COURT OF APPEAL
London, WC2A 2LL
Friday 5th October 2001
B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE BELL
MR JUSTICE STANLEY BURNTON
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr R Smith QC & Mr J Rose appeared for K
Mr R Wright appeared for H
Mr PF Worsley QC , Mr J C Lofthouse and Miss S Beattie appeared for the Crown
AS APPROVED BY THE COURT
Crown Copyright ©
The Vice President :
"4.–(1)This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.
(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.
(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.
(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by a jury"
"4A- (1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability.
(2) The trial shall not proceed or further proceed but it shall be determined by a jury –
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence.
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
(5) A determination under subsection (2) above shall be made-
(a) Where the question of disability was determined on the arraignment of the accused, by a jury other than that which determined that question; and
(b) where that question was determined at any later time, by the jury by whom the accused was being tried."
"5(1) This section applies where-
(a) a special verdict is returned that the accused is not guilty by reason of insanity, or
(b) findings are recorded that the accused is under a disability and that he did the act or made the omission charged against him.
(2) Subject to subsection (3) below, the court shall either-
(a) make an order that the accused be admitted, in accordance with the provisions of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, to such hospital as may be specified by the Secretary of State; or
(b) where they have the power to do so by virtue of section 5 of that Act, make in respect of the accused such one of the following orders as they think most suitable in all the circumstances of the case, namely-
(i) guardianship order within the meaning of the Mental Health Act 1983;
(ii) supervision and treatment order within the meaning of Schedule 2 to the said Act of 1991; and
(iii) an order for his absolute discharge
(3) Paragraph (b) of subsection (2) above shall not apply where the offence to which the special verdict or findings relate is an offence the sentence for which is fixed by law".
"6.1 In determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
(b) to have adequate time and facilities for the preparation of his defence.
(c) to defend himself in person or through legal assistance of his own choosing;…
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
"Section 1A(1) of the Powers of Criminal courts Act 1973 shall have effect, in its application to orders for absolute discharge, as if-
(a) the reference to a person being convicted by or before a court of such an offence as is there mentioned included such references as are mentioned in subsection (2)(a) and (b) above; and
(b) the reference to the court being of opinion that it is inexpedient to inflict punishment included a reference to it thinking that an order for absolute discharge would be most suitable in all the circumstances of the case."
The references mentioned in subsection (2)(a) and (b) are:
"(a) to a special verdict being returned that the accused is not guilty by reason of insanity, or to findings being recorded that the accused is under a disability and that he did the act or made the omission charged against him; and
(b) to the Court of Appeal being, on an appeal against conviction or under section 12 of the 1968 Act, of such opinion as is mentioned in section 6(1) or 14(1) of that Act".
In other words, an order for absolute discharge does not imply either conviction or that punishment is inexpedient: it implies a finding that the accused did the act in question and that an absolute discharge is the most suitable order.
"I am aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty."
"In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental."
However, the key words in the present connection are "liable to be imposed as a punishment", a factor absent from proceedings under sections 4 and 4A.
"The fact that the matters taken into account by a Category A Review Committee constitute a criminal offence does not necessarily mean that their procedures and decisions constitute the determination of a criminal charge for the purposes of Article 6, any more than an argument between a driver and his insurance company as to the former's responsibility for a collision involves the determination of a charge of careless driving: c.f. McFeeley v UK  3 EHRR 161 and Pelle v France  50 DR 263. In the latter case the Commission held that a disciplinary sanction imposed on a prisoner for making a death threat against a warder, involving a period in a punishment cell and the risk of loss of remission, was outside the scope of Article 6."
We agree with these observations. They are in conformity with the conclusion of the Civil Division of the Court of Appeal, in R(Carroll) v SSHD  EWHC Admin 110, The Times 16th August 2001, that prison disciplinary proceedings are not criminal within Article 6.
"It follows that, in respect of a young child charged with a grave offence attracting high levels of media and public interest, it would be necessary to conduct the hearing in such a way as to reduce as far as possible his or her feelings of intimidation and inhibition."
