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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kenneally, R (on the application of) v Snaresbrook Crown Court [2001] EWHC Admin 968 (27th November, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/968.html
Cite as: [2002] ACD 46, [2002] QB 1169, [2001] EWHC Admin 968, [2002] 2 WLR 1430, [2002] MHLR 53
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R (ON THE APPLICATION OF JOHN KENNEALLY) v. SNARESBROOK CROWN COURT [2001] EWHC Admin 968 (27th November, 2001)

Neutral Citation Number: [2001] EWHC Admin 968
Case No: CO/3607/2000

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(DIVISIONAL COURT)
CO/4577/2000
Royal Courts of Justice
Strand, London, WC2A 2LL
27 November 2001

B e f o r e :

LORD JUSTICE PILL
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE TOMLINSON
Applicant
Respondents
____________________

THE QUEEN
On the application of
JOHN KENNEALLY

- v -

SNARESBROOK CROWN COURT


Applicant



Respondents




 ____________________

Judgment
As Approved by the Court
Crown Copyright ©
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
 ____________________

Crown Copyright ©

    Lord Justice Pill:

  1. The applicant Mr John Kenneally, seeks to quash an order of His Honour Judge Brooks made at the Snaresbrook Crown Court on 12 May 1997. The judge made a hospital order, with a restriction order, under section 51 of the Mental Health Act 1983 (“the 1983 Act”). The applicant is still detained pursuant to those orders. He also seeks a writ of habeas corpus ad subjiciendum. It is also submitted that if the Court holds that it has no jurisdiction as a Divisional Court, it should reconstitute itself as a Court of Appeal (Criminal Division) and consider an appeal against the order made.

  2. The applicant appeared at the Crown Court charged with two offences of indecent assault on young girls. He had denied the charges in interview and pleaded not guilty to them on arraignment in the Crown Court on 6 December 1996. He had no relevant previous convictions. The order under section 51 was made at the request of counsel appearing for the applicant, counsel for the prosecution supporting the application on the basis that it was for the judge to decide whether the appropriate medical test was satisfied

    3. Statutory background

  3. Section 51 of the 1983 Act is derived from section 76 of the Mental Health Act 1959 and provides, insofar as is material:

    4. “(1) This section has effect where a transfer direction has been given in respect of any such person as is described in paragraph (a) of section 48(2) above and that person is in this section referred to as the ‘detainee’.

    (2) The transfer direction shall cease to have effect when the detainee’s case is disposed of by the court having jurisdiction to try or otherwise deal with him, but without prejudice to any power of that court to make a “hospital order” or other order under this Part of this Act in his case.

    …

    (5) If … it appears to the court having jurisdiction to try or otherwise deal with the detainee—

    (a) that it is impracticable or inappropriate to bring the detainee before the court; and

    (b) that the conditions set out in subsection (6) below are satisfied,

    the court may make a “hospital order” (with or without a restriction order) in his case in his absence and, in the case of a person awaiting trial, without convicting him.

    (6) A “hospital order” may be made in respect of a person under subsection (5) above if the court—

    (a) is satisfied, on the written or oral evidence of at least two registered medical practitioners, that the detainee is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for the patient to be detained in a hospital of medical treatment; and

    (b) is of the opinion, after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make such an order.”

    It is accepted that the applicant was at the material time “a detainee” within the meaning of the section. Section 48 permits the Secretary of State to direct the transfer of a person detained on remand to be detained in a hospital for medical treatment provided certain medical requirements are satisfied. It is common ground that the power was properly exercised in this case.

  4. A hospital order is defined in section 37 of the Act and authorises the admission and detention of a person in such hospital as may be specified in the order. Section 41 confers on the Court a power to impose special restrictions upon a person subject to a hospital order.

  5. Section 41(1) provides:

    6. “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”.”

    The special restrictions set out in the section have a substantial effect and include restrictions upon the discharge of the hospital order. That there is a power in the Crown Court under section 51 to make a hospital order, with a restriction order, without convicting the defendant is in my view clear.

    The applicant’s position

  6. The applicant was 30 years old at the time the order was made. He had a long history of schizophrenia. He had on several occasions been compulsorily detained in hospital under section 3 of the 1983 Act, including for one period of four years. I do not intend to set out the medical evidence in detail because, having regard to the conclusion I have reached, it is not necessary to do so and a fresh consideration of the medical evidence may be required in future proceedings. I do not accept the submission of Mr Fitzgerald QC, for the applicant, that the judge was not entitled on 12 May 1997 to hold that the requirements of section 51(6) of the 1983 Act were satisfied. The judge had before him reports from Dr D Nevison-Andrews, consultant psychiatrist and Dr L Duggan, senior registrar in forensic psychiatry. Dr Duggan gave oral evidence. Subject to a point which arises as to the material which the judge was entitled to take into account under section 51, the evidence before the judge justified him in concluding, on a view of the evidence he was entitled to take, not only that a hospital order was justified but also that he could exercise the power conferred in section 51(5) to make the hospital order with a restriction order.

