England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/07/2007

Lord Justice Hughes :

1. This application for judicial review concerns the meaning and ambit of section 37(3) Mental Health Act 1983 when an accused in the Magistrates' Court contends that he was insane at the time of the events charged.
2. The Police were called to the home of Mr Surat Singh. They found him in an excitable and aggressive mood. He punched one police officer in the face. He kicked the other, causing him to fall into some bushes. He was arrested and taken to the police station. There, the doctors who saw him found a clear degree of cognitive impairment and discovered that there was a long history of some level of schizophrenic symptoms. He was in his late forties and had no previous conviction.
3. Mr Singh was charged with the summary offence of assaulting a police officer in the execution of his duty, contrary to s 89 Police Act 1996. There was a comparatively lengthy series of hearings. He pleaded not guilty. He formally admitted the facts which I have set out. His solicitor indicated that the defence of insanity would be advanced. She served a report of a psychiatrist approved under s 12(2) Mental Health Act which expressed the opinion that at the time of the incident he was labouring under such defect of reason from a disease of the mind as not to know the nature and quality of his act. It was not suggested that Mr Singh was unfit to stand trial.
4. The District Judge before whom the trial came on 12 April 2006 adjourned it of his own motion for a second psychiatric report. He did so with a view not to investigation of the issue of insanity, but to proceeding under section 37(3) Mental Health Act 1983, that is to say in order to consider making either a hospital or guardianship order without convicting the accused. On 10 May 2006, the District Judge declined to change that decision.
5. Mr Singh has applied for judicial review of that decision. He contends that the magistrate was obliged to proceed to verdict. The proceedings in the magistrates' court stand adjourned pending the resolution of his application.

Jurisdiction

6. In general terms this court will not entertain, whether by application for judicial review or by way of appeal by case stated, a purely interlocutory challenge to proceedings in the magistrates' court. Lord Widgery CJ put the point thus in R v Rochford Justices ex p Buck (1978) 68 Cr App Rep 114, in which the Crown complained that the magistrates had wrongly excluded relevant evidence:

"It is very unsatisfactory in this Court to be asked on an application for a prerogative order to deal with proceedings in a lower Court which have not run their course and which are still ending so the that application is in respect of an interlocutory matter…

I think that the right course here would have been for the prosecution to go on with their case, accepting with good grace the justices' decision, and then, if at the end the prosecution failed, they could come here on a case stated and we should have a firm basis of fact on which to decide the issues…

The obligation of this Court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings."

The position is the clearer in an appeal by case stated, because it has been held that the right to ask for a case to be stated does not arise until the proceedings in the court below have resulted in a final determination: Loade v DPP [1990] 1 QB 1052.

7. This point was not taken before us, and we have not heard argument upon it. We nevertheless should draw attention to the general rule, because it is important that proceedings in a magistrates' court should not be punctuated by expeditions to this court when one or other party is the object of a ruling which it does not like. It is necessary, in nearly every case, to wait until the end result of the proceedings is known before anyone can tell whether there is a source for complaint or not, and also before the facts of the case can reliably be known for the purposes of decision here.
8. We were persuaded that we should deal with the point which arises in this case because

i) over a year has now passed in which the magistrates' court proceedings have been at a standstill; any further delay is highly undesirable;

ii) the parties were both ready to argue the issues and anxious that they should be resolved;

iii) the case does not depend on any dispute of fact;

iv) the substantive application of Mr Singh is for a mandatory order requiring the magistrate to conduct a trial, which it is contended he is declining to do.

This court has sometimes been persuaded to consider a case which is interlocutory where there is good reason for doing so: see for example R (Watson) v Dartford Magistrates Court [2005] EWHC 905 (Admin) and the discussion in Essen v DPP [2005] EWHC 1077 (Admin). That we have been persuaded to do likewise should not be taken as any encouragement to others minded to launch interlocutory applications; they are very likely to be dismissed out of hand. Indeed in this case, had the point been spotted earlier, we take the view that this application would have been likely to be regarded as premature because, as will be seen, it is not yet clear whether there will or will not be a trial of the issue of insanity, whether to verdict or otherwise.

