Gordon, R. v [2025] EWCA Crim 1194 (15 August 2025)

Neutral Citation Number: [2025] EWCA Crim 1194 CASE NO 202402654/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT LEICESTER HHJ TIMOTHY SPENCER T202402654/A3 Royal Courts of Justice Strand London WC2A 2LL 15 August 2025 B e f o r e : LADY JUSTICE MACUR DBE MRS JUSTICE CUTTS DBE MR JUSTICE MURRAY ____________________ REX - v - STEVEN GORDON ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ MR P PRIOR appeared on behalf of the Appellant ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MRS JUSTICE CUTTS: On 20 October 2023 in the Crown Court at Leicester the appellant pleaded guilty to one offence of unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. No evidence was offered against him on the more serious charge of wounding with intent, contrary to section 18 of the same Act and a not guilty verdict was entered pursuant to section 17 of the Criminal Justice Act 1967 to that charge. He further pleaded guilty to an offence of threatening with a bladed article in a private place, contrary to section 52 of the Offensive Weapons Act 2019. On 28 June 2024 the appellant was sentenced on each count concurrent to a hospital order pursuant to section 37 of the Mental Health Act 1983 and was made subject to the special restriction as set out in section 41 of the same Act. A restraining order was imposed until further order. He appeals that sentence with the leave of the single judge. The sole ground of appeal is that the judge should not have made the order under section 41 of the Act. In April 2023 the appellant was aged 50 years and was living with his parents, as he had done throughout his life. On 18 April his mother, who was in the living room, noticed that he was shaking and asked if he was alright. He replied "no" and asked: "What have you done to me?" He was holding a kitchen knife. His mother took hold of his wrist as she feared he would stab her. He kept saying: "I can't let go. What have you done to me?" His mother asked him to put the knife down. After about 10 minutes the appellant stopped, he told her to get into the front room and to stay there. Frightened, she did as asked. Periodically she left the room to see the appellant walking around the living room saying, "no, no, no" to himself, as if he did not want to be the way he was being. She thought he would return to the front room but he did not. She did not leave as she was scared for her life. The appellant's mother then heard thudding upstairs and someone run downstairs. The appellant came to the front room and shouted that he had stabbed his father. He said he had knifed him and he thought he was dead. He had blood on his hands. The appellant then ran back upstairs. He was saying "Dad, don't die". His mother followed him and saw the knife on the floor at the top of the stairs. Her husband was in the front bedroom. As she entered the room she saw him on the floor on his side. There was a lot of blood around his legs. The appellant's father had no memory of what had happened. He lost a large amount of blood and went into cardiac arrest. After he was revived he was taken to hospital. He had suffered four stab wounds to his leg which severed his superficial thermal artery and vein. His injuries were described as life threatening and required emergency surgery, followed by intensive care and then further surgery. An MRI scan detected a tiny infarct on the right side of his brain and he was transferred to the acute stroke ward. On the day of the incident the appellant had been due to see a doctor in response to mental health concerns that had arisen on the previous Friday when the appellant had become worried about money and his bank accounts. The appellant was of previous good character. On 9 February he was admitted to Hazelwood House by means of an interim hospital order pursuant to section 38 of the Mental Health Act. There were a number of psychiatric reports before the judge at sentence. Dr Gurusinghe Dr Gurusinghe, a consultant forensic psychiatrist, was the appellant's responsible clinician at Hazelwood House. In a report dated 30 March 2024 he said that the appellant had been suffering with an anxiety and depressive disorder for many years which he had been able to manage without medication. He had been taking and benefiting from medication since he had been in Hazelwood House. Psychology assessments conducted to assess for intellectual disability showed significant evidence of intellectual disability but the appellant did not meet the criteria for detention under the Mental Health Act for that reason. However, the appellant clearly met the diagnostic criteria for Autistic Spectrum Disorder ("ASD"). ASD that is associated with abnormally aggressive and irresponsible conduct is within the meaning of mental disorder defined in the Mental Health Act. In the report, Dr Gurusinghe said that the appellant had not needed assistance from social and mental health services in his life, as he had been living in the family home and was well supported by his immediate family. That option, by reason of the restraining order, was no longer available to him. Faced with independent living for the first time in his life would cause immense stress to the appellant and lead to significant decompensation and ongoing autistic and learning disability related behavioural difficulties. He would require rehabilitation in learning disability and autism specialised services where he could be supported with psychosocial skills that he required for independent living. Hazelwood House was such a facility and a bed was available. Dr Gurusinghe recommended a hospital order pursuant to section 37 of the Mental Health Act. The report was silent as to the need for a section 41 restriction. In an email of 2 April 2024, Dr Gurusinghe confirmed his recommendation and said that "considering the nature of the index offence I recommend a secure service". In a further report dated 18 April 2024 Dr Gurusinghe said that since the appellant has no previous convictions or a pattern of offending, in his opinion his future risks could be managed in the community without a restriction order. If