  7. Before considering what happened in the Crown Court, it is necessary to decide whether this Court has jurisdiction to quash an order made in the Crown Court under section 51 of the 1983 Act. I do so having first concluded that the applicant had no right of appeal to the Court of Appeal Criminal Division. In the event Mr Fitzgerald QC argued only faintly for the existence of such a right. Section 9 of the Criminal Appeal Act 1968 provides that “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 … .” It is fundamental to the operation of section 51 that there has been no conviction. In the absence of a conviction, there is no appeal to the Court of Appeal and the possibility of the Court re-constituting as a Court of Appeal Criminal Division does not arise.

    8. Section 29(3) of the 1981 Act

  8. For the respondent, Mr Sales submits that section 29(3) of the Supreme Court Act 1981 (“the 1981 Act”) precludes any jurisdiction in the Court to quash. It provides:

    9. “In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court”.

  9. Mr Sales draws a distinction between the penal system for dealing with mentally ill persons and the medical system. The penal system operates when, for example, a hospital order (with or without restriction) is made following conviction for an offence punishable by imprisonment. The medical system operates when, for example, a person is admitted to a hospital and detained there following application to the hospital for compulsory admission under sections 3, 4 or 5 of the 1983 Act and subject to the terms of those sections. Mr Sales submits that section 51 is at the interface of the two systems. The effect of an order is to pass the person detained from the penal system into the mental health system. The order itself is, it is submitted, part of the penal system. It is a determination which disposes of the subject matter of the indictment and as such it relates to trial on indictment. That is so whether or not the Court has completed its function when a section 51 order has been made. If it has not, it is open to the Crown Court to revert back to the penal mode and decisions taken relate to trial on indictment. The section 51 order can be regarded as a case management measure in the course of a trial on indictment. If the Court has completed its function, the matter has been disposed of. The section 51 order, which spares the defendant a trial on indictment, relates to trial on indictment.

  10. Counsel referred to House of Lords decisions on this subject and to the analysis of them in this Court in R v Crown Court at Maidstone ex p Harrow London Borough Council [1993] 3 All ER 542. When considering the scope of the expression “relating to trial on indictment” in section 29(3) in Smalley v Crown Court at Warwick [1985] AC 622, Lord Bridge of Harwich stated, at p 643-4:

    11. “It must not be thought that in using the phrase ‘any decision affecting the conduct of a trial on indictment’ I am offering a definition of a phrase which Parliament has chosen not to define. If the statutory language is, as here, imprecise, it may well be impossible to prescribe in the abstract a precise test to determine on which side of the line any case should fall and, therefore, necessary to proceed, as counsel for the appellant submitted that we should, on a case by case basis”.

  11. In DPP v Crown Court at Manchester and Ashton [1994] 1 AC 9, an order of the Crown Court that the whole or part of an indictment should be stayed was held to be a decision “relating to trial on indictment”. Lord Slynn of Hadley considered the observations of Lord Bridge in Smalley’s case and in Sampson v Crown Court at Croydon [1987] 1 WLR 194. Lord Slynn, with whose speech each of their Lordships concurred, stated, at p 20:

    12. “In my view it is not necessary to reconsider or to depart from the guidance given in Smalley and Sampson. Lord Bridge made it plain in both cases that he was not seeking to substitute a new phrase for the phrase in the statute but was seeking to give ‘a helpful pointer’ as to the way the exclusion should be applied. His expression ‘affecting the conduct of a trial’ is apposite to deal with the situation where an order is made before trial and during the trial; the expression ‘an integral part of the trial process’ includes an order made at the very end of the trial, though it may equally apply to an order made during the trial and even before the trial. In neither case did Lord Bridge draw a distinction between an order as to how and when a trial is to be held and an order which decides whether there shall or shall not be a trial … The legislative purpose in excluding judicial review of such matters is fully analysed by Lord Bridge and I accept his analysis. He stressed the risk of delay to the trial if applications for judicial review are to be entertained and the extent to which remedies are otherwise available to the parties in criminal proceedings. The defendant, if convicted, can appeal, even if this may not, for a successful appellant, be as speedy or efficacious a remedy as judicial review before trial. That the prosecution would have no right to appeal is consistent with the general policy of the law, save as provided by statute”.

  12. In DPP v Crown Court at Manchester and Huckfield [1993] 1 WLR 1524 it was held that a judge’s decision to quash an indictment, having upheld an objection to the jurisdiction of the Court, fell within the excluded category identified in section 29(3). Lord Browne-Wilkinson, with whose speech each of their Lordships concurred, stated at p 1529:

    13. “The exclusionary words in s 29(3) exclude, not simply decisions made under its jurisdiction to try on indictment, but also ‘its jurisdiction in matters relating to trial on indictment’. On any ordinary meaning of the words, the question whether or not there is jurisdiction to try on indictment must ‘relate to’ trial on indictment. (Lord Browne-Wilkinson’s emphasis)”

    At p 1530, Lord Browne-Wilkinson stated:

    “In my judgment, the case by case method of elucidating the meaning of s 29(3) has now gone far enough to make it possible to detect a further ‘helpful pointer’. With one possible exception (to which I will return) the only decisions of the Crown Court which have been held to be reviewable are those in which either the order was made under a wholly different jurisdiction, eg binding over an acquitted defendant (R v Crown Court at Inner London, ex p Benjamin (1986) 85 Cr App R 267) or the order sought to be reviewed has been made against someone other than the accused. Thus the Divisional Court has been held to have jurisdiction to review decisions estreating a recognisance given by a third party (Smalley), ordering solicitors to pay costs thrown away (per Megaw LJ in R v Smith (Martin) [1974] 1 All ER 651 at 658, [1975] QB 531 at 544-545, approved by Lord Bridge in Smalley) for an order forfeiting a motor car belonging to someone other than the defendant which had been used by the defendant in the course of drug dealing: R v Crown Court at Maidstone, ex p Gill [1987] 1 All ER 129, [1986] 1 WLR 1405. It may therefore be a helpful further pointer to the true construction of the section to ask the question: ‘is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)? If the answer is Yes, then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is No, the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore it may well not be excluded by the section. I must emphasise that, again, this is not an attempt to give a comprehensive definition of the meaning of the statutory words: it is merely a third helpful pointer. There may be cases where it points in the wrong direction”.

  13. In the Harrow case, Mitchell J, with whom Kennedy LJ agreed, went on to consider whether, notwithstanding the wording of section 29(3), there is a residual jurisdiction in the High Court to supervise the Crown Court in respect of a matter relating to trial on indictment if the challenge is to jurisdiction. Mitchell J stated (at p 560j) that: “The issue of ‘jurisdiction’ is not the same as an issue relating to the quality of a decision or an order which the Crown Court did have jurisdiction to take or to make.” Mitchell J contemplated (p 561b) a situation in which “what a judge does, although it may be ‘clothed with the appearance of propriety and normality’ [which] is other than in the exercise of that jurisdiction may be subject to the jurisdiction of this Court”. Mitchell J thought it undesirable to “proffer a test” (p561c) but held that this Court’s supervisory jurisdiction over the Crown Court did extend to correcting a “jurisdictionally flawed act” (p 561f). The Court for want of jurisdiction quashed an order made in the Crown Court under section 5(2)(b)(ii) of the Criminal Procedure (Insanity) Act 1964 when the judge had not first empanelled a jury to determine the question following a plea of not guilty by reason of insanity.

  14. In submitting that section 29(3) does not deprive the Court of jurisdiction, Mr Fitzgerald understandably relies upon the fact that no alternative remedy is available. That is not a decisive consideration but is relevant in considering the scheme provided by section 51 and whether an order under the section is an order in a matter relating to trial on indictment. Mr Sales draws attention to the avenues of redress open to a detainee subject to a section 51 order. As with an order following conviction under section 37 accompanied by a restriction order under section 41, there are rights to review by the Secretary of State (section 41(6) with section 42(1) and (2)) and by the Mental Health Review Tribunal (section 72 with section 73).

  15. The existence and nature of those post-order remedies does not in my judgment bear upon the question whether the order itself is beyond the jurisdiction of the Court as a matter relating to trial on indictment. While it may be for the benefit of the person detained as well as for the public, it should be treated as an order of the Court with potentially draconian and far-reaching consequences.

  16. The Court has been referred to the decision of this Court, Rose LJ Vice- President presiding, in R v Kingston Crown Court ex p Mason (unreported 27 July 1998). The judge had made a hospital order with a restriction order, under section 51(5), having ordered a verdict of not guilty to be entered. Before the Divisional Court, it was conceded that the judge had jurisdiction to make an order under section 51 and moreover, the hospital order was not challenged. The issue was whether a restriction order should have been made. The Court assumed a jurisdiction in Mason which could of course not be created by concession. There do not appear to have been submissions as to the effect of section 29(3). Mr Sales accepts that the Court should follow Mason in accepting jurisdiction unless the decision to do so was plainly wrong, which Mr Sales submits it was.

  17. The exercise of the power under section 51 may have a profound effect on the liberty of the subject. Orders are made without there being a conviction. Opportunities to obtain the discharge of orders are available but, as is accepted, the position of a person subject to a section 51 order is substantially less favourable than the position of those subject to orders under Part II of the Act, which includes detailed provisions protecting and ameliorating the position of persons detained. Section 51, with sections 37 and 41, appears in Part III of the Act.

  18. In considering an order under section 51 in relation to the provisions of section 29(3) of the 1981 Act, the basic point that sentence follows conviction must be kept in mind. A hospital order (with a restriction order) may not be punishment (R v Birch [1990] 90 Cr App R 78). It may be for the benefit of the patient as well as for the protection of the public but the process is radically different from the ordinary process of trial. It is alien to the trial process. In attempting to apply the principles stated in the cases on section 29(3), it must be recognised, first, there is no readily applicable general test. Secondly, approaching the question on a case by case basis, the present statutory context is different both in concept and in detail from those in the cases referred to.