Section 37(3) Mental Health Act

9. Two statutory provisions are at the centre of this case: s 37(3) Mental Health Act 1983, and s 11 Powers of Criminal Courts (Sentencing) Act 2000.
10. Section 37(3) Mental Health Act 1983 provides as follows:

"Where a person is charged before a magistrates' court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case as being a person suffering from mental illness or severe mental impairment, then if the court is satisfied that the accused did the act of made the omission charged, the court may, if it thinks fit, make such an order without convicting him."

The 'order under subsection (1)' which is there referred to is either a hospital order or a guardianship order. They are available to magistrates in any case where the offence carries imprisonment on summary conviction, providing that the necessary medical evidence required by subsection (2) is present, and providing (as required by subsection 2(b)) that the court is of opinion that such an order is the most suitable method of disposing of the case.

11. Section 11 of the Powers of Criminal Courts (Sentencing) Act 2000 provides:

"If, on the trial by a magistrates' court of an offence punishable on summary conviction with imprisonment, the court –

(a) is satisfied that the accused did the act or made the omission charged, but

(b) is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined,

the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him."

It will be seen that subsection (a) repeats exactly the words used in section 37(3) of the Mental Health Act, viz 'satisfied that the accused did the act or made the omission charged'. Section 11 therefore contemplates a section 37(3) case, in which the possibility of a hospital or guardianship order without conviction is being considered, and provides for adjournment for medical examination and report to inform the decision.

The issues

12. The history gives rise to the following issues in this court:

i) Was the District Judge's order adjourning with a view to order under s 37(3) Mental Health Act wrong because it deprived Mr Singh of a trial and verdict to which he was entitled ?

ii) Is the defence of insanity in any event available to an accused in the Magistrates' Court ? It was not contended before the District Judge that it was not, but the Crown Prosecution Service, as interested party in this application, now so submits.

iii) What is the nature and extent of the powers of a Magistrates' Court under s 37(3) ?

It will be apparent that it is sensible to approach these questions in the order (ii), (iii) and then (i).

Insanity in the Magistrates' Court.

13. The argument of the Crown Prosecution Service that insanity is not available as a defence in the Magistrates' Court runs like this:

i) Insanity goes to negative mens rea.

ii) The decisions of the Court of Appeal in Attorney General's Reference No 3 of 1998 [2000] QB 401 (an insanity case) and of the House of Lords in R v Antoine [2001] 1 AC 340 (a case of unfitness to plead) establish that when in such cases in the Crown Court the question is investigated whether the Defendant did the act or made the omission charged, the court is not concerned with the state of mind of the accused. Thus lack of intent, or provocation, or diminished responsibility, are irrelevant to the question.

iii) The procedure examined in those cases does not apply in the Magistrates' Court. Rather, section 37(3), taken with section 11 Powers of Criminal Courts (Sentencing) Act 2000, provides a comprehensive code for dealing with every case in which the defendant in the Magistrates' Court is suffering from mental illness. The fact-finding exercise required by section 37(3) will by analogy with these cases be limited to the act or omission charged and does not extend to the state of mind of the accused.

iv) Since that is the limit of the decision required for the application of section 37(3), insanity can no longer be in question in a magistrates' court.