any new concerns emerged in terms of deterioration of his mental health, potential risks of harm to his parents or poor engagement with mental health services, these could effectively be managed by the provisions of a community treatment order that could be included in his discharge from hospital. In his view an hybrid order under section 45A of the Mental Health Act was not a suitable disposal in this case. The appellant had settled in well at Hazelwood House, engaged in all assessments required of him and had been fully compliant with treatment and risk management plans. He could be effectively rehabilitated in a hospital setting. Returning him to prison would be detrimental to his mental health and be a significant risk to his own life by reason of potential suicide or because he was vulnerable. Dr Gurusinghe gave evidence at the sentencing hearing on 28 June 2024 during which he maintained his recommended disposal of the case. On questioning from the judge he confirmed that Hazelwood House was a low secure service which could cope if the judge made a restriction order under section 41 of the Mental Health Act. He said that reference in his email to a secure service was to a secure hospital, which Hazelwood House was. He described the appellant as a model patient. He would not, he said, be content for him to leave hospital at that time, nor would he support discharge without a package for his care in the community as he would struggle a lot. We have seen an updated report from Dr Gurusinghe dated 2 June 2025 for the purposes of this appeal. This does not differ from his earlier reports to any great extent. The appellant remained concordant with his medication and co-operative with management plans. He had not been involved in any incidents towards patients or staff. The report records that the appellant reported feeling humiliated, frightened and unsafe at the time of the offence. He felt angry but could not understand why he had acted as he did. There had been one previous aggression when he punched a colleague at a garden centre, also when he felt humiliated. This suggests that the appellant presents with difficulties in dealing with his emotions and impulse control, especially under stressful conditions. He presents with abnormally and aggressive and irresponsible conduct that is directly associated with autistic spectrum disorder and requires further rehabilitation in Hazelwood House. Dr Gurusinghe's views about the need for a restriction order remained the same. Dr Shaik In a report dated 30 April 2024, Dr Shaik, a consultant psychiatrist in psychiatry of intellectual disabilities, agreed with Dr Gurusinghe's diagnosis that the appellant has a risk of violence and aggression associated with ASD which required admission to a low secure intellectual disability service such as Hazelwood House. If he were returned to prison there would be a risk of relapse of his mental illness and he was not therefore suitable for a hybrid order. Dr Shaik recommended a hospital order pursuant to section 37 of the Mental Health Act. He said there was no need in his opinion to place the appellant under a restriction order and it would not add any additional benefit to protect the public from serious harm. Dr Sawle In a report dated 13 June 2024 Dr Sawle, a forensic psychiatrist also expressed his opinion that the appellant presented with abnormally aggressive and irresponsible conduct that is directly associated with his ASD. There was no doubt that his intellectual disability also contributed to this behaviour and complicated matters at times. He also suffered from an anxiety disorder. Dr Sawle also spoke of the appellant having been well supported by his immediate family in the past. He now had to live independently. Input from social and mental health services would now be necessary to help prevent significant difficulties in the community. He required full assessment before moving forward with any management plan, focusing on his rehabilitation into society. This would most likely be achieved in a learning disability and autism specialised service such as Hazelwood House. Dr Sawle also recommended a hospital order pursuant to section 37 of the Mental Health Act. In his view a hybrid order would not be suitable for the reasons articulated in the other reports. On the question of a restriction order, Dr Sawle at paragraph 4.17 of his report said this: "Given the serious nature of the alleged index offence, one could suggest the making of a restriction order under section 41 of the Mental Health Act 1983 in order to protect the public from the risk of serious harm. However, he has no significant history of offending and has been fully compliant with his treatment and risk management plans whilst at Hazelwood House. I do not feel the resulting restrictions would be needed in order for [the appellant] to comply with his treatment plan. If there were concerns of discharge then the provisions of a community treatment order could be included in the discharge plan." When sentencing the appellant the judge accepted the view of all three psychiatrists that a hybrid order under section 45A of the Mental Health Act would not be appropriate in this case. He accepted that a hospital order pursuant to section 37 was the appropriate disposal. However, notwithstanding the opinions of the psychiatrists, the judge concluded that a restriction order pursuant to section 41 should be made. In so deciding he had regard to the terms of section 41. The requirement that at least one of the medical practitioners required had given oral evidence before the court had been satisfied. The judge said that he found Dr Gurusinghe's evidence about the need for security puzzling and inconsistent. However he said, whether he was right or wrong in his analysis of what the doctor meant, ultimately the decision whether to make a restriction order was for him. He was satisfied in this case that it was necessary to make such an order by reason of the nature of the offence and the risk of the appellant committing further offences if set at large. In his judgment a section 37 order alone did not provide adequate protection