England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
T20120496

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2015

The Honourable Mr. Justice OPENSHAW :

1. The applicant Harold Chinegwundoh faced an indictment at the Crown Court at Snaresbrook charging him on count 1 with using a false instrument, contrary to section 3 of the Forgery and Counterfeiting Act 1981 and on count 2 with fraud, contrary to section 1 of the Fraud Act 2006 (count 2).
2. On 14 October 2013, Her Hon. Judge Lees heard medical evidence and determined that the applicant was under a disability and unfit to plead under section 4 of the Criminal Procedure (Insanity) Act 1964.
3. On 21 October 2013, following a hearing held under s.4A(2) of the Criminal Procedure (Insanity) Act 1964, the jury determined that that the applicant had done the acts charged against him.
4. Following this finding, on 4 April 2014, the judge made two orders against him, purporting to act under section 5 of the Act: she made a supervision order for 2 years and a restraining order until further order. Two technical points arise from these orders, to which we will return in due course.
5. We must however deal first with the facts. The applicant was once a practising barrister; he has since been disbarred following a disciplinary finding that he had forged a number of documents purporting to be court documents bearing what purported to be court stamps. Whilst in practice he represented a litigant under a legal aid certificate but he claimed – quite wrongly - that he was entitled to charge the client very substantial fees over and above the fees allowed to him under the legal aid certificate. This gave rise to a deluded belief that he was entitled to charge the property at 83 Richmond Road, Hackney, in satisfaction of this supposed debt, notwithstanding that the litigant had himself long ceased to have any interest in the property and that the present occupants had a good title to it, quite free from this imagined debt.
6. In order to obtain possession of the house, to which he believed he was entitled, he fraudulently obtained a writ of possession in respect of the property, as charged in count 1; he then engaged bailiffs to execute the writ, thereby casing considerable anguish and distress to the lawful occupants. Furthermore, he falsely represented to estate agents that he was entitled to sell the property, as charged in count 2, thereby causing them trouble and expense and causing the lawful occupants further difficulties.
7. The applicant, acting in person, applied for leave to appeal against the findings of fact; he devised fully 55 different grounds, to which the prosecution responded in detail. The single judge carefully considered each separate ground and found each to be without substance. The applicant then renewed his application to this court.
8. As we came into court on 10 December to hear his application, we were handed the court's Form A by which the applicant sought to abandon his application, or at least some parts of it. We have several concerns about this notice of purported abandonment. First, it is not at all clear what parts he wants to pursue and what parts he wants to abandon. Secondly, he was found to be under a disability at the trial; we have no medical evidence to suggest that he is not still under a disability, indeed the fact that he signs himself 'Prince Harold Chinegwundoh, King's Counsel' strongly suggest that he might be and he may therefore lack the necessary mental capacity to abandon the application. Since the notice of abandonment did not reach us before the hearing, he cannot abandon the appeal as of right; he requires the court's permission to do so (see CrimPR Part 68(2)(b)). Having regard to our concerns, we do not give permission for him to abandon the application, which we will proceed to hear.
9. We do not propose to deal in any detail with the applicant's own grounds of appeal, which – as we have said - the respondent addressed in detail, point by point; this response has been analysed by the single judge. Suffice it to say that all his grounds stem from his continuing delusion that he was owed money in respect of his fees for the case in which he acted all those years ago. We have each reconsidered what he has written; we are entirely satisfied that there is no merit in any of the points that he makes and we refuse leave for his application to pursue the matter to the full Court.
10. That however does not end the matter for alert staff in the Criminal Appeal Office spotted two possible irregularities in the orders made consequent upon the determination that the applicant did the acts charged against him. In order to assist the court in relation to these points, the Registrar instructed counsel, Miss Alexandra Ward to appear on the applicant's behalf; we are indebted to her; we appoint her to act on behalf of the applicant: see section 4A(2)(b) of the Act and R v Norman [2009] 1 Cr App R 13 and grant leave to appeal to allow us to consider these points.
11. We will deal first with the supervision order. Following a determination that a person did the acts charged against him, Section 5 of the Act gives the court power, inter alia, to make a supervision order.
12. By paragraph 4 of schedule 1A of the Act, a supervision order may include a requirement that the person subject to the order submits to treatment with a view to an improvement of his medical condition.
13. A 'supervision order' made under section 5 'has the meaning given in Part 1 of Schedule 1A' to the Act, which in turn defines a supervision order as 'an order which requires the person in respect of whom it is made… to be under the supervision of a social worker, an officer of the local probation board or an officer of a provider of probation services' (the supervising officer') for a period of not more than 2 years.
14. Paragraph 3 provides that the supervision order 'shall … specify the local social services area in which the supervised person resides or will reside and require him to be under the supervision of a social worker of the local services authority for that area.'