  19. The section 51 order could be categorised as an order “which decides whether there shall or shall not be a trial” but whereas an order on an abuse of process application (as in Ashton) decides whether there shall or shall not be a trial, an order under section 51 is so alien to any trial process that in my judgment it should not be treated as a matter relating to trial on indictment. Its effect is, as Mr Sales accepts, to transfer the detainee from being an accused to being a mental patient but the order itself cannot in my judgment be treated as part of a trial process. I bear in mind the absence of a remedy alternative to judicial review. That is not only a factor in itself. The absence of that right of appeal which is a customary feature of orders made within a criminal process, illustrates that the order is not a matter relating to trial. Moreover, the risk of delay to the trial if the remedy by way of judicial review is sought is absent.

  20. The further pointer provided by Lord Browne-Wilkinson in Huckfield is in the same direction. The section 51 order does not arise in the issue between the Crown and the defendant formulated by the indictment. It is co-lateral to the indictment of the defendant. It is an entirely different way of dealing with the matter from that by way of trial on indictment. The exception in section 29(3) does not apply. I reach that conclusion on the merits but would in any event regard the Court as bound by Mason as to jurisdiction. I will defer consideration of whether the Court has jurisdiction on the second basis contemplated in Harrow until I have considered submissions on the wording of section 51.

    21. Circumstances in which Order made

  21. It is first necessary to describe what happened when the applicant was made subject to a section 51 order on 12 May 1997 and I do so in order to consider the lawfulness of the section 51 order. I refer to the medical evidence only so far as it is necessary to consider whether it was “inappropriate” to bring the applicant before the Court. I have already expressed my conclusion that, had the applicant been convicted of the offences with which he had been charged, it was open to the judge, on the medical evidence, to make a section 37 order together with a restriction order under section 41.

  22. On 12 May 1997, the agreed medical evidence was that the applicant was fit to plead. In support of her opinion that it was inappropriate to bring the applicant before the Court, Dr Duggan stated:

    23. “Concerning his attendance at court, in his current state, I think that he may be able to remain calm. However, his mental state is changeable and any deterioration would, in my opinion, render him unfit to appear in court. I understand that the court can make a hospital order under section 51 subsections (5) and (6) without Mr Kenneally appearing before the court.”

    That paragraph in a report dated 1 May 1997 appears to be the origin of the application on 12 May.

  23. In a report dated 8 May 1997, Dr Nevison-Andrews stated:

    24. “Whilst at the time of dictation, Mr Kenneally remains apparently fit to plead, I am no more able to predict how he will behave in court when faced with the evidence. Nevertheless, it seems to me that his behaviour is likely to be disturbed in court, particularly during a trial which will last more than a day or two. It appears to me that there is here an issue of Mr Kenneally’s right to a trial, given his insistence he is not guilty of the charges brought against him. … On balance, I am inclined to support the use of section 51, although the issue of Mr Kenneally’s personal rights in this regard are perhaps more a matter for the law than his responsible medical officer.”

  24. Counsel for the applicant, Mr Hughes, raised the possibility of a section 51 order with the judge. The judge immediately asked whether a hospital order could be made in the absence of a conviction. Counsel stated:

    25. “It is the view of both doctors that it is inappropriate to bring Kenneally before the Court under subsection 5 [of section 51] and that the Court can therefore make a hospital order with or without a restriction order without convicting him …”

    Counsel said that he had spoken with the applicant who said that he understood the implications of the course proposed but it might not be appropriate for the applicant to hear any discussion or evidence about it. Counsel suggested that “Your Honour tells him simply in terms if he is brought up that this is what is proposed”.

  25. Counsel for the prosecution, Miss Sheff, stated:

    26. “Your Honour, having separately considered the matter from my learned friend, I have come to exactly the same conclusion as he, which is that if Your Honour is satisfied upon the evidence – and so far Your Honour has the reports of two doctors, both of whom appear to consider that section 51 is appropriate – Your Honour will no doubt hear the evidence of Dr Lorna Duggan confirming that and also confirming her support for a section 41 restriction order … . Although the defendant is here today, the medical evidence appears to suggest that it is inappropriate for him to be tried and therefore, in my view equates with the wording of that section, section 51(5), that it is inappropriate to bring the detainee before the Court, which is effectively what my learned friend is asking and I would certainly support that contention. I have had the opportunity to have a long conversation with the officer, who has of course been interviewing the defendant and had contact with him on various occasions, and he also takes the view that it would be most disruptive to the Court and to the defendant himself if he were brought up to hear the argument and to hear the medical evidence given orally in this case.”

  26. Miss Sheff then, rightly, stated that it was for the judge to decide whether section 51(5)(b) was satisfied. Attention then turned to the general evidence as to the applicant’s mental condition. Dr Duggan gave evidence orally and answered “Yes” to the question whether she had concluded “that it would be inappropriate to bring [the applicant] before the Court under section 51(5)”. Dr Duggan also gave evidence, the accuracy of which is challenged on the applicant’s behalf, as to his past conduct.

  27. Following further discussion, the applicant was brought into Court:

    28. THE CLERK OF THE COURT: John Kenneally, just sit down, thank you.

    JUDGE BROOKS: Mr Kenneally, I understand at the moment you are receiving treatment - is that right?

    THE DEFENDANT: Yes, sir.

    JUDGE BROOKS: That is at – where are you at the moment?

    THE DEFENDANT: I’m at –

    JUDGE BROOKS: St Andrew’s?

    THE DEFENDANT: North St Andrew’s.

