England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
AND
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 November 2001

Mr Justice Richards:

1. This is the judgment of the court. The case concerns the statutory procedures relating to persons who have been charged with murder but are found to be unfit to be tried. In R v. Moore, Kerr and Haroon [2001] EWCA Crim 2024, the court considered the compatibility of the relevant procedures with the European Convention on Human Rights. The present case raises further issues concerning the procedures and their compatibility with the Convention.
2. The case arises out of the death of the appellant's boyfriend, John Mills, who lived with the appellant at her flat. Police were called to the flat on the evening of 26 May 2000 and found Mr Mills lying in a pool of blood. He had received injuries from which he died later that evening. The fatal injury was a stab wound to the left side of the neck, passing across the full width of the neck and exiting on the right side. The carotid artery and jugular vein had been transected. The haemorrhaging and shock resulting from the wound were the cause of death. A blow of mild to moderate force with a knife could have inflicted such a wound. In addition, there were four more superficial stab wounds on the rear of the torso, consistent with a flurry of blows one after the other and likely to have been inflicted after the main and fatal wound to the neck. There were no defence wounds.
3. In her initial account to police the appellant stated that Mr Mills had been stabbed by intruders. Forensic examination disproved her account. In the course of later interviews, she admitted that she had stabbed him. He had wanted to move away from the flat, she did not want him to move and they had quarrelled. He hit her twice and she lost her temper, picked up a knife and stabbed him in the neck. She also eventually admitted stabbing him in the back.
4. The appellant was charged with murder. On 27 March 2001 in the Crown Court at Newcastle-upon-Tyne, a jury found her to be under a disability so as to be unfit to be tried, pursuant to s.4(5) of the Criminal Procedure (Insanity)Act 1964, as amended. The jury heard evidence from three consultant psychiatrists. For the defence, Dr Elizabeth Milne concluded that the appellant had limited intellectual ability, classified as mild or moderate learning disability which, with the previous history of aggressive behaviour and lack of social and daily living skills observed during her admission to hospital, constituted mental impairment within the meaning of the Mental Health Act 1983. For the prosecution, Dr Susan Johnston concluded that the combination of deficits displayed by the appellant would be sufficient to fulfil the criteria of mental impairment as defined in the 1983 Act, and Dr Nicholas Land concluded that she had a significant learning disability. All the experts agreed that she was unfit to be tried, by reference to all the relevant criteria (understanding of the nature of the plea, understanding of the offence with which she was charged, understanding of court procedure, and ability to follow evidence in court and instruct her legal team). Both prosecution and defence invited the jury to conclude that the appellant was not fit to be tried on the indictment.
5. On 3 April 2001 a second jury at the same court found that the appellant had committed the act charged against her as the offence, namely the stabbing of Mr Mills. That finding was made pursuant to s.4A of the 1964 Act. The judge, the Recorder of Newcastle, thereupon made the order prescribed by s.5(2) of the 1964 Act and Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. The order was that the appellant be admitted to such hospital as might be specified by the Secretary of State, together with a direction equivalent in effect to a restriction order under s.41 of the Mental Health Act 1983 without limitation of time.
6. Before the second jury was empanelled, counsel appointed by the court to act on behalf of the appellant submitted that in relation to the question whether the appellant did the act charged against her as the offence of murder, they should be allowed to put before the jury the defences of lack of intent and provocation. To the extent that that course was precluded by the decision of the House of Lords in R v. Antoine [2001] 1 AC 340, the decision pre-dated implementation of the Human Rights Act 1998 and was contrary to the Convention and should not be followed. If the jury was limited to considering whether the appellant did the act which constituted the actus reus of murder, without considering the question of manslaughter, and the judge had no discretion as to the order to be made following a finding that the appellant did the act, then the statutory provisions were incompatible with Articles 5(1)(e) and 6(1) of the Convention. The judge rejected those submissions and the matter was put before the jury on the basis that its task was simply to decide whether the appellant did the act of stabbing.
7. Following the jury's finding that the appellant did the act of stabbing, the judge certified that the case was fit for appeal on the ground that "where, on an indictment alleging murder, the accused person has been found to be under a disability so as to be unfit to plead, the 'defences' of (a) lack of intent and/or (b) provocation should be available to the accused person and should be left to the jury where there is evidence to support them". Pursuant to the certificate the appellant lodged an appeal which, as amended by leave granted by us, is an appeal against the jury's finding that she did the act charged against her.
8. In relation to his order under s.5 of the 1964 Act the judge stated a case for the opinion of the High Court. The question is in these terms:

"The question for the opinion of the High Court is whether the statutory provisions of Section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by Section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991), Schedule 1 to the 1991 Act, and Section 41 of the Mental Health Act 1983, whereby a Judge of the Crown Court is obliged to make a mandatory order containing restrictions on the liberty of the accused person where the accused person has been found to have committed an act which constituted the actus reus of murder and where that person was indicted for murder without there being any determination by an independent and impartial tribunal as to whether the appropriate count was one of murder or manslaughter, are incompatible with the human rights of the accused person under Articles 5(1)(e) and 6(1) of the European Convention on Human Rights and so are contrary to the provisions of Section 6 of the Human Rights Act 1998."

