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Cite as: [2016] EWHC 1389 (Admin)

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		Neutral Citation Number: [2016] EWHC 1389 (Admin)
		Case No: CO/270/2016

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRTATIVE COURT IN WALES

Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET

09/06/16

B e f o r e :

MR JUSTICE HICKINBOTTOM
____________________

Between:

	THE CITY AND COUNTY OF SWANSEA	Claimant
	- and -
	SWANSEA CROWN COURT	Defendant
	- and -
	THE CROWN PROSECUTION SERVICE B	Interested Parties

____________________

Dominic Boothroyd (instructed by Head of Legal & Democratic Services,
City & County of Swansea) for the Claimant
The other parties neither appearing nor being represented
Hearing date: 9 June 2016
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Hickinbottom :

The Second Interested Party, B, was born on 25 August 1929. He was charged with historical sex offences, amounting to a long campaign of sexual abuse of a young family member. However, by the time of his trial at Swansea Crown Court, B was under a disability, suffering from dementia to the extent that it was agreed between psychiatrists instructed by the prosecution and defence respectively that he was unfit to plead. As a result, the case proceeded under section 4A of the Criminal Procedure (Insanity) Act 1964 to enable the jury to determine whether, on the evidence, they were satisfied that he did all or any of the acts charged against him as offences. Following the trial of that limited issue before Recorder Philpotts and jury, the jury found that B had done the acts involved in 13 charges of rape of a child under the age of 13 and seven charges of causing a child to engage in sexual activity.

Following such findings, the orders which a court can make are restricted to those set out in section 5 of the Act, namely a hospital order, a supervision order or an absolute discharge. In B's case, the psychiatrists were agreed that a hospital order would not be appropriate. In the event, the Recorder sentenced B to a two year supervision order, placing B under the supervision of Amy Beasant, a social worker employed by the Claimant local authority ("the Council"), with conditions that B keep in touch with Ms Beasant, reside at an identified care home, and submit to the treatment of a named psychiatrist. The order, which was in standard form, recited that the court was satisfied that Ms Beasant was willing to supervise B and that arrangements had been made for the treatment specified.

B was already known to Ms Beasant. On 13 August 2015, after his conviction but before his sentence, B was referred to the Council's Social Services Department because of concerns for his health and welfare. For example, he could only walk very short distances, there was concern that he was not meeting his own personal care needs, and he was extremely frightened to stay in his own house alone. In the event, he was placed in a care home over the weekend on an emergency basis, and, on 14 August, his case was taken over by Ms Beasant as an emergency duty matter. His needs were in due course assessed, but assessed as being low. Consequently, although he was accommodated in the care home, he was not offered any services there until, on 21 October, the assessment concluded that he did not meet the criteria for the provision of local authority accommodation or services.

Ms Beasant and the Council were initially unaware that the supervision order had been made. As soon as it came to their attention, an application for review was made to the Crown Court, supported by a statement by Ms Beasant setting out the background chronology and stating that she had never agreed to be a supervising officer for B. A review hearing before the Recorder was set down for 19 November 2015. Both prosecution and defence were represented at the hearing, the Crown maintaining a neutral stance and B opposing the Council's application that the supervision order be revoked. The Recorder refused the Council's application. The supervision order consequently remained in place.

In this claim, with permission to proceed granted by Coulson J on 3 March 2016, the Council seeks judicial review of the imposition of the supervision order. There is but one ground. Paragraph 2 of schedule 1A of the Act provides that a supervision order shall not be made unless the court is satisfied "(a) that the supervision officer intended to be specified in the order is willing to undertake the supervision; [and] (b) that arrangements have been made for the treatment intended to be specified in the order". In this case, Mr Boothroyd submits, Ms Beasant was unwilling to be B's supervising officer – indeed, her evidence is that she would not be a suitable or appropriately experienced person to supervise B long-term, as the order envisages (see paragraph 11 of her statement of 17 November 2015) – and there was no evidence upon which the Recorder could properly have concluded that she was willing. Furthermore, there were no arrangements in place for treatment, nor was there any evidence upon which the Recorder could have properly concluded that there were.

In those circumstances, it is said that the Recorder had no jurisdiction to make the order he purported to make.

In my judgment, this point is unanswerable – and, indeed, none of the other parties (including B himself) seek to oppose the judicial review claim. Paragraph 2 of schedule 1A makes the consent of the supervising officer mandatory, before a supervision order can be made. Without such consent, the court has no jurisdiction to make such an order. Here, Ms Beasant did not consent; and there was no evidential foundation upon which the Recorder could properly have made a finding that she did.

Where the Crown Court acts without jurisdiction, this court maintains a supervisory jurisdiction and has the power to intervene, the matter not being excluded by section 29(3) of the Senior Courts Act 1981 because, as a result of the want of jurisdiction, it is not a matter "relating to trial on indictment" (R v Crown Court at Maidstone ex parte London Borough of Harrow [2000] 1 Cr App R 117).

In this case, I have no doubt that this court's power to intervene should be exercised to quash the unlawful order made, particularly as Ms Beasant is not only unwilling but, in her own view, not properly qualified to supervise B. Again, no one suggests that the Council should be denied the remedy it seeks.

I shall consequently allow this judicial review, quash the order made by Recorder Philpotts on 28 September 2015, and remit the matter to the Crown Court for redetermination of the appropriate order, on the basis of the jury findings as to the acts done, available assessments of risk and the restricted orders available to the court under section 5 of the 1964 Act.