14. I have no doubt that that argument is wrong. Insanity can be relied upon in the Magistrates' Court. If established, it prevents conviction. Whether it always entitles the accused to acquittal is another matter.
15. Insanity was recognised as a defence long before any statutory intervention. Two early examples are Arnold's Case (1724) 16 St Tr 695, where the defendant shot Lord Onslow and alleged (unsuccessfully in the end) that he was mad at the time, and Hadfield's Case (1800) 27 St Tr 1281 where the defendant tried to assassinate King George III and was acquitted on grounds of insanity. What constituted insanity was debated until resolved by the well known decision in M'Naghten's Case (1843) 10 Cl & Fin 200. But insanity was thus recognised as a defence to criminal liability at common law.
16. Independently of the existence of the defence, statute has from time to time intervened to control the consequences of its being successfully advanced. These statutory provisions have all related to proceedings upon indictment. The Criminal Lunatics Act 1800 provided for a "special verdict" of acquittal by reason of insanity, and for an order for custody during His Majesty's pleasure to follow. The Trial of Lunatics Act 1883 altered the special verdict to one of 'Guilty but insane', but provided that it should be returned only if the it appeared to the jury that the defendant did the act or made the omission charged. The same indefinite detention followed. Eighty years later the Criminal Procedure (Insanity) Act 1964 restored the form of the special verdict to one of 'Not Guilty by reason of insanity', but the Trial of Lunatics Act remains in force and the special verdict remains one available only where the act or omission charged was proved to the jury's satisfaction; the 1964 Act once again left the same consequence of indefinite detention, now in special hospital, to follow. Lastly, the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004 have extended and amended the powers of the Crown Court as to disposal where a special verdict is returned, and that court may now make not only a hospital order with restriction, but also such an order without restriction, a supervision order, or an order for absolute discharge. None of those provisions affected the existence of the defence of insanity; they provided only for the form of special verdict upon trial on indictment and for the consequences if it should be returned. It will be seen that since 1883 the special verdict has been available only if (i) the accused was insane at the time but (ii) he is found to have done the act or made the omission charged.
17. What the court decided in Attorney General's Reference No 3 of 1998 [2000] QB 401 was that if (on trial on indictment) insanity is established and the question is whether the accused did the act or made the omission charged, the court is not concerned with any mental element in the offence, but only with what is conveniently called the actus reus. That is because if insanity be established the accused by definition has insufficient mental state for the offence. There is some debate about the extent of what is included in the actus reus but that is not a concern in this case.
18. Separate statutory provisions have been introduced in modern times to deal with the case of an accused who is unfit to stand his trial on indictment in the Crown Court. They are now to be found in the Criminal Procedure (Insanity) Act 1964, as amended. They also provide for the determination, in such a case, whether the accused did the act or made the omission charged. There is thus a similar fact-finding exercise in such a case to the one inherent in the return of a special verdict where the accused is fit to be tried but was insane at the time of the alleged offence. In a case of unfitness to plead, the issue of insanity at time of offence cannot arise because, ex hypothesi the accused cannot be tried.
19. What the court decided in R v Antoine [2001] 1 AC 340 was that a similar approach should be taken in a case of unfitness to plead to that in the case where insanity is in issue. Once one gets to the fact-finding determination whether the act was done or the omission made, the state of mind of the accused is not relevant. This case has no bearing at all on the issue of insanity or upon when a defence of insanity may be advanced.
20. I am quite unable to see how either of these cases can justify the proposition that insanity may not be advanced as a defence to a summary charge in the Magistrates' court. Neither judgment concerned itself with that court. Nor is it accurate to say that either case "removes proof of mens rea" from a case where insanity is in issue. On the contrary, insanity, where established by an accused, usually operates to show that he did not have the state of mind necessary for commission of the offence. These cases show that, in the procedure provided for trial on indictment, it is only when insanity is once established, and one moves on to the determination whether the act or omission charged was done or made, that the state of mind of the accused is irrelevant.
21. In R v Horseferry Road Magistrates Court ex p K [1996] 3 WLR 68 at 80 this court gave careful consideration to the availability of insanity in the Magistrates' court and reached the clear conclusion that it is indeed available. Its reasoning traces the defence of insanity at common law back beyond the first statutory intervention by the Criminal Lunatics Act 1800 and shows that as early as Hawkins' Pleas of the Crown (3^rd edition 1739), "idiots and lunatics" who were incapable through mental illness of distinguishing good from evil were not regarded as punishable "by any criminal prosecution whatsoever". Trial before Justices was of course well established at that time, if not for indictable offences. In DPP v H [1997] 1 WLR 1406 at 1409 this court reached the same general conclusion as in ex p K, although the particular offence before it was one of strict liability to which insanity was said to be irrelevant. We are not here concerned with that latter issue.
22. I reach the same conclusion. There is no reason whatever why insanity should be excluded from the consideration of the Magistrates' court and every reason why it should not. It is a common law defence. If established by the accused in a case to which it is relevant, it prevents conviction. Nothing in Attorney General's Reference No 3 of 1998 [2000] QB 401 or R v Antoine [2001] 1 AC 340 alters that.
23. It is no doubt true that s 37(3) Mental Health Act, taken with s 11 of the Sentencing Act, establishes a coherent scheme for dealing with most defendants in the magistrates' court who are suffering from mental illness when they appear. But neither separately nor together can these statutory provisions bear on the question of whether insanity is a defence to a charge brought in a court of summary jurisdiction. They do not begin to say that they do, and so radical a change in the law would require express provision. Quite apart from anything else, these sections can only apply to a defendant who is mentally ill when he appears before the court. Only in such a case can a hospital or guardianship order possibly be in question: see section 37(2)(a). The sections cannot apply to a defendant who was sufficiently ill mentally to have been insane at the time of the commission of the alleged offence, but who has since recovered fully, perhaps through treatment. Such a defendant cannot possibly have a legal defence to the charge removed by sections of statute which can have no application to him.
24. To say that insanity is a defence which, if established by the accused, prevents conviction, begs the question what powers the Magistrates' court has in such a case, and does not determine whether the accused is inevitably entitled to acquittal. There is no statutory procedure for a special verdict in the Magistrates' court. It is necessary to turn to section 37(3) and to determine its ambit.

