Case No: CO/9451/2005
Neutral Citation Number: [2005] EWHC 3016 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 21st December 2005

Before :

THE RIGHT HONOURABLE LORD JUSTICE HOOPER
And
THE HONOURABLE MR JUSTICE GROSS
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Between :

	FLUTURIM HASANI	Claimant	
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	BLACKFRIARS CROWN COURT	Defendant	

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(Transcript of the Handed Down Judgment of
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Mr Rajiv Menon for the Claimant
Mr Jeffrey Pegden QC and Mr James Dawes for the Defendant

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Judgment

Lord Justice Hooper : 
1.	This is the judgment of the Court.
2.	The question of law which arises in this case is:
If an accused person is found to be unfit to plead under section 4 of the Criminal Procedure (Insanity) Act 1964 (“the Act”) but becomes fit to plead before he is dealt with under section 5, is the court nevertheless required to follow the procedures in sections 4A and 5? 
3.	His Honour Judge Samuels QC held that the court was not so required. In his ruling the judge said:
“This case, as is obvious from the lengthy period during which it has been before this court, has a long and chequered history.  I do not propose in my observations today to set that history out with any degree of particularity.
Suffice it to say that in one indictment, Mr Hasani is alleged to have wounded a perfect stranger, Drew Laurence Reed, with intent to cause him grievous bodily harm on the 15th August 2004, that being an offence contrary to section 18 of the Offences Against the Person Act.  And similarly, assaulting another stranger contrary to section 47 of the Offences Against the Person Act on the same occasion; and having an offensive weapon on that occasion.  And in a separate incident which took place on 11th May 2004, Mr Hasani was charged with assaulting another stranger, contrary to section 47 of the Offences Against the Person Act.
Following a series of hearings before this court in which a number of psychiatrists were saying that Mr Hasani was incapable of understanding the nature of the proceedings which he faced, it was ultimately decided before me on the 29th July this year that Mr Hasani was unfit to plead.
That was in the light of unchallenged medical evidence, and I determined under section 4 of the Criminal Procedure Insanity Act 1964, as amended by section 22 of the Domestic Violence Crime and Victims Act 2004, that the defendant was unfit to be tried.  That welcome modification in the law, which came into force in April of this year, avoided what would otherwise have been the procedural requirement that the issue of unfitness, notwithstanding the unanimity of view at the time held by the doctors who had seen Mr Hasani, had to be tried by a jury.
That left open for determination the issue of whether the defendant did the relevant acts.  That issue had to be determined by a jury, and I gave directions on the 29th July as to the way ahead.  I directed that the defence should by a specific date notify the Crown by letter as I gave directions on the 29th July as to the way ahead.  I directed that the defence should by a specific date notify the Crown by letter as to which, if any, of the prosecution witnesses in both indictments were required to give evidence in person in the issue of whether the defendant had done the relevant acts.
On the 12th August, I gave further directions; and on the 19th August, I authorised joinder of both indictments, there being no opposition to that course on the part of the defendant who was present.
On 22nd August, counsel then representing the defendant agreed that it would not be appropriate to challenge any of the evidence that the Crown intended to adduce, and the evidence was indeed read from Mr Johnson, Mr Reed and Mr Bailey.  The defendant did not give evidence and called no evidence; and the jury, which had been empanelled for the purpose of determining whether the defendant did the acts in question, found unanimously that he did.
At the conclusion of that hearing on the 22nd August, I was asked to adjourn the issue of disposal until 16th September, to enable the defence to obtain up to date evidence from Mr Hasani’s treating doctor.
On 16th September, Mr Menon, representing this defendant as he has done today, sought to persuade me that given the view of the treating doctor, Dr Mezey, that Mr Hasani was in her view now fit to plead and to be tried, that the way forward was to grant Mr Hasani an absolute discharge by way of disposal.
That, given the background which I have summarily sought to identify, seemed to me an inappropriate way ahead.  And I invited the Crown to consider whether or not either further psychiatric evidence was to be obtained by the Crown to challenge the views expressed by Dr Mezey, or as to the way ahead.
On 14th October, Mr Dawes, appearing for the Crown as he does today, submitted that the way ahead – given the defendant’s apparent recovery of his ability to be tried and comprehend what was in issue at the trial, and accordingly apparently satisfying all the relevant tests in In Re Imrie Pritchard – the right way forward was for the defendant to be arraigned.  I accepted those submissions.  The defendant was not arraigned; the defendant was ordered to be arraigned at a plea and case management hearing fixed to take place on Friday of this week, the 11th November.”
4.	It is the order that the defendant be arraigned which is the subject matter of this challenge by way of judicial review. In the light of the application for permission to apply for judicial review, the case is now listed for 13 January 2006.
5.	There is no dispute that if the claimant is fit to plead, he can be tried in the ordinary way (section 5A(4), which we set out below in paragraph 10, does not, it is agreed,  affect this issue).  On behalf of the claimant, Mr Menon succinctly submits that the court is nevertheless required to make an order under section 5(2) and he further submits that the appropriate order would have to be an absolute discharge given that the claimant no longer has a mental condition.  Given the nature of the offences, it is not surprising that the judge found that result “inappropriate”.
6.	We turn to the statutory provisions. The preamble to the Act states, in part:
“An act to amend… and the procedure for determining whether an accused person is under a disability such as to constitute a bar to his being tried.”

