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Cite as: [2002] EWCA Crim 1916

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		Neutral Citation Number: [2002] EWCA Crim 1916
		Case No: 2002/00600 S4

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
(HH Judge Joseph)

Royal Courts of Justice
Strand, London, WC2A 2LL

31st July 2002

B e f o r e :

LORD JUSTICE MAY
THE HON. MR JUSTICE CRESSWELL
and
SIR RICHARD ROUGIER
____________________

Between:

	PLINIO GALFETTI	Appellant
	- and -
	R	Respondent

____________________

M GILL QC and S JAISRI (instructed by Blavo & Co) for the Appellant
J BEVAN QC and J DAWES (instructed by The Crown) for the Respondent
MISS J RICHARDS (An interested Party) for the Lord Chancellor’s Department
Hearing dates : 11th June 2002
____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________

Lord Justice May:

Mr Galfetti, the appellant, suffers from a schizoaffective disorder. He is aged 56 and has been known to psychiatric services for some 35 years. His condition responds to medication, but without it he presents a risk to others. In the context of these proceedings, four psychiatrists have expressed the view that he required treatment of his mental illness in a secure hospital. On 26^th July 2000, in the Crown Court at Croydon before HH Judge Joseph and a jury, he was convicted of possessing an offensive weapon and of indecent assault. He was acquitted of four other counts on the indictment. Thereafter the judge soon reached the conclusion with the aid of reports that the appropriate disposal was a hospital order under section 37 of the Mental Health Act 1983 with a restriction order under section 41 of the Act. Everyone agrees that this would have been the appropriate disposal. But the judge was unable to make the orders until 11^th May 2001, some 9½ months after the appellant was convicted. The reason for this unacceptable delay was that the hospital authorities failed to provide a place in a suitable hospital for Mr Galfetti to enable the order to be made at any earlier date. On this appeal against sentence, it is submitted on his behalf that, although the judge’s order would have been entirely appropriate if it had been made in the late summer or autumn of 2000, the excessive delay meant that the order had become wrong in principle. It is said that, by May 2001, the only appropriate order was one which secured the appellant’s release into the community.

The facts of the offences of which the appellant was convicted have become submerged in the acute and extended procedural difficulties which succeeded the appellant’s conviction. There were no submissions to this court which addressed the details of his trial. The offence of possessing an offensive weapon arose out of an incident on 20^th February 2000 at about 11.45 p.m. The prosecution description of the incident in a case summary included the following. Miss Jennie Sewerin was walking her dog in Belgrade Road, London SE25. She heard the voice of a man whom she recognised as being a neighbour. He was shouting about religion. She then saw that he was holding a large stick. He was holding the stick up, waving it about and shouting. He started to walk towards her and tried to hit her with the stick. She had to step backwards to avoid being hit. She started to run away, but he ran after her waving the stick at her. She tried to get into the entrance of some flats, but he stopped her from doing so. He started to grab hold of her arm and tapped her on the shoulder with the stick, whereupon she screamed for help. At intervals throughout this incident, he was shouting gravely offensive things with explicit sexual content. Miss Sewerin was terrified and did not know what to do. She was screaming hysterically. The incident which resulted in the appellant’s conviction of indecent assault also concerned Miss Sewerin and appears to have taken place in about December 1999.

The appellant has a number of previous court appearances. The written record provided to the court goes back to 1967. In January 1970, there are recorded two convictions before Arundel Magistrates’ Court of indecent assault on a female under the age of 14. Before the judge, the appellant disputed these convictions, and we are not aware that this question was finally determined. Other matters included a number of convictions for theft or burglary; two convictions in April 1987 before Liverpool Magistrates of assault occasioning actual bodily harm and assault on the police for which he was conditionally discharged; and a conviction before Croydon Magistrates in May 1999 for possessing an article with a blade or point in a public place, for which he also was conditionally discharged.

Section 37 of the Mental Health Act 1983 provides:

“(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, … and the conditions mentioned in sub-section (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order …

…

(2) The conditions referred to in sub-section (1) above are that –

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either –

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;

(ii) … and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

(3) …

(4) An order for the admission of an offender to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital …, and for his admission to it within the period of 28 days beginning with the date of the making of such an order.”

Section 41 of the 1983 Act provides:

“(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as “a restriction order”.”

Thus the purpose of a restriction order is to protect the public from serious harm from the offender in the light of the risk of his committing further offences if he is set at large.