    JUDGE BROOKS: That is in Northampton, is it not?

    THE DEFENDANT: Yes, it is.

    JUDGE BROOKS: Well, the position is simply this: I have considered this matter, and I am satisfied that you require further treatment – do you understand?

    THE DEFENDANT: Yes, sir.

    JUDGE BROOKS: So I have made an order to that effect – that you receive further treatment. And is so far as the charges that you face are concerned, those are not being proceeded with.

    THE DEFENDANT: Thank you.

    JUDGE BROOKS: Do you understand that?

    THE DEFENDANT: Yes, I do.

    JUDGE BROOKS: Are you willing to receive more treatment?

    THE DEFENDANT: Yes, I am.

    JUDGE BROOKS: Thank you. Thank you very much.

    MR HUGHES I am very grateful.

  28. The parties have placed before the Court a statement made by His Honour Judge Brooks at the request of the Lord Chancellor’s Department. It deals primarily with a point on the medical evidence not material for present purposes. However, the judge stated:

    29. “As indicated above I have a very clear recollection of this particular case. It was unusual in that the defendant although present in the court building was not present at the substantive hearing. Both defence and prosecuting counsel with the concurrence of Dr Duggan and the agreement of the defendant had sought my leave for the case to proceed in the absence of the defendant.”

  29. Shortly before the hearing in this Court, the applicant made a statement as to what was said between him and Mr Hughes out of court at the time of the May 1997 hearing. Mr Hughes has also made a statement about that, having received apologies from counsel now appearing for the applicant that Mr Hughes was told of the applicant’s statement only very shortly before the hearing. In my judgment, for reasons which will appear, this case does not turn upon what was said between counsel and the applicant out of court and I do not propose to consider that question further.

    30. Construction of section 51(5)

  30. There is no suggestion that it was “impracticable” to bring the applicant before the Court within the meaning of that word in section 51(5)(a). Mr Sales made sustained submissions as to the distinction between preventative measures, which included hospital orders and restriction orders, and penal measures, which were intended to punish. In the context of preventative measures, a broader view could be taken of the word “inappropriate” in section 51(1)(a). In considering whether it was “inappropriate to bring the detainee before the court”, the judge was entitled to have regard to the medical evidence and to rely on the position of the applicant’s counsel, including his assurance that his client had understood the position. Moreover, the evidence suggested that, by reason of his medical condition, the applicant could not have a fair trial within the meaning of Article 6. He might prejudice himself in the eyes of the jury. It is important to construe section 51, so as to allow the Court to deal with the situation which arose in this case. The expression “If it appears to the Court” in section 51(5) gave the judge a broad discretion. The word “inappropriate” should not be construed so as to cover only physical inability to attend court. Indeed, if the judge had made his decision on that basis it would have been a fundamental misdirection.

  31. I am in no way questioning the valuable analysis by Mustill LJ of the provisions of the Mental Health Act 1983 in R v Birch when I conclude that the outcome of this case does not turn upon the precise categorisation of a section 51 order. (For the purposes of the Criminal Appeal Act 1968 a hospital order, with or without a restriction order, is a sentence.) The hospital order, combined with a restriction order, may not be a mode of punishment but the procedures to be followed when such orders are made must recognise the serious and long-term effects upon the liberty of the defendant which may be involved. That is recognised in the procedure provided in the sections themselves and should, in my judgment, be recognised when considering the exceptional and far-reaching power, as I regard it, in section 51. Mr Fitzgerald submits that given well-established procedures for deciding whether or not a defendant is fit to plead, section 51 can be intended to deal only with an extreme situation, one in which a defendant’s condition is such that he could not properly be brought to the Court for a decision as whether he was fit to plead, or to be tried or to be sentenced. There is no doubt that the applicant was fit to plead and, indeed, he was without difficulty eventually brought before the Court to be sentenced. Section 51 could not apply, it is submitted.

  32. In my judgment, the word “inappropriate” in section 51(5) must be construed restrictively. The section must not be used as a routine and easy way of avoiding a potentially troublesome trial. To construe it as “sparing a defendant a trial” is superficially attractive, especially when the outcome of the trial is readily predictable, but there is a public interest as well as that of the defendant himself in the resolution of issues, and especially when the failure to resolve them, as in the present case, may have difficult and long-term implications. It is a shortcut with significant long-term implications. I would not necessarily restrict the word “inappropriate” so as to mean “physically impossible” but a high degree of disablement or relevant disorder must be present. The section does not apply in a situation in which all that is involved is possible inconvenience for the Court and inevitable distress for the defendant and others likely to be concerned in a trial, if a trial is held. The use in the sub-section of the expression “bring the detainee before the Court” rather than, for example, “subject the detainee to a trial” supports a narrow construction. It must be inappropriate to bring him before the Court at all. While there is force in Mr Sales’s submission that the expression must be read as if followed by the words “for the purpose of a legal proceeding” the words on their face do not readily encompass concern about what might happen much later in the course of a trial. Defendants are commonly “brought before a court” when it is not known even whether they are fit to plead.