The ambit of section 37(3)

25. Just as there is no statutory provision for a special verdict of not guilty by reason of insanity in a magistrates' court, so also there is no statutory procedure for the trial of the issue of fitness to plead. The plain statutory scheme is that section 37(3) is sufficiently flexible to cater for both situations (which may of course overlap) and, it may be, for others. The natural reading of section 37(3) is that it provides the magistrate with the power, in an appropriate case, to abstain from either convicting or acquitting, but instead to make a hospital or guardianship order.
26. The difference between the parties on the ambit of section 37(3) is in the end quite small, but significant. It is common ground that a hospital or guardianship order may be made in a case such as this, if the conditions for it are met. In this court (although not so far as I can see below), the Crown Prosecution Service has accepted it may be made following acquittal. But whereas the prosecution contends that it may be made without acquittal, Mr Singh contends that even if it is made, he is also entitled to acquittal.
27. For Mr Singh, Mr Murphy submits that whilst the power may exist in other cases to make such an order without acquittal, it cannot be exercised where insanity at the time of offence is in question. In such a case, he submits, the accused, if he establishes insanity, is entitled to unqualified acquittal. Mr Murphy accepts, however, that section 37(3) gives the magistrates power to make a hospital or guardianship order following acquittal. That, he accepts, follows from the words 'without convicting him'. His contention is that those words mean, in an insanity case, 'despite acquitting him'.
28. His submission is this. In an insanity case the court must conduct the trial, and must if insanity is established by the accused pronounce an unqualified acquittal, there being no special verdict available. What the court should do is to enquire first into whether the act/omission was done or made. If not satisfied of that, it will acquit. If satisfied of this, it should hear the evidence on the question of insanity. If at any stage it thinks a section 37(3) order may be appropriate, it may adjourn to give proper opportunity for any necessary medical or other evidence to be obtained. Then it may either first pronounce unqualified acquittal and immediately thereafter make a hospital or guardianship order, or it may do those two things the other way round.
29. Mr Murphy contends that the entitlement to a trial and, if insanity be established, to a verdict of unqualified acquittal follows from section 9 Magistrates Courts Act 1980. That provides:

"(1) On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not guilty.

(2) The Court, after hearing the evidence and the parties, shall convict the accused or dismiss the information.

(3) If the accused pleads guilty, the court may convict him without hearing evidence."

