Narey v Commissioners of Customs and Excise
| Jurisdiction | England & Wales |
| Judgment Date | 15 April 2005 |
| Neutral Citation | [2005] EWHC 784 (Admin) |
| Date | 15 April 2005 |
| Court | Queen's Bench Division (Administrative Court) |
[2005] EWHC 784 (Admin)
Court and Reference: Administrative Court; CO/0224/2005
Laws LJ, David Steel J
Appearances: M Walsh (instructed by Hamnett Osborne Tisshaw) for N; K Wilkinson (instructed by HM Customs & Excise) for the Respondent.
Whether there was sufficient evidence for the imposition of a restriction order where a defendant was unfit to plead; the requirements for making such an order.
Whilst N was on remand in prison, having been charged with importing 3.38 kilos of cocaine, issues were raised as to his mental health. Medical reports concluded that he was unfit to stand trial. In September 2004, a jury found N unfit to stand trial, and a second jury found that he had done the act alleged against him. The judge made an admission order under s. 5(2) Criminal Procedure (Insanity) Act 1964and also exercised his discretion under Sched 1 para 2(1)(b) Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 to impose an order restricting N's discharge without limit of time, equivalent to an order under s. 41 Mental Health Act 1983 (a restriction order). N appealed by way of case stated, arguing that the restriction order was wrongly imposed in the absence of evidence that he posed a risk of serious harm to the public.
1. This is an appeal by way of case stated from a decision of the Crown Court at Croydon. The appellant appeals against the decision of HHJ MacRae on 13 September 2004 ordering the appellant to be admitted to hospital under s. 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by s. 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. The order was made in circumstances where a jury had found that the appellant was under a disability such as to render him unfit to be tried, and a second jury having found that the appellant did the act charged against him as an offence, namely being knowingly concerned in the fraudulent evasion of a prohibition on the importation of 3.38 kilos of cocaine from Grenada.
2. The form of order is in 3 parts:
(a) an admission order, whereby in accordance with Schedule 1 of the 1991 Act the appellant was to be admitted to a hospital specified by the Secretary of State within 2 months;
(b) a place of safety order, that, pending admission to hospital the appellant should be detained in HMP Highdown; and
(c) a restriction order, that in accordance with para 2(1)(b) of Schedule 1 to the 1991 Act, the accused shall be treated as if an order had been made under s. 41 of the Mental Health Act 1983restricting his discharge without limitation of time.
The thrust of the appeal as originally presented is based on the submission that the criteria of s. 41 were not satisfied in the present case. Before considering this submission it is appropriate to set out the background.
3. On 10 March 2004, the appellant arrived at Gatwick Airport from Grenada. He was found to be carrying the equivalent of 3.38 kilos of pure cocaine. He was arrested, interviewed and charged.
4. Following committal to the Croydon Crown Court, a plea and directions hearing took place before HHJ MacRae on 3 June 2004. Issues regarding the appellant's mental health were raised and a psychiatric report was ordered.
5. The report of Dr Angus was considered at a further hearing on 22 July 2004. The report states:
"5.1 Mr Narey is a 65 year old gentleman who was remanded to HMP Highdown on 11 March 2004.
5.2 When I examined him on 12 July 2004, he was clinically manic.
5.3 Mr Narey was unable to give a coherent history, and I have therefore concentrated on his mental state examination.
5.4 In Part II of this report I have outlined the attempts of the health staff at HM Highdown Prison to treat his manic state with the anti-manic medication Olanzapine. It was clinically evident that Mr Narey was not complying with his treatment, which he confirmed to me.
11.1 From my examination of Mr Narey I found [him] to be suffering from a manic episode. His disorder is characterised by disinhibition, an irritable and expansive mood, thought disorder, grandiose and loosely-constructed delusions, racing thoughts, disturbed sleep and a raised libido.
11.2 I note that Dr George seems to have established that his mental health history is both chronic and that the course of his disorder is unusual in that it is both rapid cycling and a mixed affective picture.
11.3 It has not proved possible to treat his illness in prison. He is not compliant with the medication. This is not clinically unusual when patients are psychotic and have no insight.
11.4 When seen on 12 July 2004 he was not fit to plead. He understood the nature of the charges against him, and he understood the role and function of the Courts. However, he would have been unable to give evidence or follow proceedings on account of his thought disorder, irritable mood and diminished concentration.
....
11.12 Disinhibition and poor judgment are clinical features of mania. It is not unusual for manic patients to run up large debts, or follow a course of action that later causes them intense embarrassment, or discomfort, when they have fully recovered.
11.13 Considering all these factors, overall I would recommend that Mr Narey is admitted to hospital under s. 35 of the Mental Health Act...."
6. A further report was ordered to be made available for the fitness to plead hearing. Meanwhile, the defence had instructed Dr George, to whom Dr Angus referred in the course of his report. Dr George produced a supplementary report on 30...
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