Regina v Grant: CACD 22 Nov 2001

A jury had found, under section 4(5) of the 1964 Act as amended, that the defendant was unfit to plead. The court considered section 5 of the 1964 Act.
Held: A judge of the Crown Court is obliged under the section to make a mandatory order containing restrictions on the liberty of the accused person where the accused person has been found to have committed an act which constituted the actus reus of murder where the person was indicted for murder without there being any determination by an independent and impartial tribunal as to whether the appropriate count was one of murder or manslaughter. It was submitted that the provision is incompatible with articles 5.1(e) and 6.1 of the Convention.
Richards J said: ‘Subject to the concern expressed below, it is not unreasonable for Parliament to have decided to lay down a mandatory requirement of admission to hospital for a person who has been charged with murder, has been found to have done the act charged, but is under a disability so as to be unfit to be tried; and detention in those circumstances is not to be regarded as ‘arbitrary’ for the purposes of Article 5(1)(e). The right to make immediate application to the MHRT and the other protections operating following admission to hospital ensure compliance with Article 5(4)’ and
Richards J continued: ‘The point of concern is whether the procedures give proper effect to the second of the conditions laid down for detention under Article 5(1)(e). To adopt the formulation in R (H) v. London North and East Mental Health Review Tribunal, ‘the test is whether it can be reliably shown that the [person] suffers from a mental disorder sufficiently serious to warrant detention’. The procedures under the 1964 Act are not directed specifically to that question. The issue under section 4 is whether the defendant is fit to be tried, which involves consideration of whether the defendant has sufficient intellect to instruct his legal team, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence. Those criteria do not correspond directly to the criteria for a mental disorder sufficiently serious to warrant detention, and it may be possible for a person to be found unfit to be tried without his suffering from a mental disorder sufficiently serious to warrant detention. Yet once a person facing a charge of murder has been found to be unfit to be tried, there is no further consideration of his mental condition under the statutory procedures prior to admission to hospital. If the jury find under section 4A(2) that he did the act charged, it is mandatory for the judge to make an admission order under s.5. The judge cannot consider whether such an order is justified on the medical evidence. Thus no-one is required specifically to address, prior to the person’s detention, the question whether he suffers from a mental disorder sufficiently serious to warrant detention. This feature of the procedure does raise the question whether detention is ‘arbitrary’ in the sense explained by the European Court of Human Rights in Winterwerp and Johnson.

It seems to us that the question is one of some difficulty. The answer to it may lie, but does not necessarily do so, in Mr Eadie’s submission that this is a difficult and complex area where Parliament has carried out the requisite balancing exercise and has concluded that, where it has been found by a jury that a person is unfit to be tried and has done the act charged as murder, the automatic consequence ought to be admission to hospital as prescribed in s.5 (subject to the person’s right to make immediate application to the MHRT and to the other protections afforded to a person subject to detention under these provisions); that the court should afford a measure of deference to Parliament in such a field; and that in all the circumstances the procedure is not to be stigmatised as arbitrary for the purposes of Article 5.

In the circumstances of the present case, however, it is unnecessary for us to reach any conclusion on that issue, since we are satisfied on the particular facts that the conditions for detention, albeit not considered in terms under the statutory procedure, were in fact met. All the experts who gave evidence in the s.4A proceedings were of the view that the appellant suffered from mental impairment within the meaning of the Mental Health Act 1983. They did not consider the question of disposal because it was not necessary for them to do so. [The medical history was considered]. We are also told that, though no report is available, the Secretary of State understands from the clinical staff at the hospital that they believe that the appellant’s mental impairment would justify her continuing detention in hospital and that there is treatment available which is alleviating her condition. Looking at the evidence as a whole, we take the view that the appellant did suffer from a mental disorder sufficiently serious to warrant detention and that the conditions for initial detention under Article 5(1)(e) were therefore met. That is a sufficient basis for rejecting this part of the appellant’s case. ‘
Rose LJ VP, Richards J, Pitchford J
[2001] EWCA Crim 2611, [2002] MHLR 41, [2002] 1 Cr App R 38,, [2002] QB 1030, [2002] 2 WLR 1409, [2002] Crim LR 403
Bailii
Criminal Procedure (Insanity) Act 1964 5, European Convention on Human Rights 6 6
England and Wales
Cited by:
CitedJuncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
CitedJuncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .

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Updated: 23 February 2021; Ref: scu.271134