That section deals with how the trial is to be conducted if it occurs. It does not deal with what may happen without a trial. Mr Murphy agrees that sometimes a trial may not take place. One example is that of a defendant who cannot understand what is going on, or give instructions. Mr Murphy accepts that in such a case the court has power under section 37(3) to make a hospital or guardianship order without conducting a trial. True it is that in that sort of case a trial may follow if the accused subsequently recovers. But that illustrates the limits of section 9. The court also has power, Mr Murphy accepts, to adjourn a trial sine die in an appropriate case, unusual though this would be. I would add that although it is very rarely justified, the court also has power to stay for abuse of process. In none of those examples does section 9 impose a duty to conduct a trial. Section 37(3) was enacted in the knowledge that section 9 existed. It is quite clear that it provides another case in which the court can, if it be right to do so, decline to conduct a trial. I can see no reason in section 9 for saying that an insanity case is outside the ambit of section 37(3).

30. A further suggested reason for the entitlement to acquittal is that without it the defendant would have on his record something which amounts to a conviction. We have been taken to section 1(4) of the Rehabilitation of Offenders Act 1974. So far as material it provides that for the purposes of that Act 'conviction' includes a finding that a person has done the act or made the omission charged, except where that finding is accompanied by a finding of insanity. I agree that that means that a section 37(3) order, made without trial of the issue of insanity, would not be caught by the Rehabilitation of Offenders Act, and would have no rehabilitation period. But that Act does not make a finding of fact associated with a finding of insanity a conviction for any purpose other than to allow the defendant to attain statutory rehabilitation from it. A section 37(3) order, if made without conviction and without trial of the issue of insanity, brings no disqualification or penalty consequent on conviction, for the very good reason that it is, by the terms of the section, made without convicting the defendant. A defendant in whose case such an order had been made could answer the question 'Do you have any conviction ?' with 'No'. I agree that such a finding of fact might well figure on any personal antecedent history if the defendant were to appear subsequently in court for something else. But so do several events which are not convictions. And there is no reason why it should not. It might be relevant to disposal next time, whether by way of medical or penal order, including for example if a sentence of imprisonment for public protection had to be considered. I conclude that the terms of the Rehabilitation of Offenders Act provide no reason for holding that an accused has an absolute right to trial on the issue of insanity. It is, further, established law that a finding of fact that the act/omission has been done/made is not a finding by way of criminal process, nor is the consequent order, whatever it may be, a penal one: R v H [2003] 1 WLR 411.
31. For the same reason, as that case holds, the making of such an order is not a breach of Article 6 ECHR. Mr Murphy, whilst accepting that that is the law, nevertheless contends that to decline to try the issue of insanity with a view to acquittal is a breach of Article 6. That cannot however be right. If there is no breach in treating defendants charged on indictment by way of special verdict and a consequential order which often involves indefinite detention, there cannot be a breach in achieving the same result, with less draconian consequential order, by less formal machinery in the magistrates' court.
32. Mr Murphy relies upon R v Lincolnshire (Kesteven) Justices ex p O'Connor [1983] 1 WLR 335. In that case the defendant appeared unfit to be tried and was unable to give consent to summary trial of an either-way offence. The justices thought that for that reason they had no power to employ the then equivalent of section 37(3) – s 60(2) Mental Health Act 1959 - and had to proceed as examining magistrates. This court held otherwise. This was a case in which those representing the defendant wanted a hospital order to be made in his interests and the medical evidence was unanimous. In giving the judgment Lord Lane CJ said this:

"In our judgment the words of section 60(2) are clear. It gives the justices power in an appropriate case to make a hospital order without convicting the accused. No trial is therefore called for. The circumstances in which it will be appropriate to exercise this unusual power are bound to be very rare, and will usually require, as in this case, the consent of those acting for the accused if he is under a disability so that he cannot be tried."

