Practice and Procedure


PUBLISHED November 4, 2003

Where police officers forced entry in order to take a defendant to hospital following a valid assessment under s.2 Mental Health Act 1983, they did not need a warrant under s.135, as on the facts they were not trespassing, accordingly the judge had correctly directed the jury and the conviction was safe.Appeal with leave of the full court, against conviction for causing grievous bodily harm with intent and renewed application for leave to appeal sentence of a Hospital Order under s.37 Mental Health Act 1983 and a Restriction Order without limit of time under s.41 of the Act, imposed at Nottingham Crown Court on 18 January 2002 before HH Judge Metcalf. The defendant ('D') had a history of mental health problems dating from 1985 and had attended hospital on both a voluntary and compulsory basis, where he was diagnosed with bi-polar disorder. D stayed in a hotel in Nottingham and in January 2001 a social worker and two doctors attended the hotel, along with two police officers, in order to carry out an assessment under s.2 of the Act. Arrangements had been made with the hotel. The television in D's room did not work and the hotel permitted D to use another room for the sole purpose of watching television. A condition was that he could not use any other facilities or lock himself in that room. The mental health team went to the room and a doctor told D he was going to asses him for the purpose of admitting him to hospital. D became hostile and agitated and as a result there was enough material to make the written assessment under s.2 of the Act. The police officers were informed and they came to the room. D was told he had been sectioned and was going to be taken to hospital and force would be used if necessary. D refused to go with the police and told them they could not use force without a warrant. He then produced a knife and shut himself in the room. The police forced entry and sprayed D with CS gas, D was not affected and stabbed a police officer. At trial D contended that the police had no right to break in without a warrant, he had not wanted to hurt anyone and denied that he pushed the knife but was just waving his arms around. When summing up the judge directed the jury that if they accepted the evidence of the doctors and social worker, the police were entitled to remove D and could use reasonable force to do so. D appealed conviction on the ground it was unsafe as the judge had misdirected the jury. The police officers had required a warrant under s.135 of the Act before they could lawfully detain D and take him to hospital.HELD: (1) It was never disputed that a valid assessment, made by an approved social worker and a doctor gave sufficient authority for the applicant to take and convey D to a hospital under s.6(1) of the Act. The police officers had been authorised by the social worker to take D, however, the application did not provide authority to effect forced entry to convey, such action would be trespass unless a warrant was granted under s.135 of the Act. A warrant was the means whereby the act that was trespass would become lawful. (2) There was no factual basis to contend that the police were trespassing. The police were entitled to enter the hotel itself and the only act of forcible entry was when the police broke down the door. However, D had no right of exclusive occupancy and no right to exclude others from the room he was in. His right was pursuant to a licence granted by the hotel for one purpose, watching television. He therefore had no right to deny anyone access to the room, D could not bring a civil claim in trespass and the police were accordingly entitled to be in the room without a warrant. (3) The police were entitled to take and convey D to hospital under s.6 of the Act and could use reasonable force to do so. The judge was right to direct the jury as he did.Appeal dismissed, renewed application refused.