R v Rosario Rosso [2003] EWCA Crim 3242

Mental health – take and convey – trespass – forced entry

 

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, two doctors and three police officers, having made arrangements with the hotel, attended the hotel in order to carry out an assessment under s2 Mental Health Act 1983.

 

D was found in a room in the hotel which he had been permitted to use for the sole purpose of watching television and on the condition that he did not lock himself in the room. When D was informed by the mental health team that he was to be assessed for the purpose of admitting him to hospital, he became hostile, aggressive and agitated. A written assessment under s2 of the Act was duly made. The police officers were then alerted and 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. D then produced a knife and shut himself in the room. The police forced entry and sprayed D with CS gas, but D was unaffected and stabbed a police officer.

 

D was arrested for causing grievous bodily harm. At trial D contended that the police had no right to break in without a warrant, that 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 against the conviction on the ground it was unsafe as the judge had misdirected the jury. He contended that the police officers required a warrant under s135 Mental Health Act 1983 before they could lawfully detain him and take him to hospital.

 

The Court of Appeal held that it was never disputed that a valid application for D’s admission to hospital had been made by the approved social worker (ASW). That application gave the ASW or any person authorised by her sufficient authority to take and convey D to hospital in accordance with s6(1) of the Act. The effect of section 137(2) of the Act was that the police officers had all the powers, authorities, protection and privileges which a constable has within the area for which they act as police officers. Those powers did not, however, include the power to use force to enter premises to remove a person simply because he was believed to be suffering from a mental disorder or was a person liable to be taken into custody under the Act. A duly completed application for an assessment under the Act did not without more provide authority for the applicant, or the police if authorised by the applicant, to effect a forced entry into the premises of the person sought to be conveyed to hospital. Such an act would, on the face of it, be a trespass and unlawful. A warrant, under s135 MHA 1983,  was the means whereby the act that was trespass would become lawful.

 

In this case, however, 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. 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. The police were therefore entitled to take and convey D to hospital under s6 of the Act and could use reasonable force to do so. The judge was right to direct the jury as he did.

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