9. The two appeals raise overlapping issues and have been listed together for hearing before us, constituted both as the Court of Appeal (Criminal Division) and as a Divisional Court.
10. Although a question as to jurisdiction was raised in the skeleton arguments, it was common ground in the oral submissions before us that the court has jurisdiction to entertain both appeals. An appeal lies under s.15 of the Criminal Appeal Act 1968 against the jury's finding that the appellant did the act charged against her: see e.g. R v. Antoine. The grant of a certificate by the trial judge satisfies the conditions laid down in s.15(2). An appeal by way of case stated lies to the Divisional Court against the judge's order under s.5 of the 1964 Act. An appeal is not barred by s.28(2) of the Supreme Court Act 1981, since the trial on indictment terminated once the jury had held under s.4(5) of the 1964 Act that the appellant was under a disability so as to be unfit to be tried. Hearings under s.4A of the 1964 Act are therefore not trials on indictment (see R v. Moore, Kerr and Haroon at paragraph 19) and neither the findings made in those hearings nor the resulting order under s.5 are matters relating to trial on indictment within the meaning of s.28(2) of the 1981 Act. (R v. Snaresbrook Crown Court, ex parte Demaar, judgment of the Divisional Court dated 16 June 2000, relates to an order made after a special verdict of not guilty by virtue of insanity and is distinguishable.)

The Criminal Procedure (Insanity) Act 1964

11. The relevant provisions of the 1964 Act are these:

"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 ….

(6) A jury shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved…

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(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) a guardianship order within the meaning of the Mental Health Act 1983;

(ii) a 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."

Schedule 1 to the 1991 Act provides in material part:

"2(1) A person who is admitted to a hospital in pursuance of an admission order made otherwise than under section 14A of the 1968 Act shall be treated for the purposes of the 1983 Act-

(a) as if he had been so admitted in pursuance of a hospital order within the meaning of that Act made on the date of the admission order; and

(b) if the court so directs, as if an order restricting his discharge had been made under section 41 of that Act, either without limitation of time or during such period as may be specified in the direction.

(2) Where the offence to which the special verdict, findings or appeal relates is an offence the sentence for which is fixed by law, the court shall give a direction under sub-paragraph (1)(b) above without specifying any period."

12. The effect of those provisions is that a person admitted to hospital pursuant to an admission order is treated as if he had been admitted pursuant to a hospital order within the meaning of the 1983 Act and subject to the restrictions set out in s.41 of the 1983 Act for an indefinite period. The result is that the patient can be discharged only by the Secretary of State, by the responsible medical officer with the consent of the Secretary of State, or by the Mental Health Review Tribunal ("MHRT"). He can apply immediately to the MHRT for his discharge: s.69(2)(a) of the 1983 Act. If he does not do so within the specified period of 6 months, the Secretary of State must refer his case to the MHRT: s.71(5) of the 1983 Act.

The decision in R v. Antoine

13. In R v. Antoine there had been a finding by the jury under s.4(5) of the 1964 Act that the defendant was under a disability so as to be unfit to stand trial on a charge of murder and manslaughter. The issue then arose whether the defence of diminished responsibility under s.2 of the Homicide Act 1957 was available to him for the purpose of the jury's determination under s.4A(2). The judge ruled that the defence was not available and the jury then found that the defendant had done the act of murder charged against him. That ruling was upheld on appeal to the Court of Appeal and on further appeal to the House of Lords.
14. In the Court of Appeal, Lord Bingham CJ referred to the balance of competing considerations that underlies the statutory provisions:

"Throughout history, seriously anti-social acts, particularly acts of violence, have been committed by people whose mental capacity was such that they were not responsible, or not fully responsible, for their acts, or could not fairly be required to stand trial. Such cases pose an inescapable public, moral and human rights dilemma: for while such people may present a continuing danger from which the public deserve to be protected, it would be offensive to visit the full rigour of the law on those not mentally responsible, or not able to defend themselves, as an ordinary person of sound mind would be taken to be, and who may (despite their mental incapacity) have done nothing wrong or dangerous" (page 344D-E).