Section 38 of the 1983 Act gives the court power to make an interim hospital order. This also requires a place in an appropriate hospital to be available within 28 days of the order. It was common ground before this court that the purpose of an interim hospital order is to assess whether it would be appropriate to make a hospital order for an offender suffering from mental illness. The purpose of an interim hospital order is not to hold the position until a place in an appropriate hospital is available for an offender for whom a hospital order is known to be appropriate.

Section 48 of the 1983 Act empowers the Secretary of State to direct the transfer to a hospital of a person suffering from mental illness who is detained on remand in prison, but not serving a sentence of imprisonment. Section 49 provides that, where the Secretary of State gives a transfer direction in respect of a person detained on remand in prison, he may also give a direction applying the special restrictions set out in section 41 to him. Under section 49(2) a restriction direction is to have the same effect as a restriction order made under section 41.

Part V of the 1983 Act concerns Mental Health Review Tribunals. Section 73 enables a Mental Health Review Tribunal in certain circumstances to direct the discharge of a restricted patient who is subject to a restriction order. Section 74 applies to an application to a Mental Health Review Tribunal by a restricted patient who is subject to a restriction direction made under section 49(2). Section 74(4) provides:

“If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal have made a recommendation under sub-section (1)(b) above, by warrant direct that a patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.”

The appellant had been arrested and charged on 21^st February 2000. He appeared before Croydon Magistrates and was remanded in custody to High Down Prison. On 18^th April 2000, the Secretary of State gave a direction under section 48 of the 1983 Act transferring the appellant from prison to Gresham Ward II at Bethlem Royal Hospital. The transfer was subject to a restriction direction.

After his conviction on 26^th July 2000, the judge adjourned the matter for medical and probation reports. He said that he wanted some assessment as to whether the appellant was considered to be a danger either to young girls or females generally. There then followed a series of psychiatric reports and no less than 10 court hearings, all but one of them before Judge Joseph, before the judge was finally able to make the hospital order on 11^th May 2001.

Dr Harty, a consultant forensic psychiatrist, prepared a report dated 1^st September 2000 at the request of the appellant’s solicitors. She recorded that the appellant had been known to psychiatric services in Croydon over the past 35 years. He had been diagnosed as suffering from paranoid schizophrenia. He disengaged from follow up in 1998 and did not comply with medication during this period. He had consistently declined to accept his illness or the need for treatment, which had fuelled his disengagement from services and non-compliance with treatment. In her opinion his condition was consistent with schizoaffective disorder. He currently lacked insight. She noted that he had been sentenced to hospital orders in the past. She was also of the view that he currently presented a risk to others, including a risk of sexual offending, and that this risk was increased in the context of drug and alcohol abuse. She considered that he required ongoing treatment of his mental illness in a secure hospital setting. She had therefore referred him to Dr Jonathan Vince, consultant forensic psychiatrist at the Shaftesbury Clinic Unit, Tooting, for assessment for transfer to medium hospital security. She recommended that sentencing should be postponed to facilitate this assessment.

The second court hearing was on the 25^th September 2000. Dr Harty’s report was available. Counsel for the appellant said on instructions that the appellant wanted to be sentenced on that occasion if it was at all possible, since he had been in custody for seven months. The judge considered that he was bound to put the matter back for a further report. Counsel indicated that she was instructed to ask for bail, saying that the appellant was now complying with requirements to take some medication. The judge did not grant bail, stating that he shared the doctor’s view that the appellant was a danger to the public and in particular to women. He adjourned the matter to 9^th October 2000, urging all speed. He said that, if he was in a position to sentence on that day, then he would. In the event, there does not appear to have been a hearing on 9^th October.

On 1^st November 2000, Dr Michael Yates prepared a report on the instructions of the appellant’s solicitors. He was a specialist registrar to Dr Jonathan Vince. His opinion was that the appellant had a severe mental illness of a nature and degree that made it appropriate for him to be detained in hospital to receive medical treatment. This was in the interest of his own health, his own safety and for the safety of others. He considered that the appellant’s serious mental illness had played a central role in his offending behaviour. His capacity for denial, lack of insight, substance misuse and inability to engage in psychiatric treatment amplified the risks that he posed to others. In his opinion, the appellant required ongoing treatment in a setting of medium hospital security. He said that when a suitable bed became available, he would be recommending that the appellant be detained under section 37 of the 1983 Act with a restriction order under section 41.

