasions prior to 24 March 2000. He has been several times remanded in custody. He was discharged in January 2000 by His Honour Judge Tyrer because the wife did not pursue the allegations. There were various breaches, as I have mentioned, in February and March 2000 and on 24 March 2000 he was arrested. He was remanded to Pentonville Prison and that is when the first report came from Dr Herst. Legal aid was granted to him in April 2000. He was again remanded in custody, when the psychiatric report of Dr Kahtan was obtained. In June Her Honour Judge Pearlman adjourned the case again and remanded him in custody. Again in June he was remanded in custody. The Official Solicitor was invited to represent him. The Official Solicitor has attended on subsequent occasions but has not yet accepted the invitation to represent him. In July there was the psychiatric report of Dr Maginn. On 19 July 2000 Mr Recorder Turcan directed that further information should be provided as to his state of health; whether it came within the Mental Health Act; and whether it came within the appropriate section of the Mental Health Act so as to provide the basis for making a hospital order or an interim hospital order. For some extraordinary reason, the direction of Mr Recorder Turcan has never been complied with. He was again remanded in custody until 4 August 2000.
On 4 August Her Honour Judge Pearlman found herself placed in a considerable difficulty. She was under the misapprehension that Mr Williams had been remanded under section 35 of the Mental Health Act 1983 and that her powers under the Family Law Act 1996 were under that section of the 1983 Act. Therefore, since there had been a twelve-week remand in total, she believed that she did not have the power to remand him any further, although at that stage there still were not adequate reports as to what was his state of health nor how best to move forward for his sake and, indeed, for the sake of the community at large. Under the misapprehension by this very experienced judge that she was not able to remand him in custody any longer, she decided that she had to bite the bullet and make a decision on the admitted contempt, particularly the serious injury to the wife caused to her hand by the Stanley knife. Therefore she made the order. Contempt was found proved, as it clearly was and was admitted, and she sentenced Mr Williams to imprisonment for sixteen and a half months.
In my judgment her view of her powers was incorrect. Section 48 of the Family Law Act reads:
"(1) If the relevant judicial authority has reason to consider that a medical report will be required, any power to remand a person under section 47(7)(b) or (10) may be exercised for the purpose of enabling a medical examination and report to be made.
(2) If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judicial authority remands the accused in custody.
(3) If the relevant judicial authority so remands the accused, the adjournment must not be for more than 3 weeks at a time."
That does not have an end date. Consequently, as I read the section, the court may continue indefinitely to remand for three weeks at a time someone who is remanded to prison, and the twelve week requirement under section 35 of the Mental Health Act does not apply to section 48(1) of the Family Law Act 1996. Consequently she was wrong in law (as I said, most unusually for this experienced judge) and we cannot allow the order to stand.
What in fact Judge Pearlman would have done with this appellant I do not know. I feel that she would have been unlikely to have sentenced him to imprisonment if she could have had the opportunity to remand him further. But she did not take the opportunity to consider whether it was right to sentence him because she felt that she was obliged to, and that there was no other step that she could take.
Consequently, I would allow the appeal and set aside the sentence of imprisonment. But I warn Mr Williams that if he is fit to conduct his affairs, if he is not suffering from any mental illness or, in particular, from a mental illness that is capable of being helped by the medical profession, the question of the serious contempt of March 2000 is still outstanding and may have to be dealt with, either by this court or by another court. But for the time being, I for my part am satisfied that it is absolutely crucial that at this stage we obtain suitable reports to be able to decide what is best for him for the immediate future, with a view to seeing if he can get proper treatment. If he can, that treatment might save both him and the community from further serious episodes in the future.
Mr Jones, who has represented Mr Williams today through legal aid, has had a difficult time as have those behind him because after the decision of Judge Pearlman there was no appeal. There is an appeal as of right in relation to liberty of the subject. Legal aid was sought for an appeal. Astonishingly, since this was an applicant potentially under a disability, sentenced to imprisonment in the circumstances in which he was, with an argument about whether or not the judge did or did not have the power to remand further, legal aid was refused. Fortunately, on appeal it was eventually granted. Mr Williams' own lawyers then issued the proceedings for appeal out of time. For my part, I have no difficulty in giving...
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