15. The leading speech in the House of Lords was given by Lord Hutton. In holding that the defendant could not raise the defence of diminished responsibility on a hearing under s.4A(2), he relied on three principal considerations. First, the provisions of s.2 of the 1957 Act only apply where "but for this section [a person] would be liable ... to be convicted of murder", whereas once it has been determined by the jury that the defendant is under a disability the trial terminates and the defendant is no longer liable in the context of the s.4A procedure to be convicted of murder, so that the defence under s.2 of the 1957 Act does not arise (367G-H). Secondly, if the arguments for the appellant were correct, it would mean that where a defendant, having killed another person, was charged on the sole count on the indictment with murder, and a jury under s.4A(2) found the accused, although having done the act of killing, had not done the act of murder because he was suffering from diminished responsibility, s.4A(4) would require the jury to return a verdict of acquittal and the defendant would be set at liberty – a result which Parliament could not have intended (367A-C). Thirdly, reliance was placed on a further anomaly identified by Lord Bingham CJ in the Court of Appeal. If a defendant were allowed to establish a defence of diminished responsibility in the context of s.4A in a case charging both murder and manslaughter, then the jury would be required to acquit him of the murder charge pursuant to s.4A(4) but would find under s.4A(3) that he did the act charged in the manslaughter count. He would then be liable to a hospital order under s.5(2). If, however, he recovered so as to be fit to be tried, the power to remit him for trial under paragraph 4 of Schedule 1 to the 1991 Act would be effectively frustrated. He could not be tried for murder because the jury had previously acquitted him in respect of that count and he could not be convicted of manslaughter because he would not be a person who but for the section "would be liable…. to be convicted of murder" under s.2 of the 1957 Act.
16. Lord Hutton went on to consider the wider question whether for the purposes of s.4A(2) the jury must be satisfied of more than the actus reus of the offence. He preferred the reasoning in Attorney General's Reference (No 3 of 1998) [2000] QB 401 to that in R v. Egan [1998] 1 Cr App R 121. He concluded that under s.4A(2) the prosecution does not need to establish more than the actus reus. In the course of stating his detailed reasons in support of that conclusion he made certain general observations on s.4A:

"The purpose of s.4A, in my opinion, is to strike a fair balance between the need to protect the defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or has made an omission) which would constitute a crime if done (or made) with the requisite mens rea" (375G-376A).

17. He noted that a number of learned authors had commented that it is difficult in some cases to distinguish precisely between the actus reus and mens rea and that the actus reus can include a mental element. He referred, however, to the observations of Lord Simon in DPP for Northern Ireland v. Lynch [1975] AC 653, 690:

"Both terms have, however, justified themselves by their usefulness; and I shall myself employ them in their traditional senses – namely, actus reus to mean such conduct as constitutes a crime if the mental element involved in the definition of the crime is also present (or, more shortly, conduct prohibited by law); and mens rea to mean such mental element, over and above volition, as is involved in the definition of the crime."

18. Lord Hutton went on to give guidance on a further issue raised in counsel's submissions, namely whether defences of accident or mistake or self-defence could be raised under s.4A(2) although they almost invariably involve some consideration of the mental state of the defendant and on the s.4A(2) determination the defendant's state of mind was not to be considered. He stated:

"How then is this difficulty to be resolved? I would hold that it should be resolved in this way. If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the "act" unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence" (376H).

19. After giving examples of what he had in mind, Lord Hutton ended by saying:

"The defence of provocation to a charge of murder is only relevant when the jury are satisfied that the defendant had the requisite mens rea for murder, and I wish to reserve my opinion on the question of whether, on a determination under s.4A(2), it would be open to the defence to call witnesses to raise the issue of provocation" (377D).

The Convention

20. Article 5 of the Convention provides in material part:

"(1) Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

….

(e) the lawful detention … of persons of unsound mind….

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

21. Article 6(1) provides in material part:

"In the 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 …."

22. The leading authority on the application of Article 5 to persons of unsound mind is Winterwerp v. The Netherlands (1979) 2 EHRR 387. In that case the European Court of Human Rights stated that the purpose of Article 5(1) is "to ensure that no one should be dispossessed of his liberty in an arbitrary fashion" (paragraph 37). The lawfulness of a detention for the purposes of Article 5(1)(e) presupposes conformity both with the domestic law and also with the purpose of the restrictions permitted by Article 5(1)(e). The court went on:

"The Commission likewise stresses that there must be no element of arbitrariness; the conclusion it draws is that no one can be confined as 'a person of unsound mind' in the absence of medical evidence establishing that his mental state is such as to justify his compulsory hospitalisation …. The applicant and the Government both expressed similar opinions.

The Court fully agrees with this line of reasoning. In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder" (paragraph 39).

23. As regards the requirement that any deprivation of liberty must be "in accordance with a procedure prescribed by law", the Court held that that essentially referred back to domestic law. However, the domestic law must itself be in conformity with the Convention. The notion underlying the term was one of "fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary" (paragraph 45). The Court held that there had been no violation of Article 5(1)(e) in the particular case.
24. The Court went on to consider Article 5(4). In the particular case the applicant's initial detention was the result of administrative action, but his subsequent confinement was based on renewal orders issued by the courts. The Court did not question the lawfulness of the initial detention but stressed that Article 5(4) obliges the contracting states to make available to the person detained a right of recourse to a court. The intervention of a court will satisfy Article 5(4) only on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question (paragraph 57). As to those guarantees:

"The judicial proceedings referred to in Article 5(4) need not, it is true, always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the 'fundamental guarantees of procedure applied in matters of deprivation of liberty'. Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves" (paragraph 60).

