Restriction Orders
| Author | Michael Butler |
| Pages | 109-115 |
Chapter 11
Restriction Orders
11.1 INTRODUCTION
Whenever the Crown Court imposes a hospital order under section 37 of the MHA 1983, it may also impose a restriction order under section 41 to accompany it, the chief effect of which is to require key decisions regarding the patient to be made only with the approval of the SSJ. Whether to impose a restriction order is left to the discretion of the sentencing judge, but it will be used for those cases where concerns for public safety are such that future decisions regarding the patient ought not to be left to the clinical team alone. A restriction order has no life of its own and may only be imposed to accompany a hospital order. This chapter considers the factors which will impact on a court’s decision to impose a restriction order, and the consequences of such an order for the offender.
11.2 MAGISTRATES’ COURT
Magistrates have no power to impose a restriction order, but if dealing with an offence for which one appears suitable, they may commit the defendant for sentence to the Crown Court under section 43 of the MHA 1983. The power is available whenever magistrates are sentencing an offender over the age of 14 who has been convicted of an offence punishable on summary conviction with imprisonment, where the conditions for imposing a hospital order are satisfied and where it appears to the court that a restriction order should also be made. The power, therefore, allows magistrates to commit to the Crown Court for sentence in respect of summary-only offences, which would not normally be dealt with in the Crown Court at all.
A committal in this way is not binding on the Crown Court, which may deal with the offender in any other manner in which the magistrates might have dealt with him (section 43(2) of the MHA 1983).
110 A Practitioner’s Guide to Mental Health Law
11.3 DECISION TO IMPOSE A RESTRICTION ORDER
According to section 41(1) of the MHA 1983, the Crown Court may impose a restriction order to accompany a hospital order whenever it appears ‘having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do’.
When considering whether to add a restriction order to a hospital order, the court must ask itself whether the risks posed by the offender to the public are significant enough to warrant the serious consequences for him (summarised at para 11.6) of the imposition of the order. Given that this is an exercise in risk evaluation, decisions tend to be very case-specific. The individual weight to attach to each of the factors affecting risk (the nature of the offence, the antecedents of the offender, and the risk of further offences) is a matter for the sentencing judge, and may vary from case to case. A judge may, for example, impose a restriction order in respect of a minor offence where previous offences or the risk of further offences indicates a significant risk to the public (R v Birch (1989) 11 Cr App R (S) 202), and may decline to impose one in respect of a very serious offence where it is clear from other factors that the risk to the public is low (Courtney [1987] 9 Cr App R (S) 404).
The term ‘public’ used in section 41(1) of the MHA 1983 is not restricted to the general public and may refer to an individual person, and ‘harm’ is not limited to...
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