Plainly, since in that case everyone wanted a hospital order made, the court did not have to apply itself to what should happen if they did not. The consent of representatives is in any event of necessarily limited significance if the accused is unfit to give instructions or receive advice. I agree that the submission of such representatives, or of the accused if he is in a state to make decisions, is a factor of considerable importance. I am however unable to accept that either the accused or his representatives should be invested with what is in effect a veto upon the exercise of the power.

33. The flexibility of the section 37(3) procedure was emphasised by this court in R(P) v Barking Youth Court [2002] 2 Cr App Rep 294. That was a case of apparent unfitness to stand trial rather than of alleged insanity at the time of the offence, but the same principles seem to me to apply. This court held that the magistrates ought not to have embarked upon a trial of the issue of fitness to plead, as would be done in the Crown Court. There was no necessity for the determination of that issue. Instead they should first have determined the factual question whether the accused had done the act or made the omission charged, and then have considered whether a section 37(3) order might be appropriate, and obtained reports for the purpose. That demonstrates that the making of a section 37(3) order need not be predicated on the determination of the issue of fitness to plead but may be based more broadly upon the mental state of the accused, providing that the acts/omissions are proved. Similarly, in CPS v P [2002] EWHC 946 (Admin), which was another case of alleged unfitness to stand trial, this court held that such an issue ought not to be tried as a freestanding issue on an application to stay for abuse of process. I do not say that it will never be right to decide that the issue of insanity ought to be determined as a freestanding issue, and I can envisage situations in which it should be. But what these cases show is that there is no entitlement to such trial of an issue; rather the interests of justice and of the accused must be considered individually in each case.
34. An accused or his representatives must, in my view, to be entitled to have fully considered the submission that there should be a trial of the issue of insanity even if an order under s 37(3) is likely. It might be very important to the accused that it be established that he was insane, rather than malicious, particularly if he is now significantly better. It might also be of real concern to others involved, or to the public, that it be known, if it be the fact, that he was legally insane at the time of the acts charged. If there is such good reason, it is open to the magistrate, I am satisfied, to determine the issue of insanity without returning a verdict. He can then, in a suitable case, go on to consider section 37(3). If he contemplates taking such a course, he must make clear that the option of section 37(3) will remain for consideration afterwards. Magistrates do sometimes proceed to trial of an issue. It may happen if the basis for sentencing is disputed (a Newton hearing) or occasionally upon a voire dire. Further, section 37(3) itself provides an example in the fact-finding exercise required before it can be applied. The magistrate has a discretion, which must be exercised judicially, whether to adopt that course or not. And he has a discretion, which must be similarly exercised, whether to invoke section 37(3) and if so, at what stage.
35. I agree with Mr Murphy that in all cases where an order under section 37(3) is a possibility, the court should first determine the fact-finding exercise. That may be concluded, as here, on admissions, or it may involve hearing evidence. If the court is not satisfied that the act/omission was done/made, an unqualified acquittal must follow, whatever the anxieties may be about the accused's state of health.
36. It seems to me that quite apart from the plain words of the section, there are real practical difficulties associated with the argument that an accused who contends he was insane is entitled to unqualified acquittal but then may be subject to a subsequent section 37(3) order. Once he is acquitted, the court would not, as it seems to me, have any power to require him to remain or return, whilst the practicality of hospital or guardianship order is investigated, probably at a subsequent hearing, nor indeed to require him to submit himself to medical examination. It may be that in some cases it would be possible to adjourn a trial part heard in order to assemble medical material before dealing with verdict and s 37(3) order at the same resumed hearing. But this will not always be practicable, particularly if a lay bench must be re-convened, and there might also be difficulties associated with continuity of representation. Moreover, it can safely be predicted that it will sometimes occur that what looked to be comprehensive medical evidence on the suitability of a hospital or guardianship order turns out not to be sufficient, perhaps because of evidence which is given at the trial. Nor have we heard full argument on whether the magistrate would be functus officio once acquittal had been announced and thus unable thereafter to make a section 37(3) order.
37. Mr Murphy's submission that the court might proceed in reverse to this, by first making a hospital or guardianship order and then immediately afterwards pronouncing an unqualified verdict of acquittal was formulated at a late stage in argument. It has the superficial attraction of appearing to resemble the special verdict available upon indictment. But it has not been fully researched and we have not heard argument upon the legal consequences of acquittal in such a case, there being no provision for special verdict in the Magistrates' Court. In those circumstances I do not think that we should express any opinion about this possible procedure. Nor do I think it is necessary to do so.
38. I am satisfied that both in cases of alleged insanity at the time of the offence and of apparent unfitness to stand trial, the magistrates have the power to abstain from either conviction or acquittal but rather to make a hospital or guardianship order, if such be justified medically, and provided only that it is shown that the accused did the act or made the omission charged. That is a medical rather than a penal disposal. It is consistent with the provisions which two centuries of statutes since the Criminal Lunatics Act 1800 have made for medical disposal in such cases when the accused is charged on indictment. It is in the public interest that if a man suffering from sufficient mental illness to warrant detention in hospital or reception into guardianship has committed an act or omission which would, but for his condition, be an imprisonable criminal offence, the court should have power to make a protective order of one or other kind.
39. I am also satisfied that the magistrates' court has the power, in an appropriate case, to try the issue of insanity and pronounce its conclusion upon it, without convicting or acquitting the accused, provided that the conditions for making a hospital or guardianship order under section 37(3) are met. Equally, however, if satisfied that there is no purpose in resolving the issue of insanity, and if a section 37(3) order is going to be made, the court can deal with the case without trying that issue.
40. If it is clear that no section 37(3) order is going to be possible on the medical evidence whatever happens, then in the absence of some other compelling factor the case must proceed to trial, so that if the accused was insane, he is acquitted, and if he was not, he is convicted
41. Before embarking on a case in which section 37(3) may be applied, magistrates should make it clear that it is a possibility and should invite submissions upon the course to be adopted. In particular, careful consideration must be given to any reason advanced why the issue of insanity should be tried. Such an application should be resolved having regard to the interests of justice, which include, but are not limited to, justice to the accused.
42. The likely occasion for successive hearings in a potential section 37(3) case, or any case in which insanity is alleged, are such as to make it suitable for allocation to a District Judge where such can conveniently be achieved.