  33. The circumstances in which the present application has arisen support a narrow construction. It has arisen because of the applicant’s grievance that, when he was seeking a discharge of the hospital order, reference was made to the applicant’s “offence behaviour” and the “issues surrounding his index offence” when he has throughout denied that he committed any offence. The position of an applicant and of a Mental Health Review Tribunal is in the circumstances a difficult one which it is not necessary for the decision of this case to consider in detail but the difficulty presented in this case does in my judgment demonstrate that the power conferred by section 51 was not intended to be a broad one or one generally used. Rather than challenge the decision of the Tribunal, the applicant has taken the more radical step of challenging the original order. No point on delay has been taken at this hearing.

  34. It is clear from the duty imposed in section 51(6)(b) to consider “the depositions” that the Court is entitled to have regard to the evidence in the case in deciding whether to make an order. In the absence of a conviction or a plea of guilty, that too is a difficult task because it is impossible to know whether that evidence would have been accepted. It cannot in my view have been intended to put a Court in that position, save in exceptional circumstances.

  35. To pass sentence, even a sentence one of the objects of which is to assist the defendant, without first convicting him is a drastic step, one that should be taken only in exceptional circumstances. I would be prepared to take a broader view of the word “inappropriate” in the case of a defendant who has been convicted. The distinction is justifiable because the drastic course of doing without a trial has not in such circumstances been followed. Notwithstanding the incorporation of the two situations in the same subsection, the difference between them is so great that a different approach would in my view be justified. In neither case, however, is the fear of embarrassment to the parties, or inconvenience to the Court, normally sufficient justification.

    36. Fitness to plead and Article 6

  36. Shortly after the hearing in the present case, judgment was given in the Court of Appeal Criminal Division (Lord Justice Rose, Vice-President, Presiding) in a case in which the lawfulness of the fitness to plead procedure was considered in relation to Article 6 of the Convention. (R v Moore & ors 5 October 2001). At the invitation of the Court, both parties have made further written submissions on the effect of Moore, for which we are grateful. However, in the event and having regard to the conclusions now reached, the point does not need further consideration in this judgment.

  37. Mr Fitzgerald does not need to rely on jurisprudence specific to Article 6 of the Convention to succeed in this case. I do not accept the submission that to require a defendant who might not do himself justice in court to attend at the hearing is itself a breach of Article 6. The presence of the accused is, save in exceptional circumstances, an important feature of a fair hearing. In considering a summing-up to a jury at a fitness to plead hearing in R v Robertson [1968] 52 Cr App R 690, Lord Parker CJ stated at p 694 that “although [the defendant] suffers from delusions which at any moment might interfere with a proper action on his part, that is not a matter which should deprive him of his right to be tried”. The law provides specific and detailed procedures for determining fitness to plead and what may follow the decision (Criminal Procedure (Insanity) Act 1964 and the Criminal Procedure (Insanity and Unfitness to Plead ) Act 1991. Those procedures are designed to provide appropriate protection for defendants and for the public. I cannot accept the notion that outside those procedures, and even where a defendant is fit to plead, there is a broad power in section 51 to dispense with a conventional trial. The power is a very limited one.

    38. Harrow-Second category

  38. If I am wrong in my conclusion upon the effect of the exception in section 29(3) of the 1981 Act, I would be prepared to hold that the judge’s decision to make an order under section 51 was an act made without jurisdiction and thereby challengeable as being in the second category contemplated in this Court in R v The Crown Court at Maidstone ex p Harrow London Borough Council. I have already cited, at paragraph 13, Mitchell J’s statement about apparent propriety. Mr Sales accepts that there could be a misdirection which was so fundamental as to fall within that category of error which deprived the Court of jurisdiction.

  39. It was the failure, with respect, to have any test in mind, by way of scrutinising what “inappropriate” meant, which was the flaw in the present case. The judge and counsel appear to have taken the view that a section 51 order made without a conviction was a perfectly routine matter provided there was evidence that a trial might cause embarrassment and provided of course that the other requirements of section 51 (as to which I am satisfied) were met. No consideration whatever appears to have been given to the radical departure from ordinary standards involved in sentencing without trial. The judge’s sentencing remarks illustrate that the consequences of what was being done had not been understood. That a section 51 order would be something quite out of the ordinary does not appear to have been considered, save by Dr Nevison-Andrews who foresaw possible implications and added that the issue of the applicant’s rights was “perhaps more a matter for the law than his responsible medical officer”. My reasoning on this issue I regard as running parallel with the reasoning which led me to the conclusion that the decision of the Crown Court was not in a matter “relating to trial on indictment”.

  40. While I would expect Mitchell J’s concept of a “jurisdictionally flawed act”, in a section 29(3) context, to be the subject of further consideration, I would be prepared to hold that the procedure followed was so defective as to render the order quashable for want of jurisdiction. On neither basis can the order be saved by the fact that it was made at the request of the applicant’s counsel.

    41. Awaiting trial

  41. At a very late stage, and following comment from the Bench, Mr Fitzgerald took the further point that the order was unlawful because the applicant had pleaded not guilty and was not therefore a “person awaiting trial” within the meaning of section 51(5). The trial had begun. Mr Sales submits that having regard to the generality of the provision, the concept of “awaiting trial” is an ongoing concept which operates until the trial is complete. Having regard to the purpose of the section, whether broadly or narrowly construed, a distinction cannot sensibly be drawn between a decision before plea and a decision after a not guilty plea, it is submitted. It is not necessary to resolve that issue in the present case.