7.	Section 4 now reads:
“(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say under any disability such that apart from this Act it would constitute a bar to his being tried.
(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.
(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.
(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by the court without a jury.
(6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.”

8.	Section 4A now reads:
2(1)  This section applies where in accordance with section 4(5) above it is determined by a court that the accused is under a disability.
(2)  The trial shall not proceed or further proceed but it shall be determined by a jury – 
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence
(3)  If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or mad either omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
(5) …”
9.	Section 5 (1) and (2) now read:
(1) This section applies where –
…
findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2) The court shall make in respect of the accused –
a hospital order (with or without a restriction order0;
a supervision order; or
an order for his absolute discharge.”

10.	Section 5A (4) reads:
“Where –
(a)  a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 5(1) (b) above, and 
(b)  the court also made a restriction order, and that order has not ceased to have effect,
the Secretary of State, if satisfied after proper consultation with the responsible medical officer that the person can properly be tried, may remit the person for trial either to the court of trial or to a prison.”
11.	Section 5A (6) reads:
“In relation to the making of an order under subsection (2)(c) above, section 12(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (absolute and conditional discharge) shall have effect as if –
(a)  the reference to a person being convicted by or before a court of such an offence as is there mentioned included a reference to the case where section 5 above applies; and
(b)  the reference to the court being of opinion that it is inexpedient to inflict punishment included a reference to it thinking that an order for absolute discharge would be most suitable in all the circumstances of the case.”
12.	Mr Pegden QC rightly points out the practical consequences if Mr Menon is right.  In this case the judge would probably have to make an order for absolute discharge albeit given that the claimant is fit to plead such an order would hardly be “most suitable in all the circumstances of the case.”  Mr Pegden also rightly points out that the section 4A procedure, which sometimes takes some considerable time, would have to be followed even though the accused person is clearly fit to plead.  Mr Menon does not disagree but merely insists that the use of the word “shall” in sections 4A(2) and 5(2) shows that the court must continue with the procedures therein laid out even though the accused person is fit to plead.
13.	Mr Pegden submitted that we should interpret both subsections as if, after the word shall, were to be found such words as “so long as the accused is unfit to plead.”  We do not think that it is necessary to adopt this submission quite in that form.  
14.	We think it is sufficient to say that the sections 4A and 5 procedures are inapplicable if, following a further section 4 hearing, the court has found the accused person fit to plead, a finding which, according to section 4(6) cannot be made “except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved”.  That second finding obviates the need to continue with the sections 4A or 5 procedures.  The solution we have adopted avoids the unfortunate practical consequences to which Mr Pegden averted and yet is consistent with the policy behind these provisions that a person who is unfit to plead should not have to face trial.  To require a jury to decide whether an accused person did the act or made the omission charged against him when he is fit to plead and play his part in criminal proceedings would, in our view, be a quite absurd waste of time and money.  Likewise for a judge to  make an order for a person’s absolute discharge after he had been found to have done the act charged (particularly in a serious case) even though he is fit to plead would be quite absurd and risk bringing the criminal justice system into disrepute. The construction which we have adopted is consistent with the well-known rule of statutory interpretation that, if it is possible, the provisions of an Act must be construed so as to give them a sensible meaning.  Furthermore the construction which we have adopted fits in with section 4, the provisions of which do not preclude a second hearing.
15.	In the light of our conclusions, we quash the order made by His Honour Judge Samuels QC only because he has not held a second section 4 procedure (and indeed was not invited to do so).  It is important that the procedure be followed even though the outcome seems clear. Having quashed the order we remit the case back to His Honour Judge Samuels QC (or another judge) with a direction to hold a second section 4 hearing (which may only be a formality).  If the judge finds the claimant to be fit to plead, then the judge will make the necessary order for the claimant’s arraignment. If the judge makes no such finding (which seems unlikely) the first finding continues in force and the judge will then have to continue with the section 5 procedures and make the appropriate order under section 5(2).