The next court appearance was on 6^th November 2000. The judge had Dr Yates’ report. No bed was available. Counsel on his behalf said that the appellant was anxious that his fate should be known as soon as possible, but that without a bed the case could not proceed on that day. The judge said that if nothing had happened before the 4^th December, he required an update from Dr Yates and some indication of when a bed was likely to be available. He said that these things could drag on for a very long time.

Dr Harty gave her second report, in her capacity as the appellant’s Responsible Medical Officer, on 10^th November 2000. She stated that he had been assessed and accepted for transfer to the Shaftesbury Clinic Medium Secure Unit, but that a bed was not available. A placement was being sought in the private sector.

On 15^th November 2000, Dr Elvin, a Social Work Consultant, made a social circumstances report for the Mental Health Review Tribunal. This concluded that the only realistic sentencing options were that he should serve a prison sentence or be placed in a medium secure unit for treatment.

On 23^rd November 2000, Dr Gupta, Consultant Psychiatrist, prepared a report at the request of the appellant’s present solicitors. This was for the purpose of the application to the Mental Health Review Tribunal. He recommended that disposal under the Mental Health Act would be justified and also in the appellant’s best interest. An order under section 37 with a restriction order under section 41 seemed appropriate, since the appellant had no insight into his offending behaviour and into his illness, which seemed to be inexplicably linked to each other. He had made progress over the last three or four months and examination of his current mental state indicated that he was stable and no longer suffering from active psychosis. Thus clinically he was in a remission and his illness was no longer of such a degree as to warrant his detention in hospital. However, the nature of his illness was such that non-compliance would inevitably result in a relapse, as had been the case over the last 30 years. He continued to pose a risk to others and working towards a planned discharge was likely to be the best way forward.

A fourth court hearing took place on 4^th December 2000. No bed was available. The appellant’s counsel asked for another two or three weeks to be given and that the doctors should be asked to give a firm date, if a bed was going to be available. The judge asked the appellant’s solicitors to communicate with the doctors to say that they must use their best endeavours to find a place.

On 7^th December 2000, there was a report from a forensic social worker suggesting that the appellant need no longer be detained.

On 21^st December 2000, there was a fifth court hearing. Again no bed was available. The appellant’s solicitors were in constant touch with the medical authorities, but there was no news of any potential bed and they were not prepared to commit themselves to a time limit. Counsel pointed out that the appellant had been in custody for 11 months. The judge said that the matter could not just drift, and he considered ordering Dr Harty or a colleague nominated by her to attend court, if no bed was found.

On 7^th August 2000, the appellant had applied to a Mental Health Review Tribunal under section 66 of the 1983 Act. The hearing originally planned for 4^th December 2000, took place on 8^th January 2001. The Tribunal had the reports of Drs Harty, Yates and Gupta, although Dr Harty herself was not present. The Tribunal decided that the appellant was not suffering from a mental illness, the nature and degree of which warranted his detention in hospital under section 73 of the 1983 Act. They were satisfied that it was not necessary for the health or safety of the appellant or for the protection of other persons that he should receive medical treatment. They accepted evidence that his present condition with current medication was settled. They ordered his discharge, subject to conditions. that he should comply with psychiatric and social supervision and with all directions as to medication, supervision and appointments.

This decision of the Mental Health Review Tribunal is accepted to have been made in error. Although the Tribunal recorded the authority for the appellant’s detention as being sections 48 and 49 of the 1983 Act, they ordered his discharge as if they were proceeding under section 73. They had no power to do so, but should have proceeded, if at all, under section 74. The mistake had the regrettable result that, on 13^th January 2001, the appellant was transferred back to prison.

On 16^th January 2001, Dr Yates wrote to the court saying that he had reviewed the appellant on the Gresham Intensive Care Unit at Royal Bethlem Hospital before he was returned to prison. The appellant was aroused and at times visibly struggled to contain his emotional disquiet. He continued to display many features that were far from normal and were evidence of a mental disorder which was outlined in his previous psychiatric report. Dr Yates disagreed with the decision of the Mental Health Review Tribunal. He believed that the appellant continued to suffer from a mental illness which was of a nature, and possibly of a degree, which made it appropriate for him to be liable to be detained in hospital for medical treatment. He also believed that such treatment should be in conditions of medium security. If the court were not to follow the decision of the Mental Health Review Tribunal, Dr Yates suggested that sentencing should be adjourned until it was clear that a bed would be available. If the court were to follow the Mental Health Review Tribunal decision, he considered that probation with psychiatric supervision might be an alternative.