    42. Order to be made

  42. I do not propose to make an order in this case until the parties have had an opportunity to address the court as to the form of the order and when it should take effect. Submissions in writing have already been made on behalf of the Secretary of State. Any further submissions will be heard when the judgment is handed down and before any order is made. Subject to that, it is not necessary to consider the application for habeas corpus.

    43. Mrs Justice Rafferty DBE:

  43. I have read the judgments of Pill LJ and of Tomlinson J. Like Tomlinson J, and for the reasons he sets out, I prefer to rest my conclusion upon the second of the two routes set out by Pill LJ.

  44. Although sharing the concern of Tomlinson J as to the absence, consequent upon this approach, of an appeal or review of a judicial decision, nevertheless the power conferred by section 51(1) seems to me to allow of a disposal properly described as arising from the trial process.

  45. I am therefore in complete agreement with Pill LJ save that as expressed I limit my approach to the second of his routes.

    46. Mr Justice Tomlinson:

  46. I agree with the judgment of Pill LJ save only that I prefer to rest my conclusion as to our jurisdiction upon the second of the routes discussed by him, jurisdictional error by the Judge in the Crown Court, rather than upon the first. However I also agree with him in thinking that the two routes overlap.

  47. I am not myself persuaded that it can here properly be said that the Crown Court was not in principle exercising its jurisdiction in matters relating to trial on indictment. It is right to say that the Judge did what he did with a view to there not being a trial. To that extent it may be possible to say that the jurisdiction conferred by section 51 (5) is designed to avoid the exercise by the Crown Court of its jurisdiction relating to trial on indictment. But it seems to me that this is not a complete answer to the problem. The jurisdiction relating to trial on indictment extends further than the conduct of the most instantly recognisable features of the trial, such as the swearing-in of the jury, the hearing of evidence, the returning of the verdict and the imposition of sentence. Indeed section 77 (3) of the Supreme Court Act 1981,which is concerned with the period which may elapse between committal for trial and the beginning of the trial, provides that for the purpose of that section “the trial shall be taken to begin when the defendant is arraigned.” Turning to section 51 (5), jurisdiction under that sub-section is itself contingent upon the court having jurisdiction to try or otherwise deal with the detainee.

  48. Jurisdiction to make an order under section 51 (5) in respect of a person who has not been convicted exists only when that person is “awaiting trial.” It seems to me likely that the word “trial” is there intended to refer to what I have already described as the more immediately recognisable features of a criminal trial, beginning, broadly, with the swearing-in of the jury. If that is not right it might be said that the applicant was not awaiting trial and thus that the court lacked the necessary jurisdiction since he had already been arraigned and his trial, or at the very least the trial process, had begun. In order to dispose of this application it is unnecessary to decide this point, although if it is the case that this applicant was not “awaiting trial” that would obviously lend weight to the argument that the particular jurisdiction to deal with an unconvicted person under section 51 (5) does not relate to trial on indictment.

  49. On the assumed footing however that the Court did not lack jurisdiction on that basic ground I am uncomfortable with the notion that the jurisdiction conferred by section 51 (5) should not be regarded as an integral part of the jurisdiction of the Crown Court in matters relating to trial on indictment. On this basis it seems to me that the power to proceed under section 51 (5) is properly to be understood as one of the incidents of the jurisdiction of the Crown Court in matters relating to trial on indictment. A disposal under section 51 (5) is one of the possible outcomes of the trial process.

  50. I am nonetheless satisfied that this court has jurisdiction to quash the order made by Judge Brooks on the basis that the learned Judge misdirected himself as to the proper test to be applied under section 51 (5). Mr Sales accepted, as I understood him, that if the proper test to be applied under section 51 (5) relates to the practicability or appropriateness of bringing the detainee before the court at all, i.e. for any purpose, and if further this court is satisfied that the Judge failed to apply that test but rather applied a different test, i.e. one which related to the practicability or appropriateness of conducting a trial in the presence of the detainee, then that is a misdirection of sufficient gravity to amount to a jurisdictional error of the type said by this court in R -v- Crown Court at Maidstone, ex parte Harrow London Borough Council [1999] 3 All E R 542 to take the case outside the scope of the jurisdiction of the Crown Court in matters relating to trial on indictment. In my judgment the learned Judge did misdirect himself in this manner essentially for the reasons already given by Pill LJ.

