Risk of serious harm or a serious risk of harm? A trap for judges

Abstract A 21-year-old man attacked a fellow patient in a hospital ward and was convicted of inflicting grievous bodily harm. Before sentencing, oral evidence was given by a consultant psychiatrist to the effect that the risk of his causing serious harm to the public was low. Nevertheless a restriction order was imposed. He appealed successfully against this imposition. The appeal was upheld on the basis that there was insufficient evidence that he would cause serious harm to the public and that the trial judge, in construing s.41 of the Mental Health Act 1983, had fallen into the trap of applying the adjective ‘serious’ to the noun ‘risk’ rather than to ‘harm’. This case is considered against the background of the Butler Committee recommendations, which led to the wording of s.41, and in the light of the leading case of Birch, which drew attention to this particular trap.