25. On the facts the Court found that the guarantees demanded by Article 5(4) were lacking and that there was a violation of the article.
26. The Court also considered the application of Article 6(1), on the basis that the applicant's detention had automatically divested him of the capacity to administer his property and that for that reason there had been a "determination of his civil rights and obligations". The Court referred to the procedural flaws that had resulted in the adverse finding under Article 5(4) and to the fact that the procedure adopted had been concerned solely with the applicant's deprivation of liberty and had not encompassed the question of his civil capacity. For those reasons it was held that he had not had a fair hearing within the meaning of Article 6(1):

"While, as has been indicated above in connection with Article 5(4) …, mental illness may render legitimate certain limitations upon the exercise of the 'rights to a court', it cannot warrant the total absence of that right as embodied in Article 6(1)" (paragraph 75).

27. Johnson v. United Kingdom (1997) 27 EHRR 296 was concerned with the lawfulness of the applicant's continued detention in hospital. The Court summarised as follows the position established by earlier authorities:

"The Court stresses, however, that the lawfulness of the applicant's continued detention under domestic law is not in itself decisive. It must also be established that his detention after 15 June 1989 was in conformity with the purpose of Article 5(1) of the Convention, which is to prevent persons being deprived of their liberty in an arbitrary fashion and with the aim of the restriction contained in sub-paragraph (e). In this latter respect the Court recalls that, according to its established case law, an individual cannot be considered to be of 'unsound mind' and deprived of his liberty unless the following three minimum conditions are satisfied: first, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, and of sole relevance to the case at issue, the validity of continued confinement depends upon the persistence of such a disorder" (paragraph 60).

28. In R v. Moore, Kerr and Haroon (above) it was held that there is no incompatibility between the provision of s.4 and s.4A of the 1964 Act and a defendant's Convention rights (see paragraphs 18-34 of the judgment). Article 5 expressly contemplates special provisions in relation to the deprivation of liberty of those of unsound mind. The criminal charge provisions of Article 6 do not apply to the procedures, since they cannot result in a conviction and the orders available to the court do not include any punishment. If, contrary to that view, Article 6 does apply, then the proceedings comply with its requirements.