The italics are ours. The Court found that the proceedings against T and V had not been conducted so as to reduce as far as possible their feelings of intimidation and inhibitions, and that, consequently, they had been denied a fair hearing. In contrast, as mentioned above, in the present cases it is accepted that, if the defence submissions are well founded, a fair trial of the charges is impossible.
"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lonnroth v Sweden  5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52."
We can also conveniently borrow the citations in the judgment of the Right Hon. Ian Kirkwood at 862:
"In Soering v United Kingdom  11 EHRR 439 the European Court observed as follows, at p 468, para 89: 'Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.'
In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 384 Lord Hope of Craighead stated:
'There is also the question of balance, as to the interests of the individual as against those of society. The Convention jurisprudence and that which is to be found from cases decided in other jurisdictions suggests that account may legitimately be taken, in striking the right balance, of the problems which the legislation was designed to address ... As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual: see also Sporrong and Lonnroth v Sweden  5 EHRR 35, 52, para 69.'"
See too the judgment of Lord Steyn at 840C.
THE VICE PRESIDENT: For the benefit of the shorthand writer, there are two further corrections to the judgment in its present form, paragraph 7, line 3 should read "preliminary" rather than "preparatory". Paragraph 18, the name of the case is Winter Werp not just Werp. Subject to that, for the reasons given in the judgment handed down of which Bell J, who is not able to be here today, agrees, there is no jurisdiction to entertain an appeal by M and in any event we would have refused him leave to appeal. K's application for leave to appeal is refused and H's appeal is dismissed.
MR SMITH: May I simply tell your Lordship Mr Rose and myself are here out of courtesy to your Lordship to assist in any way. The Court having refused leave, there is no further application that we can make in the circumstances.
THE VICE PRESIDENT: We thought that might be so Mr Smith although we are grateful for the formulation of the question which has reached us.
MR SMITH: It may assist Mr Wright and I pose the document in his hands, the formulation of the point lies now with him.
Mr WRIGHT: I am grateful to my learned friend, Mr Smith, for formulating the point and I adopt it. I would invite your Lordships to certify that point as being one of general public importance. I invite your Lordships to consider granting leave to appeal to their Lordships' house.
THE VICE PRESIDENT: Mr Lofthouse, you are for the Crown.
MR LOFTHOUSE: In M not in H, I better say.
MR WRIGHT: My learned friend Mr Malcolm Taylor appears for the Crown.
THE VICE PRESIDENT: Well, do you have anything to say about the certified questions?
MR LOFTHOUSE: No my Lord.
THE VICE PRESIDENT: We shall certify that question and we refuse leave. Thank you.
MR LOFTHOUSE: I have been asked by the law reporter to seek your Lordships' guidance on one matter concerning the reporting on the case of M. She is concerned that there are automatic reporting restrictions under the 1996 Act in respect of preparatory hearings. It raises a circular argument, I suppose, as to whether your Lordships held there was not one, the reporting restrictions apply. Your Lordships could in any event impose one. My learned friend, Miss Navijou, and I have spoken about the matter. I think the position is we, subject to your Lordships' view of the matter, will be content so long as initials were used. But there may be other things that my learned friend preferred not to be mentioned but in principle there is no objection to the reporting of the case in the law reports.
THE VICE PRESIDENT: Miss Navijou.
MISS NAVIJOU: I endorse what was said.
THE VICE PRESIDENT: In view of what counsel have said we shall direct that this case can be reported but so far as M is concerned, he should be referred to simply by the initial M.
MR LOFTHOUSE: The other matter, I am grateful to your Lordship in respect of the amendment on page 4. My Lords that I think came from my observation. My Lord, probably the text I sent is badly written. It was the other way round, I was inviting the Court to substitute, cross out "preliminary" in line 18 and insert "preparatory", I am sorry.
THE VICE PRESIDENT: Let us get it right even at this stage Mr Lofthouse. The two references in lines 17 and 18, on page 4, of paragraph 7, "to preparatory" or "to preliminary"?
MR LOFTHOUSE: "Preparatory".
THE VICE PRESIDENT: Then they will be.
MR LOFTHOUSE: I am sorry.