15. In fact the order as made by the judge required him 'to attend as an out-patient South London Maudsley Hospital under the supervision of Dr Hurn or her appointed colleagues'. This form of order did not comply with the requirements of the Act.
16. Section 16B of the Criminal Appeal Act allows this court to quash an order which is the subject of an appeal but it gives the court the power to make any such order as it thinks appropriate for the case, provided that the court below had the power to make such an order and, of course, provided that the order is not more onerous than the order originally made.
17. We therefore quash the order originally made and substitute the order suggested by Miss Ward in these terms: that that appellant be subject to ' a supervision order under section 5 of the Criminal Procedure (Insanity) Act 1964 for 2 years under the supervision of the London Borough of Southwark social services, with the following requirements for the duration of the order (i) to be under the supervision of David Baskerville, a social worker of the London Borough of Southwark Social Services as the supervising officer (ii) to submit to non-residential medical treatment at the South London and Maudsley NHS Foundation Trust under the direction of Dr Juliet Hurn'.
18. If there is a point of general principle to be learnt from this, it is that particular care needs to be taken with the precise form of these orders when they are made in the first place, for sorting them out on appeal is wasteful of valuable time and resources.
19. We turn then to the other point, which concerns the restraint order that the judge made.
20. Let us start with what the judge said as she identified the need for such an order. She said that the appellant never had any lawful claim to the property but he had subjected the occupants of 83 Richmond Road to the frightening ordeal of their homes being invaded and their personal belongings being thrown outside of the property. They were forced to resort to expensive emergency applications to the High Court to allow their safe return to their own homes. She therefore made a restraining order prohibiting him from contacting, approaching or communicating either directly or indirectly or attempting to do so with two named persons and the owner and tenants of 83 Richmond Road, Hackney.
21. Section 5 of the Protection from Harassment Act, 1997 permits the making of a restraining order upon conviction. As we have pointed out in the course of our judgment in Wells, the whole scheme of the Criminal Procedure (Insanity) Act is to protect those unfit to be tried from the full process of the criminal law and in particular from the stigma of conviction. It is trite law that a conviction can only follow a plea of guilty or a conviction after a criminal trial and necessarily requires the proof of the act (the 'actus reus') and, if the elements of the offence include it, the requisite mental element (the 'mens rea'). A finding that a person did the act, following a determination of unfitness, is not a conviction after a criminal trial and does not require proof of the requisite mental element. We therefore take it to be axiomatic that a finding that a person did the act cannot possibly be said to be a conviction for any purposes, and certainly not for the purposes of section 5 of the Protection from Harassment Act.
22. Section 5A of the Protection from Harassment Act, 1997 permits the making (in some circumstances) of a restraining order following an acquittal. The question therefore arises whether the finding that a person did an act following a determination of unfitness is an acquittal.
23. Mr Mousley QC for the prosecution here relies on R v (ARJ) [2013] EWCA Crim 591; [2013] 2 Cr App R 12, where this court decided that the special verdict of not guilty by reason of insanity (under the Trial of Lunatics Act, 1883) amounted to an acquittal which did enable a restraining order to be made upon the defendant. Mr Mousley says that this court has the power 'by analogy', as he puts it. But the Court in that case, without deciding the issue, expressed doubt as to whether a finding that a person had done the acts charged, under section 5A of the Criminal Procedure (Insanity) Act did amount to an acquittal so as to give the court the power to make a restraining order.
24. There are other problems with his argument. Section 5A(4) of the Act specifically provides that where a person has been found to have done the acts charged against him, and a Hospital Order with restriction is made against him, the Secretary of State, if satisfied that the person has become fit to be tried, may remit the case back to the Crown Court to be tried. But how can this be if a finding that he did the acts is an 'acquittal', as the prosecution contends.
25. Furthermore, section 4A(4) specifically provides that in respect of those counts upon which the jury are not satisfied that he did the acts charged against him 'they shall return a verdict of not guilty as if on the count in question the trial had proceeded to a conclusion'. It would therefore be quite remarkable, and entirely illogical, if a finding that he did do the act should also result in an acquittal, without the Act actually saying so.
26. For all these reasons we conclude that a finding that a person did the acts charged against him is not an 'acquittal', and it therefore does not give the court the power to make a restraining order under section 5A of the Protection from Harassment Act, 1997. Accordingly, the restraining order must be quashed.
27. It may be that this has identified a lacuna in the court's armoury; persons under a disability can present risks to others of harassment; perhaps the courts should have the power to make such an order but that is a power that can only be provided by Parliament and not by us.
28. For these reasons, we therefore refuse the renewed application for leave to appeal against the finding that the applicant did the acts charged but we allow, in part, the appeal against the orders made consequent upon the finding that he did the acts charged.
29. Finally, we direct that the costs of Miss Ward, who was appointed to advance the arguments on appeal, are covered by Part IIIA of the regulations made under section 19(3)(d) of the Prosecution of Offences Act 1985.