Submissions

29. Mr Cosgrove QC for the appellant submits that the effect of the statutory regime is that the prosecution, which is not impartial and independent, is able to create a situation in which a judge has no discretion as to disposal but is required to make an order under s.5 of the 1964 Act. The prosecution decides whether a given act is to be charged as murder or manslaughter. Where it is charged as murder, the defendant is found unfit to plead, and there is then a finding under s.4A that the defendant did the act charged, the judge has no discretion in the matter. The problem lies in the absence of any mechanism for determining whether the defendant would have been found guilty of murder or of manslaughter had there been a trial. If the relevant issues could be determined by the jury under s.4A or if the judge had a discretion following the finding of the jury under s.4A, there would be an intervention by an independent and impartial tribunal. But that is not the position on the law as interpreted in R v. Antoine.
30. The appellant places reliance on Articles 5(1)(e) and 6(1) of the Convention. Attention is focused in particular on the minimum conditions specified in paragraph 60 of the Court's judgment in Johnson v. United Kingdom. Detention is lawful only "if it can be reliably shown that the patient suffers from a mental disorder sufficiently serious to warrant detention" (see also R (H) v. London North and East Region Mental Health Review Tribunal [2001] 3 WLR 512 at 520E, paragraph 29). The point is said to be of more than academic interest in the appellant's case. In a further report prepared recently by Dr Milne, the consultant psychiatrist instructed by the defence, she states that a guardianship order could have been considered in this case had it not been precluded by statute. Another possibility, it is said, would have been admission to hospital without the equivalent of a restriction order.
31. Mr Cosgrove submits that the problem arises out of the combined effect of s.4A as interpreted in R v. Antoine and the mandatory disposal under s.5. If it were possible to advance the defences of lack of intent and provocation within the context of s.4A, the problem would be removed. Failing that, there is no scope for interpretation of the statutory provisions so as to be compatible with the Convention and a declaration of incompatibility is sought.
32. In fact Mr Cosgrove submits that provocation can be advanced under s.4A consistently with the decision in R v. Antoine (though this argument was not addressed to the judge below). The point may have been left open in R v. Antoine because of a fundamental difference between s.2 of the Homicide Act 1957 (diminished responsibility) and s.3 (provocation). Section 3 provides that where on a charge of murder there is evidence on which the jury can find that the person charged was provoked to lose his self-control, "the question of whether the provocation was enough to make a reasonable man do as he did" shall be left to be determined by the jury. Thus the section refers to the act done by the defendant rather than to the defendant's intent - to the actus reus, not mens rea. Although juries are directed to consider provocation only if they are otherwise satisfied as to the ingredients of murder, that is a practical matter and should not be allowed to obscure the fact that provocation amounts to a defence to murder (reducing it to manslaughter). The House of Lords in R v. Antoine recognised that one cannot draw a clear line between the actus reus and mens rea. Provocation straddles both but goes more to actus reus than to mens rea. In DPP for Northern Ireland v. Lynch (above), Lord Simon referred to mens rea as meaning "such mental element, over and above volition, as is involved in the definition of the crime". "Volition" is defined as "exercise of the will; power of willing". Given that a critical element of provocation is a loss of self-control, which implies a lack in the exercise of the will, it can be seen to be a defence going to the actus reus as well as to mens rea; and it goes more to the former than to the latter. It is therefore a defence that should be available under s.4A on the basis of the reasoning in R v. Antoine. The appellant was denied the opportunity to put that defence, for which there was supporting evidence. The finding of the jury was therefore unsafe.
33. If R v. Antoine precludes the raising of the defence of provocation under s.4A, then the appellant relies on the Convention arguments summarised above. In any event it is accepted that R v. Antoine precludes the raising of a defence of lack of intent under s.4A and there too the Convention arguments are relied upon.
34. For the prosecution, Mr Batty QC takes as his starting point the passage in the judgment of Lord Bingham in R v. Antoine quoted above. He submits that the framework established under the 1964 Act provides a person such as the appellant with as many protections as the law can afford. The charge is selected by the CPS, applying the criteria laid down in the Code for Crown Prosecutors, paragraph 7.1 of which states that they should select charges which reflect the seriousness of the offending, give the court adequate sentencing powers and enable the case to be prosecuted in a clear and simple way. A jury is empanelled to decide on the question of fitness to plead. Another jury is empanelled to decide whether the person has done the act charged as the offence. The provisions allow for the possibility of the issues being postponed until the end of the prosecution case, to enable the defence to probe the prosecution's case and establish if there is a case to answer. Nothing more could reasonably be done. No alternative system has been put forward that would better protect the appellant and her interests.
35. Mr Batty submits that there is no contravention of the Convention. Article 5 expressly contemplates special provisions in relation to those of unsound mind and the deprivation of liberty here was in accordance with a procedure prescribed by law. Article 6(1) does not apply since these were not criminal proceedings and the order made was not a sentence but a disposal: see R v Moore, Kerr and Haroon.
36. It is further submitted that the defences that were sought to be put before the jury under s.4A would be wholly inappropriate in the context of that fact-finding exercise by the jury. Where a person has already been found to be unfit to stand trial, there are good reasons of policy why that person's state of mind should not be examined. Further, provocation only falls to be considered when the intent necessary for murder has been proved, and if intent is not to be considered then perforce provocation should not be considered.
37. The main thrust of the submissions advanced by Mr Eadie on behalf of the Secretary of State is directed to the compliance of the statutory provisions, including s.4A as interpreted in R v. Antoine, with the Convention. At the outset it is noted that the issue of how appropriately to deal with cases in which a person is unfit to face trial is controversial and difficult, as recognised by Lord Bingham in R v. Antoine. A balance has to be struck between the need to protect the community and the need to ensure that those under a mental disability are fairly and properly dealt with. That can equally be expressed as involving the striking of a balance, recognised as inherent in the overall scheme of the Convention, between the general interests of the community and the need to protect the fundamental human rights of the individual. In relation to difficult and controversial decisions of this kind, it is appropriate "to give weight to decisions of a representative legislature and a democratic government" (per Lord Bingham in Brown v. Stott [2001] 2 WLR 817 at 834-5).
38. Mr Eadie submits that there is no right in a person charged with a criminal offence to have a say in the form of criminal charges which may be made against him. Article 6 is inapplicable to this aspect. As to the subsequent procedural stages, the court in Winterwerp recognised that detention on Article 5(1)(e) grounds could be attended by something less than full Article 6 safeguards both in relation to the initial detention and in relation to continuing detention. The requirements of Article 5 as to procedure are those implicit in the concept of "lawful" and "a procedure prescribed by law" and those contained in Article 5(4). It is submitted that the statutory scheme is in no sense "arbitrary" and that it does not result in the "arbitrary" detention of persons found to be unfit to plead and to have done the act charged as murder.
39. Particular reliance is placed on the following considerations: (1) The need to protect the public is "particularly important where the act done has been one which caused death to another person and there is a risk that the defendant may carry out a similar act in the future" (see per Lord Hutton in R v. Antoine at 375H). (2) The fact that Parliament has singled out a particular type of case, in which it was appropriate to charge the most serious offence, for special, mandatory disposal is a decision well within the bounds of reasonable decision-making by the legislature in a difficult and controversial area. (3) The mandatory disposal will, according to the statutory scheme, only follow a decision made in accordance with the Code for Crown Prosecutors that murder is an appropriate charge and two sets of public proceedings before an independent and impartial court. (4) It is not necessary, for a finding of arbitrariness to be avoided, that there should have been a full trial of the issue whether (assuming no unfitness) the person would have had available one or more defences to the charge of murder. The case against having such a trial in the case of a person found to be incapable of properly understanding and participating in the process is powerful and obvious. (5) Article 5(1)(e) would permit detention under this head if there were medical evidence to support it, even in a case in which the initial decision to detain was purely administrative. (6) Under Article 5(1)(e) arbitrariness will only be established if there is no medical and/or other evidence to justify the detention. In this case there was clear evidence of mental impairment, a condition recognised in s.1(2) of the 1983 Act. The appellant was "of unsound mind" within Article 5(1)(e) at the time of her detention and that unsoundness was of a type justifying detention. (7) The detention on this basis lasts under the statutory scheme only for as long as is appropriate and required, given the right to apply to the MHRT for discharge and the other procedural provisions concerning the role of the MHRT.
40. It is further submitted that the fact that the CPS decide at an early stage what charges are appropriately to be brought cannot render detention pursuant to the statutory procedures arbitrary. Arbitrariness is avoided by the process as a whole. The charge is brought on the basis of the evidence and to reflect the apparent seriousness of the offending. Article 5 does not require a court to be involved in deciding on or reviewing the appropriateness of the charge itself. There is no suggestion on the facts of this case that murder was anything other than appropriately charged. In any event the same legal consequences would follow in a case, such as R v. Antoine itself, in which both murder and manslaughter were charged on the same indictment.
41. Finally Mr Eadie observes that if the appellant's case is accepted, then a declaration of incompatibility would appear to be the only option. By s.4(6) of the Human Rights Act 1998, however, such a declaration does not affect the validity of the statutory provisions and therefore could not cause her appeals to succeed.

