England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Caes No: 2007/01666/B3 Royal Courts of Justice Strand London, WC2
		5th October 2007

1. LORD JUSTICE TOULSON: These are unusual and unfortunate circumstances, but we think that we should proceed. He has been found unfit to instruct counsel and Mr Baker you have indicated to us this morning that there is no way that his attendance today could assist you.
2. MR BAKER: That is correct.
3. LORD JUSTICE TOULSON: In those circumstances, regrettable as they are, it seems to us in the public interest that we should proceed and we cannot see that in these circumstances there can be any possible prejudice to the appellant in our doing so.
4. It is of course important that the appellant should be able to understand what has happened, and I will give directions that the remarks that I have just made be transcribed. In due course of course there will be a transcript of the judgment and I will give directions that that either be translated into a language he can understand or be explained to him by an interpreter, whichever course may be more practicable.
5. Is there anything further that you would ask us to do?
6. MR BAKER: No thank you, my Lord. That seems eminently sensible.
7. LORD JUSTICE TOULSON: Thank you very much.
(Submissions on appeal against conviction)
8. LORD JUSTICE TOULSON: Does a court have power to allow the introduction of hearsay evidence in proceedings under section 4A of the Criminal Procedure (Insanity) Act 1964, i.e. proceedings to find whether a person under a disability which prevents him from standing trial did the act with which he is charged?
9. Hearsay evidence has been widely admissible in civil proceedings for many years. More recently, Chapter 2 of Part 11 of the Criminal Justice Act 2003 has made hearsay evidence much more widely admissible than was previously the case in criminal proceedings. For the purposes of that Chapter, "criminal proceedings" are defined in section 134 as meaning:

"... criminal proceedings in relation to which the strict rules of evidence apply; ..."

10. The present issue is whether proceedings under section 4A of the 1964 Act fall within that description or, if not, whether hearsay is nevertheless admissible in such proceedings if it would be admissible in criminal proceedings.
11. The issue arises in the following way. On 10th June 2006 the appellant was working as a building labourer at a site in Coventry, with three other men named Amrik Singh, Sukhjit Singh and Gurjit Singh. The prosecution's case was that the four were having lunch when, without warning and for no apparent reason, the appellant attacked Amrik Singh with a sledgehammer with tragic consequences. He struck him on the head with such force that the victim suffered brain injury, which has left him unconscious and in a persistent vegetative state. Witnesses who came on the scene described the appellant as behaving like a mad man. He was arrested by the police and subsequently charged with an offence under section 18 of the Offences Against the Person Act 1861. In due course he was found to be unfit to stand trial under section 4A of the 1964 Act.
12. Under the original terms of that Act the result of such a finding would have been that the appellant would have been detained in a secure mental hospital without any further inquiry whether he had done the act with which he was charged. As Lord Bingham explained in R v H [2003] 2 Cr App R 2 at paragraph 6, there was an obvious potential for injustice in detaining a person as dangerous without further investigation, when it might not be possible for the prosecution to show that he had done the act which gave rise to the inference of dangerousness. In order to obviate that risk, the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 amended the 1964 Act by introducing section 4A. Where a person has been found to be under a disability, section 4A provides, so far as material, as follows:

"(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."

13. If a finding is made under section 4A(3) that the accused did the act or made the omission charged against him, section 5 provides for a range of possible orders which a court may make, including a hospital order with or without a restriction order.
14. In the present case, after the finding of unfitness, the matter proceeded to a hearing under section 4A at Coventry Crown Court, before His Honour Judge Eccles QC and a jury. The hearing began on 15th March 2007 and ended on the following day, with a verdict by majority of 11 to one that the appellant did the act with which he was charged. The judge made a hospital order with a restriction order without limit of time.
15. The appellant appeals against the jury's finding, by leave of the single judge, on the ground that the judge wrongly allowed hearsay evidence to be admitted under section 116 of the Criminal Justice Act 2003. The evidence was in the form of a statement taken by the police from one of the appellant's fellow workers, Sudjit Singh. In the statement he gave a full eyewitness account of the attack. Live evidence was given by people who came on the scene immediately after the attack, and they provided cogent evidence that the appellant had gone berserk. But Sudjit Singh's was the only eyewitness evidence. Unfortunately he had disappeared by the time of the hearing and police had been unable to trace him. In those circumstances, the judge admitted his evidence under section 116(2)(d) of the 2003 Act. That provides as follows:

"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

...

the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; ..."