This case

43. The medical evidence disclosed by Mr Singh's solicitors was a single psychiatric report based upon sight of some of his medical records and an interview with him seven months after the alleged offence. Dr Cross recorded a long history of chronic schizophrenia, for which medication had been provided. There had been one admission to hospital prior to the events charged; on that occasion Mr Singh had been informally admitted for two days following concerns from his family that he was increasingly abusive verbally and had lashed out, although used no violence to any person. There had been a further incident of aggression in the street with a knife about three weeks after the incident charged, which had resulted in temporary removal to a place of safety under section 136 Mental Health Act. The doctor reported that by the time of his interview with Mr Singh, the latter showed clear cognitive impairment, an inability to express his thoughts, gross lack of insight and very limited memory. Specifically, he thought it was 1972, he could not recall that he was prescribed medication, and he denied that he was ill. There were however no signs on that occasion of paranoid thinking, delusions, grandiosity or auditory hallucinations. The doctor expressed the view that at the time of the incident charged Mr Singh had been in such an acutely abnormal state of paranoia/confusion that he was labouring under a defect of reason from a disease of the mind, so that the did not know the nature and quality of the act he did. Since Mr Singh said he could not remember the incident clearly, nor what he had done or why, it is not immediately obvious what the basis for that conclusion was, but that would be a matter for investigation if the issue of insanity is tried. The doctor went on to say in a later report that there were no grounds to detain him under the Mental Health Act, and that the only necessary continued action was that he continue to take his medication and attend outpatient appointments. The Magistrate was told on 10 May that the doctor declined to provide any additional report and did not consider it necessary for a colleague to provide a second one.
44. There is some difference of recollection between Mr Singh's solicitor and the District Judge as to exactly what was said at the several different hearings which took place. It is not necessary to resolve those differences. This much is clear. The District Judge indicated that he had section 37(3) in mind. On behalf of Mr Singh, his solicitor contended that there should be a trial of the issue of insanity and that Mr Singh should be acquitted if insanity be made out. She had attended with the psychiatrist with a view to such trial. The District Judge declined to proceed to such trial; rather he adjourned the case for further medical report with a view to exercising his powers under section 37(3).
45. The request for trial of the issue of insanity was not new. The case had been listed for trial in February 2006 before a lay bench and the defence had attended with the doctor, having served in advance his report which clearly disclosed his opinion that the accused had been insane. On that occasion, the CPS had inexplicably asserted absence of notice of the issue, though it was clearly flagged in the medical report, never mind what had or had not been said in court on previous occasions. The case had had to be put over and was listed before a District Judge. That District Judge was asked to rule on the availability of insanity in a magistrates' court and ruled that it was available, the issue being (then) conceded by the Crown. She set the case down for trial, but flagged up the section 37(3) point. At that stage the case came before the different District Judge whose ruling is now in question, and it was he who declined to proceed to trial on the basis of a defence of insanity. It needs to be said that the defence did not then accept that it was possible to make a hospital or guardianship order as well as pronouncing an acquittal, and the position of the Crown was unclear on that point.
46. It seems to me that:

i) for the reasons given, the accused had no absolute right to a trial of the issue of insanity, still less to acquittal if the issue should be determined in his favour;

ii) the issue of insanity was not clear-cut; the opinion of Dr Cross might prevail if it were tried, or it might not; if it did not, the accused would be convicted; if contemplating a trial of the issue, the magistrate would be entitled to enquire whether the CPS proposed to obtain a second opinion;

iii) the defence had reasonably anticipated such a trial, and when it was refused stood on the suggested absolute right to it rather than addressing any particular reasons why such trial of the issue should take place;

iv) thus the question whether or not there should be a trial of the issue was not fully considered;

v) this was a case in which the magistrate was entitled to take the view that a section 37(3) order might be appropriate; there was a longstanding medical condition, it produced occasional aggression and violence, the condition was not under reliable control and the accused did not understand he was ill; if his condition did not warrant detention by way of hospital order, it might warrant a guardianship order designed to ensure so far as possible that he continued to attend outpatient appointments and to take his medication;

vi) moreover, since the issue of insanity was not clear cut, one relevant consideration (among many) on the question of whether a trial of the issue should be undertaken, was the extent of any further medical investigation which would be necessary, balanced against the likelihood or unlikelihood of a section 37(3) order being made in the end in any event;

vii) a decision to adjourn for further medical report, pursuant to section 11 of the Sentencing Act 2000 was well within the magistrate's powers;

viii) if it were clear that no section 37(3) order was going to be possible on the medical evidence whatever happened, that would indicate that the right course would be to proceed to trial; Mr Murphy's submission has been that the District Judge contemplated a hospital order whilst on the evidence of Dr Cross there is no reasonable prospect of such being made; whether that is so or not, the District Judge is entitled to call for consideration to be given to the possibility of a guardianship order –whether that is appropriate or not has not yet been addressed by any medical witness;

ix) although the District Judge indicated a fairly clear view that he would prefer not to conduct a trial, but to make a section 37(3) order without one, that could only be a provisional view; no-one yet knew whether either a hospital or guardianship order was going to be possible; the indications were against the former; there was no evidence as to the latter;

x) therefore the application for judicial review, as well as failing to show that the District Judge was obliged in law to proceed to trial, was premature;

xi) since the District Judge wants assistance on the possibility of a guardianship order, the proper course is, whatever he decides on full argument to do in relation to trial of the issue of insanity, to call under section 11 of the 2000 Sentencing Act for a medical report directed to that issue, with a second report if the first suggests guardianship to be appropriate.

47. In those circumstances I would refuse the application for an order requiring the magistrate to conduct a trial and remit the case to him, or to a colleague as may be convenient, for further consideration in the light of this judgment.

Mr Justice Treacy:

48. I agree.