Conclusions

42. The first question to be considered is whether it was open to the appellant, on the law as laid down in R v. Antoine, to raise either of the defences upon which she wished to rely for the purposes of the determination by the jury under s.4A(2) of the 1964 Act. As to that, it was clearly not open to her to contend that she lacked the intent requisite for murder. That falls squarely within the territory of mens rea which, as the House of Lords held, is not a matter for the jury to consider under s.4A(2). The defence of provocation, however, requires fuller examination since the point was expressly left open in Antoine.
43. In relation to offences other than murder, provocation is a mitigating circumstance to be taken into account in sentencing. In relation to murder alone it is regarded as a sufficient extenuating feature to cause the offence to be reduced from murder to manslaughter. But its application presupposes that all the other elements of murder are otherwise present: if they are not, the defendant is entitled to be acquitted of murder. As Lord Hutton stated in R v. Antoine, "[t]he defence of provocation to a charge of murder is only relevant when the jury are satisfied that the defendant had the requisite mens rea for murder" (377D); see also Lee Chun-Chueng v. The Queen [1963] AC 220, 228, where it was held that the defence may arise where the defendant had the intent to kill or to cause grievous bodily harm but such intent arose from a sudden loss of self-control by reason of provocation. Thus, the requirement to direct a jury that before considering provocation they should be sure that all the other elements of murder, including the requisite intent, have been proved goes beyond mere practical convenience. It reflects the nature of the defence of provocation itself. It follows that the defence cannot sensibly be considered in the context of s.4A, where the jury cannot consider the question of intent and cannot therefore reach a conclusion on whether all the other elements of murder are made out.
44. Moreover the defence of provocation is intimately bound up with the defendant's state of mind. Any consideration of provocation inevitably requires examination of the defendant's state of mind, in determining whether there has been a sudden and temporary loss of self-control and whether that loss of self-control was caused by the conduct of the deceased. In the course of his submissions, Mr Cosgrove pointed out that a defendant may react to provocation so quickly that he does not even form the intent necessary for murder. That submission serves to underline the difficulty of treating provocation in an altogether different way from intent for the purposes of s.4A. It was pointed out in R v. Antoine that, where a person is unfit to be tried in the normal way because of his mental state, it would be unrealistic and contradictory that in carrying out the determination under s.4A(2) the jury should have to consider what intention that person had in mind at the time of the alleged offence, and that by using the word "act" in the statutory provision Parliament had made it clear that the jury was not to consider the mental ingredients of the offence (375B-C). In our judgment similar considerations apply to provocation. It would be unrealistic and contradictory, in relation to a person unfit to be tried, that a jury should have to consider what effect the conduct of the deceased had on the mind of that person. Parliament cannot have intended that question to be included within the determination of whether the person "did the act" charged.
45. The distinction applied in R v. Antoine between actus reus and mens rea is not clear-cut, but in our judgment provocation falls clearly on the mens rea side of the dividing line. The distinction was perhaps further clouded in R v. Antoine by an acceptance that certain defences, namely accident, mistake and self-defence, could be considered under s.4A if there was objective evidence which raised them, notwithstanding that such defences almost invariably involve some consideration of the mental state of the defendant. We do not think that what was said in that connection can be applied to the defence of provocation. The defences that it was held could be raised all related to what their Lordships regarded as the actus reus of murder. By contrast, it is clear that their Lordships did not consider it open to the jury to consider issues of mens rea under s.4A(2) whatever the circumstances; and within that were included the issues of lack of specific intent and diminished responsibility. For the reasons already given, the same must apply to the defence of provocation.
46. Finally, although the first of the considerations upon which Lord Hutton relied in R v. Antoine as a ground for holding that diminished responsibility could not be advanced in the context of s.4A of the 1964 Act was specific to the language of s.2 of the 1957 Act, which has no direct parallel in s.3 of the 1957 Act in respect of provocation, other aspects of his reasoning in relation to diminished responsibility, based on the anomalies that would result if the appellant's case were correct, can be applied equally to provocation. In our judgment they provide additional reasons for rejecting the appellant's submissions.
47. Accordingly the judge was in our judgment correct to rule that lack of intent and provocation could not be raised on behalf of the appellant at the s.4A hearing in this case.
48. We move to consider whether the statutory procedures are compatible with the Convention in circumstances where, as we have held, it is not open to a defendant to raise the defences of lack of intent and provocation under s.4A and, in the event of a finding by the jury that the defendant did the act charged as murder, there is a mandatory requirement under s.5 to make an admission order with a direction equivalent to a restriction order.
49. At the forefront of the case for the appellant is a complaint that the admission order made in this case was predetermined by the decision of the prosecution to charge murder and that, in view of the limited role accorded to the jury under s.4A and the lack of discretion afforded to the judge under s.5, there was no sufficient involvement by an independent and impartial tribunal. The language of that submission draws heavily on Article 6(1). In our judgment, however, Article 6(1) cannot assist the appellant. We accept Mr Eadie's submission that it does not apply to the bringing of the charge itself. A person has no right to have a say in the form of charge brought against him. In any event there can be no possible objection to the role of the CPS in deciding what charge or charges to bring, and in the present case it is common ground that the CPS complied with the criteria laid down in the Code for Crown Prosecutors in bringing a charge of murder. That was an entirely appropriate charge in the circumstances. As to the subsequent proceedings under ss.4, 4A and 5, it was held in R v. Moore, Kerr and Haroon that they do not involve the determination of a criminal charge within the meaning of Article 6(1) and that in any event they comply with the requirements of that provision. There is no special feature of the present case that might bring Article 6 into play in some other way. For example, in Winterwerp it was held that the decision to detain the applicant had constituted a determination of civil rights and obligations because on the facts it deprived him of his capacity to administer his property (a civil right); but no issue of that kind has been raised in the present case.