There was a court hearing on 17^th January 2001. Counsel for the appellant urged the court to sentence him then to a non-Mental Health Act disposal. The judge noted Dr Yates’ opinion and said that he would now require an up-to-date report from a second doctor. The judge said that if he were to sentence the appellant to a term of imprisonment, it would be open to the prison authorities to transfer him again to a hospital. But he was reluctant to deal with sentence until the matter was resolved. Counsel for the appellant asked for bail on his behalf. The judge appreciated that he had been in custody a long time and that there was always anxiety when a place could not be found. But these were quite serious offences and the judge did not grant bail.

On 2^nd February 2001, Dr Harty wrote to the court saying that the appellant had been accepted for transfer to Stockton Hall medium secure hospital and that he was awaiting allocation of a bed. She was in agreement with Dr Yates that the appellant required treatment under a hospital order with restrictions.

Dr Harty wrote a fourth report dated 16^th February 2001. She maintained the views which she had expressed in her earlier reports. She remained of the view that the appellant continued to pose a risk to others in the community. She considered he would be at high risk of relapse in the medium term. If he were given a probation order with a condition of psychiatric treatment, she considered it highly likely that in the longer term he would disengage from services. She acknowledged the delay in securing a medium secure hospital placement. Strenuous efforts had been made and were continuing to identify a bed. He had been accepted by Stockton Hall Hospital for the next available bed which they anticipated would become available in the next couple of months. In the meantime, she had also discussed the possibility of his going to several other private sector hospitals and had referred him to St Andrew’s Medium Secure Unit in Essex.

The seventh court hearing took place on 19^th February 2001. Dr Harty gave evidence. She said that, until the psychiatrists were satisfied that they had completed their work, the appellant would be a high risk of sexual and violent offending, particularly if he relapsed. She acknowledged the difficulties and the frustration for the appellant and the court. There were a number of possible hospitals with whom she had been in contact. The best they would say is that they would provide a bed when it was available. She expressed disagreement with the conclusion of the Mental Health Review Tribunal. The appellant’s counsel submitted that he ought to be dealt with immediately as an ordinary defendant. Counsel pointed out the conflict between the decision of the Mental Health Review Tribunal and the opinion of the psychiatrists. The appellant had been in custody for exactly a year, although much of that time had been spent in hospital. Counsel suggested that the evidence of Miss Sewerin at the trial suggested that the facts of the assault were not at the highest level. The judge recalled that the circumstances were terrifying. Counsel accepted this, but said that the actual physical part of the assault was not of the greatest level. The judge understood the appellant’s frustration that the matter could not proceed, but was not prepared to sentence him on that occasion.

The matter then proceeded with three further court hearings on 19^th March and 9^th and 11^th April 2001, when no bed was available and on each occasion the matter was adjourned. There were further letters from Dr Harty and Dr Vince both dated 6^th April 2001. At the hearing on 11^th April 2001, counsel for the appellant said that he remained extremely anxious to be sentenced and that he wished this to be done immediately regardless of whether it was a custodial sentence or not. The appellant himself addressed the court. He said, among other things, that he had now been in custody for 13 or 14 months, and that, if he had been sentenced as an ordinary individual, he would by then have completed the sentence of imprisonment which his alleged crimes deserved.

Eventually on 3^rd May 2001, the appellant’s solicitors informed the court that a bed was available. Meanwhile, on two occasions in March 2001 applications had been made to allow the appellant to change his solicitors. These were refused.

At the hearing on 11^th May 2001, the judge heard or read evidence which satisfied the conditions for orders under sections 37 and 41 of the 1983 Act. Dr Harty’s reports were before the court and Dr Vince gave oral evidence. His opinion was substantially to the same effect as that which Dr Harty had expressed. There was no countervailing evidence. The appellant’s counsel on instructions objected on his behalf in principle to the imposition of a hospital order. But the appellant was also adamant that he would not countenance any further adjournment to seek further medical evidence.