16. In his clearly expressed and well-reasoned ruling the judge rejected an argument that the section was incapable of applying to proceedings under section 4A, but he held in the alternative that if the proceedings were to be classified as civil proceedings, the statement was admissible under section 1 of the Civil Evidence Act 1995. He recognised that the period of notice required by the rules had not been given, but because no prejudice had been caused by non-service of a notice and because no useful purpose would be served by an adjournment, he said that he would exercise his discretion to dispense with the requirement of notice and to admit the evidence.
17. Mr Baker on behalf of the appellant submits that the proceedings under section 4A were not criminal proceedings at all, because they were incapable of resulting in a criminal conviction and punishment. Therefore, they could not be "criminal proceedings in relation to which the strict rules of evidence apply". In support of this argument he relied on a number of authorities, but principally on the decision of the House of Lords in H. The issue in that case was whether proceedings under section 4A were compatible with Article 6 of the Human Rights Convention. More specifically, at paragraph 14, Lord Bingham of Cornhill, with whom the other members of the judicial committee agreed, set out the issue as follows:

"It was not suggested by the appellant that the section 4A procedure was incompatible with the Convention even if it did not involve the determination of a criminal charge. His argument depended on making good his premise that the procedure did involve the determination of a criminal charge. Thus the crucial issue dividing the parties was whether the procedure did or did not involve the determination of a criminal charge."

18. Under the heading "The determination of a criminal charge", Lord Bingham went on to examine English and European jurisprudence on what were to be regarded as criminal proceedings. He rejected the argument that the section 4A procedure was a criminal procedure in the relevant sense. He observed at paragraph 19:

"The House was referred to no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. It is, indeed, difficult if not impossible to conceive of a criminal proceeding which cannot in any circumstances culminate in the imposition of any penalty, since it is the purpose of the criminal law to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society to merit the imposition of penal sanctions."

19. In this case the issue is somewhat different. The court is concerned first with the construction of the phrase "criminal proceedings in relation to which the strict rules of evidence apply." Those words have to be construed in their context.
20. The phrase could be interpreted in either of two ways. First, criminal proceedings could bear the meaning used by Lord Bingham in H; that is to say, criminal proceedings could be confined to proceedings which could culminate in the determination of criminal guilt or the imposition of a penalty. On that approach the words of limitation "to which the strict rules of evidence apply" would limit the phrase to those parts of criminal proceedings to which those rules apply. There are, for example, parts of the sentencing process which would come within the strict definition of criminal proceedings advanced by Mr Baker, but to which the ordinary rules of criminal evidence do not apply. (See R v Silcock [2004] EWCA Crim 408 regarding confiscation proceedings.)
21. Secondly, the phrase could be construed more generally so as to include all proceedings within the compass or framework of criminal proceedings, including ancillary proceedings which cannot of themselves involve conviction or punishment, in so far as the strict rules of evidence are applicable to them.
22. If the second construction is right and if section 4A proceedings are proceedings to which the strict rules of evidence apply, it would follow that the judge had power to admit the hearsay evidence under section 116.
23. However, if the first construction is right, it by no means necessarily follows that the judge lacked power to admit hearsay evidence in the section 4A proceedings. There are many statutory procedures which provide for allegations of misconduct to be investigated by some form of judicial or quasi-judicial body, whether a court, a tribunal or some regulatory body. The consequences for the person concerned may be severe. They may include financial penalties, dismissal from public office or professional disqualification. Sometimes the rules of practice and procedure to be followed in those proceedings are closely prescribed by the parent statute or in secondary legislation. Oftentimes the statute may contain some basic provisions, but it remains for the court (or for the relevant body under the supervision of the court) to fill in the gaps and devise a fair procedure. In some cases the rules of evidence adopted are very strict; in other cases less so.
24. Assume for the sake of argument that section 4A proceedings do not fall within the expression "criminal proceedings in relation to which the strict rules of evidence apply", because they are not criminal proceedings as such. Section 4A contains two fundamental provisions about the way in which it is operate. The first is that the decision is to be made by a jury. The section does not say whether the decision must be unanimous or by a simple majority or some other majority. However, it has always been assumed, in our view rightly, that the same provisions must apply as if it were a trial of the defendant for the offence.
25. Secondly, the section stipulates that the jury is to make a finding that the defendant did the act charged if, but only if, it is satisfied that he did so; and that, if not so satisfied, it must acquit him. The Act does not say so in terms, but it is common ground that the jury must be satisfied to the criminal standard of proof. In our view that must also be right.
26. Again, the Act does not say so, but in our view it is axiomatic that the jury must be satisfied by evidence that would be admissible if the defendant were on trial. We must remember here the purpose of section 4A. It is that a person should not be detained unless a jury at a criminal trial would have found that he did the act charged and, conversely, that he should be eligible for detention if the jury is so satisfied. In order to achieve that result, it is in our view imperative that the same rules of evidence and criminal procedure must be applied as would be applied if this were a criminal trial in the strict sense.
27. It is to be noted from the provisions of section 4A that the issue of fitness may be raised either before or during the course of the trial. If it is raised during the course of the trial, then, as section 4A(2) stipulates, the determination whether the defendant did the act is to be made on the evidence already adduced in the trial before the stage of the finding of incapacity, plus such additional evidence as may be given. It cannot seriously be contemplated that Parliament envisaged that different evidential rules would apply in relation to evidence adduced before and after the determination of incapacity. For those reasons, it is in our view essential in order to achieve the underlying purpose of section 4A that the court should adopt and apply the same evidential rules as if these were criminal proceedings.
28. In H Lord Bingham said, at paragraph 20 that:

"The procedure under section 4A must always, of course, be conducted with scrupulous regard for the interests of the accused person, ..."

That would be the case if the same evidential rules are applied as Parliament considered to be just in the case of a defendant on trial.

29. It must be remembered that the hearsay provisions in the 2003 Act may of course operate in favour of, as well as against, a defendant. A defendant may seek to introduce hearsay evidence. At one stage in his argument Mr Baker was constrained to submit that it would not be open to a court conducting section 4A proceedings to admit hearsay evidence which tended to show that the defendant had not committed the act. This would run wholly counter to the purpose of the section. But justice is two-sided, and just as the purpose of the section is to ensure that persons are not detained who would have been acquitted after trial, so the protection of the public makes it necessary that people should be eligible for detention in respect of whom the prosecution would have been able to prove to the requisite criminal standard at a trial that they had committed the act charged.
30. Mr Baker was in difficulty in suggesting what rules should apply to section 4A proceedings if, as he submitted, they are not criminal proceedings. His ultimate submission was that the court should apply common law rules of criminal evidence. We can see no logical reason why the court should do so and every reason why it should not do so, if, as we stress, the purpose of a hearing under section 4A is to mirror as closely as possible the fact-finding process at a criminal trial.
31. Mr Phillips, on behalf of the prosecution, submitted that on its proper construction the phrase "criminal proceedings to which the strict rules of evidence apply" includes section 4A proceedings, and he relied in particular on section 125(3) of the 2003 Act. Section 125(1) makes provision for a criminal trial to be stopped if, at any stage after the close of the case for the prosecution, the case has been dependent on hearsay evidence which the court judges so unconvincing that the defendant ought not to be convicted. Section 125(3) contains similar provisions in relation to proceedings under section 4A of the 1964 Act. It states as follows:

"If —

(a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 whether a person charged on an indictment with an offence did the act or made the omission charged, and

(b) the court is satisfied as mentioned in subsection (1) above at any time after the close of the case for the prosecution that—

(i) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and

(ii) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the person, a finding that he did the act or made the omission would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury."

32. Mr Phillips' argument was that since that provision forms part of the hearsay provisions in the 2003 Act, Parliament plainly contemplated that the provisions of that Act might apply to such proceedings. Mr Baker's response was that section 125(3) could only apply in very limited circumstances, that is, where hearsay evidence was admissible in section 4A proceedings either under one of the common law exceptions or by agreement between the parties.
33. We think it unrealistic to suppose that Parliament can have had such a narrow intention in mind. It is plain in our judgment that the drafter contemplated that hearsay might be admissible in section 4A proceedings, whether by direct application of the provisions of that part of the Act, or by the court applying the same rules to section 4A proceedings as would be applicable to a trial.
34. In our judgment, the judge had power to admit the relevant evidence, whether on the basis that Part 2 of Chapter 11 of the 2003 Act applies directly to section 4A proceedings as a matter of statutory interpretation, or whether on the basis that it does not but that the court in such proceedings should adopt the same rules of evidence as would apply in criminal proceedings. It is an arid question which of those analyses is to be preferred. We can see the force of the argument in favour of the latter analysis, which avoids having to say that section 4A proceedings are criminal proceedings for one purpose but are not criminal proceedings for another, but it is a point of purely intellectual interest which it is unnecessary for us formally to decide for present purposes.
35. Mr Baker realistically and properly accepted that if the judge had power to admit the evidence, no complaint could be made about his doing so. In view of the conclusion which we have reached, it is unnecessary for us to consider the judge's alternative fallback position, which was to rely on the Civil Evidence Act. For the reasons given, this appeal must be dismissed.
36. We are grateful to counsel for their interesting arguments.
37. MR PHILLIPS: Thank you, my Lord.
38. MR BAKER: Thank you, my Lord.
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