50. In our judgment it is under Article 5 rather than under Article 6 that the issues raised fall to be analysed. Article 5 contains provisions dealing specifically with the detention of persons of unsound mind. The decisions of the European Court of Human Rights, notably in Winterwerp and Johnson, provide detailed guidance on their application.
51. Subject to one important point of concern, we take the view that the statutory procedures meet the test laid down in those cases. Initial detention is the result of a series of steps clearly defined in national law, from the initial charging decision to the determinations by two separate juries and the order made by the judge. Subject to the concern expressed below, it is not unreasonable for Parliament to have decided to lay down a mandatory requirement of admission to hospital for a person who has been charged with murder, has been found to have done the act charge, but is under a disability so as to be unfit to be tried; and detention in those circumstances is not to be regarded as "arbitrary" for the purposes of Article 5(1)(e). The right to make immediate application to the MHRT and the other protections operating following admission to hospital ensure compliance with Article 5(4).
52. The point of concern is whether the procedures give proper effect to the second of the conditions laid down for detention under Article 5(1)(e). To adopt the formulation in R (H) v. London North and East Mental Health Review Tribunal, "the test is whether it can be reliably shown that the [person] suffers from a mental disorder sufficiently serious to warrant detention". The procedures under the 1964 Act are not directed specifically to that question. The issue under section 4 is whether the defendant is fit to be tried, which involves consideration of whether the defendant has sufficient intellect to instruct his legal team, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence. Those criteria do not correspond directly to the criteria for a mental disorder sufficiently serious to warrant detention, and it may be possible for a person to be found unfit to be tried without his suffering from a mental disorder sufficiently serious to warrant detention. Yet once a person facing a charge of murder has been found to be unfit to be tried, there is no further consideration of his mental condition under the statutory procedures prior to admission to hospital. If the jury find under s.4A(2) that he did the act charged, it is mandatory for the judge to make an admission order under s.5. The judge cannot consider whether such an order is justified on the medical evidence. Thus no-one is required specifically to address, prior to the person's detention, the question whether he suffers from a mental disorder sufficiently serious to warrant detention. This feature of the procedure does raise the question whether detention is "arbitrary" in the sense explained by the European Court of Human Rights in Winterwerp and Johnson.
53. It seems to us that the question is one of some difficulty. The answer to it may lie, but does not necessarily do so, in Mr Eadie's submission that this is a difficult and complex area where Parliament has carried out the requisite balancing exercise and has concluded that, where it has been found by a jury that a person is unfit to be tried and has done the act charged as murder, the automatic consequence ought to be admission to hospital as prescribed in s.5 (subject to the person's right to make immediate application to the MHRT and to the other protections afforded to a person subject to detention under these provisions); that the court should afford a measure of deference to Parliament in such a field; and that in all the circumstances the procedure is not to be stigmatised as arbitrary for the purposes of Article 5.
54. In the circumstances of the present case, however, it is unnecessary for us to reach any conclusion on that issue, since we are satisfied on the particular facts that the conditions for detention, albeit not considered in terms under the statutory procedure, were in fact met. All the experts who gave evidence in the s.4A proceedings were of the view that the appellant suffered from mental impairment within the meaning of the Mental Health Act 1983. They did not consider the question of disposal because it was not necessary for them to do so. We bear in mind that Dr Milne's recent report expresses the view that a guardianship order could have been considered in this case if it had not been precluded by statute, though the report also accepts that the appellant meets the definition of mental impairment and the concerns raised relate more to whether she is treatable and whether any treatment has to be delivered in a hospital setting. Against this, we are told in Mr Eadie's skeleton argument that the appellant did not exercise her right to apply for an immediate MHRT review of her detention (the Secretary of State has recently referred her case to the tribunal in accordance with his statutory obligation to do so). We are also told that, though no report is available, the Secretary of State understands from the clinical staff at the hospital that they believe that the appellant's mental impairment would justify her continuing detention in hospital and that there is treatment available which is alleviating her condition. Looking at the evidence as a whole, we take the view that the appellant did suffer from a mental disorder sufficiently serious to warrant detention and that the conditions for initial detention under Article 5(1)(e) were therefore met. That is a sufficient basis for rejecting this part of the appellant's case.
55. For those reasons the appeal against the jury's determination under s.4A of the 1964 Act is dismissed, the question raised in the case stated is answered in the negative and the appeal against the judge's order under s.5 of the 1964 Act is also dismissed.
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LORD JUSTICE ROSE: For the reasons given in the judgment of the Court handed down, the appeal against the jury's determination under section 4A of the 1964 Act is dismissed; the question raised in the case stated is answered in the negative; and the appeal against the judge's order under section 5 of the 1964 Act is also dismissed.