At about the time of the eventual disposal in the Crown Court on 11^th May 2001, the appellant instructed new solicitors and counsel, and it was contended on his behalf that his continued detention was unlawful. This was on the basis that the delay following his conviction became excessive and that the failure of the Crown Court to dispose of the matter constituted an infringement of one or more of the appellant’s rights under the European Convention for Human Rights. It was further contended that the eventual disposal was unlawful. The appellant had been detained so long that any disposal other than one which released him into the community likewise infringed his human rights.

Relying upon these contentions, the appellant applied to the Administrative Court for a writ of habeas corpus and for permission to apply for judicial review. These matters came before a Divisional Court of the Queen’s Bench Division presided over by Auld LJ on 31^st January 2002. Both applications were dismissed. We are told that this was on the basis that the appellant’s detention in hospital pursuant to the order of the Crown Court on 11^th May 2001 was not unlawful; and that the order was not amenable to judicial review as being a matter “relating to trial on indictment” within section 29(3) of the Supreme Court Act 1981. The Court nevertheless reconstituted itself as a division of this court and granted the appellant permission to appeal against his sentence on the grounds relied upon before the Division Court.

It is pursuant to that permission that the matter now comes before this court. Meanwhile, the appeal was listed before another division of this court, presided over by Latham LJ, on 17^th April 2002, when it was adjourned, with an indication that it would be appropriate for the Lord Chancellor’s Department and the Attorney General to be represented because the appeal raised issues of wide importance. In the course of the short judgment, Latham LJ said:

“3. The problem that is raised, it seems to us, and needs to be considered with some care is the extent to which the court, in particular this court, is able to provide the appropriate protection to defendants in this appellant’s position. If it be the case, which we do not decide today, but that there was, for example, a breach of Article 6 in the delay which occurred between conviction and sentence, that delay was directly the result of judicial acts, namely the orders for adjournment, indirectly the consequence of the failure of the National Health Service to be able to provide the resources to enable the court to make an appropriate order. Because it is a judicial act, the remedy is by way of appeal; and Mr Gill’s argument is that the only way in which the court can properly give effect to the requirements of the Convention at this stage would be to deal with the appellant in a more lenient way than would otherwise be the case. It seems to us that that is an argument fraught with difficulty.

4. But if that is not correct, what is the remedy which is provided for a defendant if any breach occurs of the Articles to which we have referred? It is clear that, on present authorities, this court would have no control over orders by the Crown Court for adjournment. Those would be orders relating to trial on indictment, which would preclude any control by the Administrative Court by way of judicial review and they do not constitute orders which, by statute, can be appealed to this court. That would, on its face, appear to provide a lacuna in the ability of the courts to provide properly for the protection of the rights accorded to defendants under the Human Rights Act.”

In the light of this, both the Crown and the Lord Chancellor’s Department were represented before this court, and we are grateful for the written and oral submissions which counsel have made.

There is, however, a yet further complication. On 12^th November 2001, the appellant applied for a second time to the Mental Health Review Tribunal. On 12^th March 2002, the Tribunal ordered his discharge subject to conditions that he reside in the community at accommodation specified by the clinical team; that he participate in appropriate treatment groups and other activities as directed by the clinical team; and that he continue to be compliant with medication when in the community as directed as his Responsible Medical Officer. The Tribunal recorded that Dr Vince, his Responsible Medical Officer, told them “that the patient’s condition is chronic, episodic and relapsing but that in the last 3 months there has been a significant improvement. He has always been compliant with medication and has not been in any way a management problem.” The Tribunal decided to grant the appellant a conditional discharge but to defer it for a period of 6 months. They proposed to reconvene on 10^th September 2002. We are further told that the Secretary of State has sought Judicial Review of this decision of the Mental Health Review Tribunal. Those proceedings are, we understand, pending.

Mr Gill QC, on behalf of the appellant, submits that the order of the Crown Court of 11^th May 2001, was wrong in principle. The delay between the appellant’s conviction and the eventual disposal was excessive. That delay should have been taken properly into account. It was so great as to constitute an infringement of the appellant’s rights under one or more of Articles 3, 5, 6 and 8 of the European Convention on Human Rights. His continued detention amounted to inhuman or degrading punishment or treatment in violation of Article 3. Under Article 5(1), he was unlawfully deprived of his liberty, because there came a time when his detention became unlawful. Under Article 5(3), there came a time when he should have been released pending disposal, because he had not been brought promptly before a judge who completed the relevant trial process within a reasonable time. Under Article 5(4), he was not able to take proceedings by which the lawfulness of his detention might be decided speedily by a court and his release ordered if the detention was not lawful. Under Article 6(1), he did not receive a determination of the criminal charge against him within a reasonable time. There was a violation of respect for his private life under Article 8, by reason of the failure to find him a suitable hospital placement within a reasonable time.

Mr Gill submitted that the appellant plainly needed treatment, not punishment. A sentence of imprisonment would have been wrong in principle. This was especially so after the judge, in the Autumn of 2000, had given the clearest indication that he proposed to make a hospital order. By 19^th February 2001 at the latest, the court should have acceded to the appellant’s request to dispose of the matter. The only appropriate disposal then would have been release into the community. Mr Gill suggested a community rehabilitation order subject to additional requirements, or a conditional discharge. He did not shrink from taking this submission to its logical conclusion. If the appellant had been convicted of a much more serious offence of violence for which, but for his mental illness, a very long sentence of imprisonment would have been inevitable, a rights’ based analysis would nevertheless conclude that, upon excessive delay in finding a hospital bed, he should be released. There would come a time when recognition of his rights should outweigh all other sentencing interests, including the need to protect the public from a dangerous person suffering from mental illness. Mr Gill suggested that there were other statutory mechanisms by which in those circumstances the protection of the public might be achieved.

As to the order made on 11^th May 2001, this was wrong in principle by reason of the delay. The infringement of the appellant’s rights for which Mr Gill contended could only be recognised and accommodated by making an order equivalent to that which should have been made on or before 19^th February 2001. At one stage in his written submissions, Mr Gill suggested that the judge ought to have regarded himself as bound by the decision of the Mental Health Review Tribunal in January 2001 as to the need for detention in a hospital. In his oral submissions, Mr Gill accepted that the judge had to consider all the evidence before the court and that the decision of the Mental Health Review Tribunal could not by itself be regarded as determinative. It was, nevertheless, powerfully persuasive. Mr Gill further submits that this court, in addition to allowing the appeal against sentence, should (a) decide and declare that the appellant’s human rights were infringed by his excessive detention before a bed became available and the hospital order was eventually made; and (b) make a declaration of incompatibility in relation to the Criminal Appeal Act 1968. The submission is that there is no statutory mechanism whereby the successive orders of the Crown Court declining to proceed to sentence could be tested on appeal.

In our judgment, it is necessary to define the limits of this court’s statutory jurisdiction. We are concerned, and concerned only, with an appeal against sentence. The relevant jurisdiction is in section 9(1) of the Criminal Appeal Act 1968, which provides:

“A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.”

Section 50(1) of the 1968 Act provides that:

“(1) In this Act “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender including, in particular –

(a) a hospital order under Part III of the Mental Health Act 1983, with or without a restriction order.”

There is no appeal before this court against any of the antecedent orders of the Crown Court adjourning the matter and declining to proceed to sentence. It was generally agreed before us that there is no means of appealing such orders. Latham LJ said in this case that such orders do not constitute orders which, by statute, can be appealed to this court. We just wonder (without deciding) whether the expression in section 50(1) of the 1968 Act “any order made by a court when dealing with an offender” might not stretch that far, but received wisdom appears to be against that. However that may be, such an appeal is not before us. This court is of course bound by section 2 of the Human Rights Act 1998 to take account of any judgment of the European Court of Human Rights; and by section 3 of the 1998 Act to read and give effect to legislation in a way which is compatible with Convention Rights. But it is accepted that this court does not have power to award damages under section 8(2) of the 1998 Act, because damages may be awarded only by a court which has power to award damages in civil proceedings. The power in section 8(1) of the 1998 Act to grant such relief or remedy as the court considers just and appropriate is limited to relief, remedies or orders which are within the court’s power. This brings us back to section 9(1) of the 1968 Act. This court might, subject to important formalities not all of which are fulfilled in this case, have jurisdiction to make a declaration of incompatibility. But the orders for adjournment are not the direct subject of this appeal, and the incompatibility for which Mr Gill contends would be a statutory lacuna – see In re S. (Care Order: Implementation of Care Plan) [2002] 2 WLR 720 at paragraphs 85-6. Mr Gill did not press his submission that this court should make a declaration of incompatibility, since it was not necessary to do so to resolve Mr Galfetti’s predicament.

We have no hesitation in concluding that there was excessive delay between the appellant’s conviction and the eventual disposal by way of hospital order. Such delay was a relevant and an important consideration for the court to take into account in deciding what order to make. Depending on the circumstances of a particular case, delay, whether before or after conviction, may persuade a court to reduce the length of a custodial sentence or to impose a more lenient kind of sentence. It may be appropriate to characterise delay of this kind by reference to Article 6(1) of the Convention, but the delay is what it is and does not acquire a different quality by such characterisation. The fact of the delay and its consequences for the appellant will usually be more persuasive in the court’s sentencing exercise than an attribution of responsibility for the delay. In the present case, the delay occurred because the hospital authorities were unable to provide a place in a suitable hospital. It is not suggested that the prosecution were in any way responsible. The court could only be said to be responsible if the eventual order is wrong in principle and one or more of the antecedent orders for an adjournment was wrongly made. Otherwise the court was only responsible in the purely formal sense of being the public authority that made the orders.

The main consequences of the delay were (a) the appellant was kept in suspense as to his sentence for too long; (b) he was in detention during the period of delay, and during part of the period he was in prison – this due to the erroneous decision of the Mental Health Review Tribunal; and (c) the time when he was able to apply to a Mental Health Review Tribunal for his discharge was correspondingly delayed. These facts are relevant to a determination of his sentence. They are not made more persuasive by reference to other Articles of the Convention. It is not necessary to the sentencing process to reach any formal conclusion as to whether those articles, or indeed Article 6(1), were infringed. The limit of any human rights remedy which this court is able to provide lies in taking the underlying facts into account in the sentencing process. Any further finding, which might be relevant to possible remedies which this court has no jurisdiction to give, should not be made where neither the hospital authorities nor the Secretary of State are before the court.

The proposition, that the appropriate remedy available to this court lies in taking the delay and the facts associated with it into account in the sentencing process, accords with the decision of this court in Attorney General’s Reference No. 2 of 2001 [2001] EWCA Crim 1568. In that case, a judge sitting in the Crown Court had ordered an indictment to be stayed on the ground that there had been a breach of Article 6(1) of the Convention due to the delay in the proposed trial of the defendants. One of the two points on which the Attorney General sought the opinion of this court was whether criminal proceedings may be stayed on that ground in circumstances where the accused cannot demonstrate any prejudice arising from the delay. The judge had found that the delay in that case was an infringement of Article 6(1). He concluded that to proceed with the trial would be for the prosecution and the court to act in a way incompatible with Convention rights, contrary to section 6 of the 1998 Act. On this ground, the judge granted a stay. Lord Woolf LCJ, giving the judgment of the court said this:

“18. The reason that the judge was caused to take that view of the effect of section 6(1) is because of the terms in which the section is couched. It provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court. The approach of the judge, reflected in Mr Watson’s submissions, is that if there has been unreasonable delay, to go on and proceed to try a defendant results in a court acting in a way which is incompatible with that defendant’s rights. There is no discretion about the matter. Once the court has come to the conclusion that the reasonable time requirement in Article 6(1) has been contravened, the court has to stay the proceedings.

19. The illogicality of this approach, or the nonsense it produces, is illustrated when the position is looked at where it is not a party to criminal proceedings who is complaining about a contravention of the reasonable time requirement in Article 6, but a defendant in civil proceedings. The position of such a defendant was put to Mr Watson. The defendant would say, “Because of the delay my Article 6 rights have been infringed. Section 6(1) means that you cannot proceed with the trial of the claim which is brought against me”. But what about the claimant? The claimant is also entitled to Article 6(1) rights. The claimant says that he is entitled to have his rights determined within reasonable time. If Mr Watson is correct, the court would not be entitled to proceed with the trial because of its effect upon the defendant. With the greatest respect, that approach cannot be right. Similarly, at the trial of a defendant on a criminal charge, it is not only the defendant who is to be considered. The public are interested in whether or not defendants are tried for criminal offences they have committed. As is the case with many of the rights which are contained in the Convention, the courts are called upon to hold the balance between the rights of the individual and the rights of the public.”

In our judgment, this reasoning applies with equal force to Mr Gill’s submission that there came a time when the appellant’s Convention rights outweighed all other sentencing interests; and his extreme position that cases might in theory occur in which a defendant convicted of a very serious offence of violence who was a danger to the public might have to be released without even being sentenced. On the contrary, the court has to hold the balance between the rights of the individual and the rights of the public. The rights of the individual may have a substantial mitigating effect on the eventual sentence, but other considerations continue to be relevant in the balancing exercise.

Lord Woolf’s judgment in Attorney General’s Reference No. 2 of 2001 continued as follows:

“20. The explanation for the judge taking the view which he did, in our judgment, is because the judge failed to distinguish between the conduct which constitutes the unlawful act for the purpose of Article 6(1) and the remedy which the court provides for the unlawful act if there has indeed been an unlawful act. If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy. If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings. That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant. It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts. But there are many other actions which the court can take which avoid the need for such action. In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by so doing. In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant’s rights. If that be so, then the court can take other action. It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes. It has always been the practice for the courts in this jurisdiction to take into account delays of the sort to which we have referred when sentencing a defendant. It does so, recognising that it is inevitably a disadvantage to a defendant to have a charge hanging over his or her head longer than is reasonably required. The criminal process inevitably subjects an individual to distress.”

In so far as it is necessary, therefore, to characterise the process as providing a remedy under Article 6(1), it lies in taking the delay and its consequences into account in determining the disposal. This court on this appeal has no other material jurisdiction than to do likewise.

When the judge made the hospital and restriction orders on 11^th May 2001, he cannot but have been acutely conscious of the delay and its consequences for the appellant. He was the trial judge and the judge who had conducted all but one of the ten intervening hearings. The appellant had been convicted of the serious offences which we have described. The judge knew that no less than four psychiatrists had expressed the opinion that hospital and restriction orders were appropriate and necessary for the protection of the public. The decision of the Mental Health Review Tribunal was out of kilter with these opinions. The evidence before the court on 11^th May 2001 not only satisfied the formal requirements of sections 37 and 41 of the 1983 Act, but constituted clear opinion evidence of the need for those orders. The psychiatric evidence indicated that the need had not diminished since the Autumn of 2000, when the initial psychiatric evidence was obtained at the request of the appellant’s own solicitors. No one suggests that a sentence of imprisonment would have been appropriate. A community rehabilitation order with appropriate additional requirements including psychiatric treatment might have been a possibility, if formal requirements had been complied with, but this would not have accorded with the clear opinions and recommendations before the court. This court is acutely concerned, as was the judge, about the delay in finding an appropriate hospital place, and that regrettable fact was an important consideration in the court’s duty to hold the balance between the appellant’s rights and the rights of the public. But taking the delay and its consequences fully into consideration, we do not think it can realistically be maintained that the judge was wrong in principle to make the order that he did. For these reasons this appeal is dismissed.

The remainder of this judgment is comment, not decision.

Section 37 and other sections of the 1983 Act providing for hospital orders are an essential part of the court’s powers of disposal. Mentally ill offenders, who may be a danger to the public, may need treatment, not imprisonment. But the necessary requirement, that the court cannot make a hospital order unless a place in an appropriate hospital will be available within 28 days, means that the proper administration of justice is frustrated if a place cannot be found within a reasonable time. What is a reasonable time will depend on individual circumstances, but the 9½ months in the present case was plainly excessive by a wide margin. This court has articulated complaints similar to this on previous occasions. It appears that the problem is endemic. Whenever a hospital place is not available within a reasonable time for an offender for whom a hospital order is the appropriate disposal, the court is disabled from affording justice in the way which Parliament has provided.

There is a number of possibilities available to the sentencing court. None of them is wholly satisfactory. First, the judge can and should make every effort to persuade the hospital authorities to find a suitable hospital place. We think that the judge in the present case did all that he could in this respect, as our account of his ten hearings amply demonstrates. Second, there may come a time in an individual case when, by reason of delay, a sentence other than a hospital order should be considered. We do not consider that it would have been appropriate in the present case. There may be cases where a different sentence might be appropriate. But it could scarcely ever be satisfactory, if a court is constrained to pass a different sentence simply because an appropriate hospital place is not available. Third, as we have already said, the court will take delay into account in deciding on the eventual disposal. These possibilities, however, do no more than ameliorate a situation which should not arise in the first place.

This court on appeal has the limited powers which we have described. Beyond that, we can do no more than draw attention in appropriate quarters to our profound disquiet. This we shall do. We also draw attention to the possible lacuna which this case illustrates, that is that there may be no route by which a defendant convicted in the Crown Court can appeal an order adjourning his sentence.