  51. I am conscious that my conclusion means that, in a case where no relevant jurisdictional error can be detected, there is simply no avenue of appeal or review so far as concerns the quality of the decision made by the Crown Court pursuant to section 51 (5). Mr Sales submits that that is not a matter for surprise or concern bearing in mind the procedures available pursuant to which the making of a hospital order and a restriction order may be reviewed by the Secretary of State and by the Mental Health Review Tribunal. However the present case demonstrates that those procedures are insufficient protection, since the Secretary of State and the Mental Health Review Tribunal have consistently treated as a factor telling against the applicant’s release his failure and refusal to admit his guilt of offences of which he has never been convicted. Pill LJ has already set out the exchange which took place when this applicant was brought into court at the conclusion of the discussion between the Judge and Counsel, and after psychiatric evidence had been given by Dr Duggan. Pill LJ has also adverted to the difficulties in the task of the Mental Health Review Tribunal, particularly in the current circumstances, but it is to my mind offensive to any notion of justice that it should be regarded as a factor relevant to the question whether the applicant should be released from hospital that he has not admitted his guilt of the offences, charges in respect of which he was told were not being proceeded with and in respect of which no jury has ever been asked to consider whether he did the acts complained of. In such circumstances it is not sufficient that there is available the uncertain remedy of judicial review of the decision of the Secretary of State or of the Mental Health Review Tribunal. I regard it as a serious shortcoming in the procedure that, if I am correct, there exists no direct avenue whereby the quality of the initial decision may be examined on appeal or review, and the manner in which this applicant has been treated demonstrates the need for such a direct avenue.

  52. I should add that it seems to me anomalous that the Crown Court should have and should exercise a jurisdiction affecting the liberty of the subject which apparently admits of no direct right of appeal or review.

  53. Nothing that I have said in this judgment is intended to express any view as to the propriety of this applicant’s detention or continued detention under section 3 of the Mental Health Act. Save to the extent indicated, which does not affect the outcome of the application, I am in complete agreement with Pill LJ.

    54. - - - - - - - - - -

    LORD JUSTICE PILL: The judgment of the court is handed down. Mr Sales, do we have jurisdiction to suspend a discharge? order? PRIVATE 

    MR SALES: My Lord, having looked into the matter I think your Lordships would, but it does not arise on this occasion because your Lordships were kind enough to indicate that the hospital could see the draft judgment in advance. So they have been put on notice I am told today by the solicitors attending on behalf of the hospital. They are all set to move into action as soon as your Lordships make the order.

    LORD JUSTICE PILL: If I may say so, I commend them on that. The right steps have been taken here, and indeed the applicant's advisers have tried to co-operate in that.

    MR SALES: For our part, if I can speak for the hospital on this occasion, they are grateful that your Lordships gave them leave to see the judgment.

    LORD JUSTICE PILL: So you are content that a discharge order be made forthwith?

    MR SALES: I am.

    LORD JUSTICE PILL: Mr Bowen.

    MR BOWEN: I am obliged, my Lords. I would only then ask for an order that the defendants pay the claimant's costs and that there be a detailed assessment of the claimant's costs.

    MR SALES: I do not resist that, my Lord.

    LORD JUSTICE PILL: I should tell you that several points arise on your skeleton argument. Both members of the court are in difficulty with other commitments. In view of the points raised, the question of whether the action should proceed in its present form, whether leave should be given to join another party and whether we should certify and grant leave, these are matters that are going to take a little time, are they not?

    MR SALES: I certainly would be asking my Lords to certify and grant leave. I am not sure what my learned friend's position is on the continuation of the action. It is true that he has a Human Rights Act damages point. But as I understand it my Lords' judgment dealt with this matter purely on a domestic interpretation of the Mental Health Act, not specifically on human rights points. In any event my learned friend would have -- we would ultimately submit it is a matter for my learned friend; insuperable difficulties in the face of section 9(3) of the Human Rights Act.

    LORD JUSTICE PILL: That may be. What we are minded to do, and I have indicated the reason, is to - and I hope it does not inconvenience the parties - have a further hearing on Friday morning at quarter to ten. Another point is you might like a little time to consider that. On our first view we do not regard it as straightforward, Mr Bowen, as to the course which should be followed in relation to the action. So we will take that course.

    Would either of you have any objection to a two-judge constitution on Friday? Mrs Justice Rafferty is in Manchester and I know it would be difficult for her to be here on Friday.

    MR SALES: Might it assist if -- I have already handed to my learned friend the two points of general public importance. We would ask the court to certify. If I simply arrange for those to be handed up now.

    LORD JUSTICE PILL: We were handed it as we came in.

    MR SALES: So the court has that on the file. Those will be the points I will be speaking on.

    LORD JUSTICE PILL: Mr Bowen, I expect you will want to be here. But, Mr Sales, if you are in difficulty, as long as someone is here on your side.

    MR SALES: I think I should be able to be here.

    LORD JUSTICE PILL: So the order of the court will be that the appeal is allowed and a discharge order forthwith. The applicant will have the costs of the action.

    MR BOWEN: My Lord, just on the wording of the order, of course there were three sets of proceedings in respect of the judiciary, the habeas corpus and the appeal. Given the judgment of the court, perhaps the order should be that there be a quashing order.

    LORD JUSTICE PILL: I was for a moment in the wrong jurisdiction. It is application granted; it is not an appeal at all.

    MR BOWEN: And the decision of the crown court judge be quashed.

    LORD JUSTICE PILL: The hospital order quashed. The section 51 order quashed; that is quashed.

    MR SALES: My Lord, I agree with that.

    LORD JUSTICE PILL: Thank you. 9.45 on Friday.

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