MR HINDSON: My Lord, your Lordships may recall I appear for the appellant in this case.

LORD JUSTICE ROSE: Yes, Mr Hindson.

MR HINDSON: My Lords, Mr Cosgrove was not able to attend this morning. Miss Richards appears for the Crown, and my learned friend Mr Lavender for the Secretary of State. My Lords, it is the position of the appellant that we would seek leave to appeal to the House of Lords.

LORD JUSTICE ROSE: You need first of all to get us to certify a question of general public importance. Do you have such a draft?

MR HINDSON: I do, my Lord. My Lord, I am aware that the Court has pressing business this morning, and it may be that you feel you are unable to proceed to make this decision this morning.

LORD JUSTICE ROSE: Oh, no, we shall make a decision. Do not worry.

MR HINDSON: Indeed. I am obliged, my Lord. My Lord, essentially, as you will see, the question relates, if I can put it this way, to the single and simple point, the point of provocation, that which was left open specifically by Lord Hope in the case of Antoine. Your Lordships have heard oral argument previously in the appeal itself and of course have read skeleton arguments from the appellant, the Crown, and indeed the Secretary of State. The appellant's position simply is that this is a point, having been specifically left open in Antoine by Lord Hope, that ought to be certified as one of general public importance and set down to be determined in due course by the House of Lords, if you are willing to grant the certification, firstly; and secondly, permission to appeal to the House of Lords.

My Lords, that is essentially the position of the appellant. I do not think there is anything usefully I can add to that.

LORD JUSTICE ROSE: Thank you very much. Miss Richardson, do you have any comment on the form of the question?

MISS RICHARDSON: No, my Lord, I do not.

LORD JUSTICE ROSE: Mr Lavender, do you have any comment on the form of the question?

MR LAVENDER: Not on the form of the question, no.

LORD JUSTICE ROSE: We shall certify a question in the following form: Where an accused person has been found to be under a disability so as to be unfit to plead to a count of murder, is the defence of provocation open on a hearing under section 4A of the Criminal Procedure (Insanity) Act 1964?

Do you want to say anything else in relation to leave to appeal?

MR HINDSON: No, my Lord.

LORD JUSTICE ROSE: Thank you. Leave to appeal is refused. Anything else?

MISS RICHARDSON: No.

MR HINDSON: Thank you, my Lord.

LORD JUSTICE ROSE: Thank you.