for the public and it was necessary therefore to make a restriction order under section 41. The legal framework Section 41(1) of the Mental Health Act 1983 provides: "Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, 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, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section and an order under this section shall be known as 'a restriction order'." Subsection (2) requires at least one of the medical practitioners whose evidence is taken into account by the court under section 37(2) of the Act to have given evidence orally before the court. In R v Birch (1990) 90 Cr. App. R 78, this court made clear that the responsibility for determining whether an offender posed a risk of serious harm was that of the court which was not bound to follow the advice of the medical witnesses. The seriousness of the offence was but one of the factors that the judge should take into account but did not of itself necessarily mean that a restriction order should be imposed. This court in R v Royse (1981) 3 Cr. App. R (S) 58 also said that the question for a restriction is a matter for the judge. Any successful appeal would need to show that the judge was either irrational or Wednesbury unreasonable. Notwithstanding that high threshold, Mr Prior submits in this case that the judge erred in imposing a restriction order upon the appellant. He submits that the evidence before the court did not support such a finding. The evidence showed that he would be managed in a low secure hospital. He would only be discharged with an appropriate package of support to live in the community and be subject to the restraining order preventing contact with his parents. He points out that the appellant's behaviour had been appropriate in hospital and when out with others in the community and he was compliant with his medication. Mr Prior accepts that the reports say on the primary risk element that if he was in a situation where he was severely humiliated he may suffer some difficulty in impulse control. Despite that, the psychiatrists were of the view that no restriction was necessary. He submits that no restriction was necessary, he was in a low secure unit, he would need oversight in the community and a community treatment order would be imposed with which he would have to comply. In those circumstances, he submits that the judge's decision to impose the section 41 order was not reasonable. He further submits that the circumstances in which the appellant was agitated to the point of significant violence will not occur again given his treatment at Hazelwood House and that he is at very low risk of re-offending. In his written submissions, Mr Prior further submitted that the judge misunderstood what Dr Gurusinghe meant by the need for the appellant to be detained in a secure environment. In any event he was not resistant to treatment, was not currently well enough to live in the community, he would not be allowed to leave if he tried to leave the hospital, there would be a community plan with appropriate safeguarding put in place should there come a time that he could live in the community and there was no suggestion that he was a general risk of violence. Discussion and conclusion The judge in this case had a great deal of medical evidence before him. There is rightly no suggestion that a section 37 hospital order should not have been imposed. It was the appropriate disposal in all the circumstances of this case. The judge had heard one of the psychiatrists give evidence at the sentencing hearing. Notwithstanding the views of the psychiatrists to the contrary, it was therefore open to him to impose a restriction order if the test was met. Whilst there was some confusion in the judge's mind about what Dr Gurusinghe meant by the word "secure", we do not accept that this impacted on the judge's reasoning in any way. As he said, whether he was right or wrong about his analysis of the doctor's evidence the decision about the need for a restriction order was ultimately a matter for him. The judge applied the correct test. He had regard to the nature of the case which was on any view extremely serious. Seemingly for no reason beyond his mental disorder this appellant had armed himself with a knife and attacked his father with it in his bedroom. His father nearly lost his life as a result. The judge rightly noted that the appellant had no previous convictions. He then went on to consider whether there was a risk of the appellant committing further offences if set at large and concluded that there was. Whilst we accept that it would have been better had the judge set out his reasons for so finding, in our view such a conclusion cannot be said to be irrational or Wednesbury unreasonable. It was one that was reasonably open to him. We do not accept Mr Prior's bold assertion that the circumstances in which the appellant was agitated to the point of significant violence will not occur again given his treatment at Hazelwood House and he is at very low risk of re-offending. It is right to say that the appellant has been compliant with the regime at Hazelwood House and has taken his medication. However, living in the community when he is eventually discharged is a wholly different matter. As the psychiatrists have said, the appellant has never had to live independently. It is not known how he will respond when he does. As Dr Sawle noted, such is bound to be stressful and he will need considerable input from social and mental health services. There has been no real explanation for the assault on his father, save that he felt humiliated and angry. Given the appellant's reaction when he felt humiliated by his father, we consider that the judge was entitled to conclude that there was a risk of serious harm to the public in the future should he feel such humiliation again. It certainly cannot be said that such a conclusion was irrational or Wednesbury unreasonable. It follows that the judge was entitled to make a restriction order in this case. It was not wrong in principle so to do and this appeal is accordingly dismissed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII