South West Yorkshire Mental Health NHS Trust, R (on the application of) & Anor v A & Anor

This is an appeal by Mr A (“the appellant”) against a judgment of Newman J given on 27 March 2003 whereby he quashed an order of Goldring J dated 28 February 2001 made in the Bradford Crown Court (“the Crown Court”). Newman J ordered that the matter be remitted to the Crown Court and that the quashing order should not take effect until a judge of that court was seized of the matter at a hearing to deal with the remission. Newman J further ordered that the judge at the Crown Court “shall then make the proper order under Section 3 and 5 of the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedures (Insanity and Unfitness to Plead) Act 1991.” Newman J refused permission to appeal and an application for certification of a point of law of general public importance.

Newman J made the order on the application of South West Yorkshire Mental Health NHS Trust (“the respondents”). The appellant appeared as an interested party to oppose the application. The Secretary of State for the Home Department (“the Secretary of State”), now jointly represented with the Crown Court, supported the application of the respondents to the court and both parties now submit that this court has no jurisdiction to hear the appeal and, alternatively, that the appeal should be dismissed.

On 27 February 2001, A appeared before Goldring J at the Crown Court charged with the murder of his sister-in-law. The medical evidence was that A was suffering from paranoid psychosis characterised by persecutory delusions and hallucinations and that such illness was a mental disorder within the meaning of the Mental Health Act 1983 (“the 1983 Act”). The procedure under the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”), as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (“the 1991 Act”), was then followed. A jury was empanelled under Section 4 of the Act to determine the question of fitness to be tried. Upon a finding that the appellant was unfit to stand trial, a jury was empanelled, under Section 4A, to determine whether they were satisfied, as respects the count on which the accused was to be tried, that he did the act or omission charged against him as the offence. The jury concluded that the appellant did the act charged against him as the offence.

The question then arose as to what order Goldring J should make. It is now common ground that, in the circumstances, he was required to make an order under Section 5 (2) (a) of the 1964 Act, as amended. It provides that:

It was, however, submitted by leading counsel on behalf of A:

Having been informed that there was a bed for A at the Secure Unit, Goldring J stated:

Schedule 1 to the 1991 Act, headed “Orders for Admission to Hospital” specifies the effect of an admission order under section 5 of the 1964 Act. It provides in paragraph 1(1) that the order shall be sufficient authority for any person acting under the authority of the Secretary of State to take the person to whom the order relates and convey him at any time within the relevant period to the hospital specified by the Secretary of State. The relevant period for present purposes was one of two months beginning with the date on which the order was made (para.1 (4)). Paragraph 1 (3) provides:

Paragraph 2 of the schedule provides:

For completeness, I refer to paragraph 1 (2). It provides that the court by which any such order is made may give such directions as it thinks fit for the conveyance of a person to whom the order relates to a place of safety and his detention there pending his admission to hospital within the relevant period.

Paragraph 4 (1) provides:

It is common ground, that, unfortunately, the judge was led into error by the reference to section 47 of the Crime (Sentences) Act 1997 which does not confer the power suggested by counsel. In the circumstances which existed, the court was obliged to make an admission order under section 5 (2) (a) of the 1964 Act, as amended. Moreover, by virtue of paragraph 2 of Schedule 1 to the 1991 Act, the court was required to give a direction that the appellant should be treated as if an order restricting his discharge had been made under Section 41 of the 1983 Act, without limit of time.

There was then a further error in that an officer at Bradford Crown Court issued a form of order which did not accord with the judge’s ruling. It was headed “Hospital Order with Restrictions Ordered Under Section 41 of the Mental Health Act 1983”. It recorded that A had been convicted of murder, that within 28 days from the date of the order the defendant should be admitted and detained in hospital, namely Newton Lodge Regional Secure Unit, and that the court had ordered that the defendant should be subject to the special restrictions set out in Section 41 of the 1983 Act. There was no jurisdiction to make an order directly applying Section 37 and 41 of the 1983 Act because, amongst other things, such an order cannot be made in respect of an offence the penalty for which is fixed by law, as in the case of murder. It is clear, however, from what he said that the judge intended the restrictions in section 41 to apply, but he applied them by the wrong route.

On admission to Newton Lodge, both the respondents and the Secretary of State believed that the appellant was detained under Sections 37 and 41 of the 1983 Act. No hospital was designated by the Secretary of State under Schedule 1 to the 1964 Act, as amended. The misapprehension was not identified until April 2002, that is of course well outside the period of two months from the date the order was made.

In an attempt to remedy the position, the Crown Court issued a form of amended order in April 2002 purporting to be an order for admission to hospital in appropriate terms. It was dated 28 February 2001, carried a signature of an officer of the court, and was endorsed as “an amended order re-issued on 18 April 2002”. On 13 May 2002, the respondents accepted an application to detain A under Section 3 of the 1983 Act, (civil admission for treatment). A’s present solicitors (who had not appeared at the trial) sought clarification and noted that A had not been informed of the right he claims to have had to a hearing before a Mental Health Review Tribunal in the first six months after the admission order was made, a right not conferred on those detained under SS 37/41 of the 1983 Act. The respondent sought judicial review of the Crown Court order.

Newman J concluded that the effect of Goldring J’s order was that the judge “purported to make an Admission Order to the Newton Lodge Regional Secure Unit in Wakefield when he had no power to do so”. Having held that the order was made without jurisdiction, Newman J stated that it was not void but an effective order until set aside so that A’s detention had been subject to it. In the circumstances, the judge held, the Section 3 order had been of no effect.

The judge remitted the issue to the Crown Court on the basis that “it is essential, in the public interest, there should be no confusion as to the statutory basis upon which Mr A is detained”. The form of order issued by an officer at the Crown Court was of no legal effect, he held, “It is the order as pronounced in court which has legal effect, not the form of order drawn up by court officials purporting to reflect the judge’s order”.

Newman J also held that the court had jurisdiction to grant relief. Section 29 (3) of the Supreme Court Act 1981 did not apply to orders under the 1964 Act. Further, no action was required with respect to the Section 3 order because that order had no effect.

On 13 July 2003, the Crown Court made an order under Section 5 of the 1964 Act, as amended, which Mr Gledhill accepts would have been lawful had it been made on 28 February 2001. After reciting the procedure under the 1964 Act which had been followed, it provided:

The submissions of Mr Gledhill, for the appellant, are, first that the relevant proceedings were not “in a criminal cause or matter” so as to exclude the jurisdiction of the Court of Appeal (Civil Division) under Section 18 (1) (a) of the Supreme Court Act 1981 (“the 1981 Act”), secondly, that the matter was one “relating to trial on indictment” and so outside the jurisdiction of the High Court by virtue of Section 29 (3) of the 1981 Act, thirdly, that Newman J has misconstrued the order made by Goldring J, fourthly, that Newman J should not have granted relief in circumstances where the Secretary of State had been in error in failing to ensure the lawfulness of the detention and, fifthly, that in all the circumstances discretion should not have been exercised to grant relief to the respondents. Mr Gledhill accepts that, provided the issue of the lawfulness of A’s detention to date is left open, it does not fall for consideration on the hearing of this appeal. The court decided, without objection from counsel, to take the jurisdictional point first. Section 18(1) of the 1981 Act provides insofar as is material

On the issue of the jurisdiction of this Court, Mr Gledhill submits that once the appellant had been found unfit to stand trial, the criminal trial had come to an end. Thereafter the proceedings were the protective proceedings of determining whether or not A needed to be detained in hospital, which was a non-punitive procedure not involving a conviction. The criminal trial process, the criminal aspect of the matter, had come to an end and subsequent proceedings were not in a “criminal cause or matter” within the meaning of section 18(1)(a).

There has been considerable litigation upon the construction of the expressions “charged with a criminal offence”, “criminal cause or matter” and “relating to trial on indictment” and “criminal proceedings”. The need to classify proceedings, and parts of proceedings, for different purposes has generated a large body of jurisprudence. The jurisprudential complexity is unfortunate, submits Mr Gledhill, but only parliamentary intervention can cure it.

The expressions cited above do differ from each other and cases dealing with one are of only limited value in construing one of the others. Reliance is placed by Mr Gledhill on the decision of the House of Lords in R v H[2003] 1 WLR 411. The expression to be construed was “everyone charged with a criminal offence” in Article 6 of the European Convention on Human Rights. Rights are conferred upon such a person by Article 6 of the Convention in the determination of any criminal charge against him.

A jury had found a defendant unfit to plead and it was contended that to proceed under section 4A of the 1964 Act to determine whether he had done the act charged would be an abuse of process and contrary to Article 6. Giving a judgment with which the other members of the House agreed, Lord Bingham of Cornhill stated, at paragraph 18:

In the City of London case, in the Divisional Court, access orders had been sought by the Customs and Excise Commissioners against banks to facilitate an investigation into the affairs of taxpayers and the issue was whether the resulting proceedings constituted “criminal proceedings” within the meaning of section 19 (1) of the Prosecution of Offences Act 1985. Lord Bingham, with whom Morison J agreed, stated, at page 2025A:

The expression “criminal cause or matter” in the predecessor to section 18(1)(a) was considered by the House of Lords in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government[1943] A.C. 148. The question was whether the Court of Appeal could hear an appeal from a refusal of the Divisional Court to grant a writ of habeas corpus to a conscript in the Netherlands Army in the United Kingdom who was detained pending handing over to the Dutch military authorities in the United Kingdom. Viscount Simon LC, with whom the other members of the House agreed, stated:

Lord Wright added, at page 162:

In Day v Grant [1987] Q.B 976, Sir John Donaldson M.R. referred to the speech of Lord Wright in Amand and stated:

In Carr v Atkins [1987] Q.B 963, it was held in this court that an order (or a refusal of an order) under Schedule 1 to the Police and Criminal Evidence Act 1984 relating to excluded or special procedure material was made in a criminal context in aid of a criminal investigation. Notwithstanding that proceedings had not been started, it was “a criminal cause or matter”.

In in re O & Anr (Restraint Order: Disclosure of Assets) [1991] 2 QB 520, the status of a restraint order pursuant to Section 77 of the Criminal Justice Act 1988 was considered. Lord Donaldson MR stated, at page 527H:

In GovernmentofThe United States of America v Montgomery & Anr [2001] 1 WLR 196, Lord Hoffmann, with whom Lord Cooke, Lord Hutton and Lord Scott agreed, expressly agreed with the conclusion in re O and held that the same applied to external confiscation orders. Lord Hoffman considered Amand and stated, at page 202C:

R v Terry James F[2003] EWCA Crim 1625, involved a charge of burglary. The defendant was found unfit to plead and it was found that he had done the acts alleged. Notwithstanding that there had been no conviction, orders were made under section 37 (1) and 41 of the 1983 Act. That course was not available to the court. This court found that the correct order would have been an admission order under section 5 (2) (a) of the 1964 Act. Kennedy LJ stated:

The finding of unfitness brought the trial of this applicant to an immediate end: see R v Antoine[1999] 2 Cr App R 225 at 231. There is statutory right of appeal to the Court of Appeal Criminal Division against the finding that he was under a disability and against the finding that he did the acts alleged – see section 15 of the Criminal Appeal Act 1968 as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 – but there is no statutory right to appeal against the order for disposal. That has to be dealt with by means of an appeal to the Divisional Court. As explained in the case of Grant [[2002] 2 WLR 1409] such an appeal is not barred by Section 28 (2) of the Supreme Court Act 1981 since the trial on indictment terminated once the jury held that the appellant was unfit to be tried. Thus hearings under section 4A are not trials on indictment and an order made under section 5 is not a matter relating to a trial on indictment: see also the decision on this Court in Latif[2002] EWCA Crim 2115.”

For the Crown Court and the Secretary of State, Mr Perry observes that on the present and similar facts, a defendant has the protection of recourse to the Divisional Court and, in appropriate cases, to the House of Lords, in the way a defendant in extradition proceedings does. Proceedings to obtain restraint and similar orders are clearly collateral to the criminal proceedings, it is submitted, in a way the procedure now under consideration is not. Those proceedings are truly outside the trial process. The rights of third parties may also be involved. To illustrate the distinction, Mr Perry draws attention to the Proceeds of Crime Act 2002 which makes specific provision, in part 5, for the “Civil recovery of the proceeds etc. of unlawful conduct”. Express provision is made in part 2 of the Act, headed “Confiscation: England and Wales”, for appeals to the Court of Appeal.

In my judgment, the appeal to the High Court was an appeal in “a criminal cause or matter” as defined in section 18(1)(a) of the 1981 Act. Where proceedings are initiated in the Crown Court following an allegation of a breach of the criminal law, it appears to me that an overall view of the proceeding is appropriate and not an order-by-order analysis (Lord Wright in Amand). That was also contemplated by Viscount Simon LC in Amand when referring to the “nature and character of the proceedings” and by Lord Donaldson’s reference to looking at the “underlying proceedings” in which the order was made. Lord Bingham’s test in City of London is met, though the test is based on a somewhat different term. As Lord Hoffman observed in Montgomery, Viscount Simon LC in Amand, when referring to the direct outcome of proceedings being the possible punishment of the defendant, was giving an illustration relevant to the facts of that case and not an exhaustive definition of the proceedings.

The Crown Court orders under consideration did not cease to be orders in “a criminal cause or matter” because, upon the verdicts entered, the statute empowered the court to make a custodial order in the absence of a conviction. The orders were in no way collateral to the criminal proceeding which had been initiated by the making of the criminal charge. They provided a method of giving effect, in circumstances in which a conviction is not appropriate, to what had plainly been initiated as a criminal proceeding. They were not collateral to the criminal proceedings in the way that restraint and confiscation orders are.

That view is reinforced by the presence of the provision in paragraph 4 of schedule 1 to the 1991 Act that there may be circumstances in which a person detained under a section 5(1) order may subsequently be remitted for trial. A conventional criminal trial remains a possibility and an overall view of the statutory procedure makes each order within it an order in “a criminal cause or matter”. It is not in my view appropriate to compartmentalise the orders, some being made in “a criminal cause or matter” and others not. I do not find that conclusion inconsistent with a finding that a part of the procedure does not involve the determination of a criminal charge against the appellant.

In the course of the hearing, I raised the question whether it would have been possible simply to reconvene the Crown Court much later and make the order which statute obliged the court to make. That would be on the basis that a court which has, by omission, failed to do what it was obliged to do is not prevented from subsequently performing its duty. Upon discovering the existence of a purported order which it had no jurisdiction to make, could the court reconvene to make the order it was required to make ? Subject to argument based on abuse of process, there is no time limit, following appropriate jury verdicts, on the making of an order under section 5 of the 1991 Act.

Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 confers a power to vary or rescind a sentence imposed or order made in the Crown Court “when dealing with an offender” but only within the period of 28 days beginning with the day on which the sentence or other order was imposed. In Customs and Excise Commissioners v Menreal [1980] A C 598 Lord Salmon considering at p607G the predecessor to section 155, stated that “there is however no power in the Crown Court to vary or rescind a sentence or any other order after the expiry of that [28 days] period”. The order sought to be altered in that case was within the jurisdiction of the court and not, as in the present case, beyond its powers and the defendant in that case was undoubtedly “an offender”. There is no need to decide the point in the present case and, having raised it, I do not attempt to do so.

In my judgment, the court has no jurisdiction to hear an appeal by Mr A.

Having reached the conclusion that the court has no jurisdiction, it is unnecessary, and would be inappropriate, to consider the other issues raised on behalf of the appellant, save to observe that I see force in the respondents’ submission that it is very difficult to reconcile the appellant’s argument that the order was not made in “a criminal cause or matter” with the argument that it did relate “to trial on indictment” and was therefore beyond the jurisdiction of the Divisional Court by virtue of section 29(3) of the 1981 Act. On my findings, any appeal from the Divisional Court would be by way of an application for certification followed by an application for leave to appeal to the House of Lords.

I agree that there is no jurisdiction to hear this appeal.

Section 18(1)(a) of the Supreme Court Act 1981 provides that, except as provided by the Administration of Justice Act 1960 (which provides for appeals from orders made to punish criminal contempt), no appeal shall lie to the Court of Appeal “in any criminal cause or matter”. The question, therefore, is whether the order made on 27 March 2003 by Mr Justice Newman in the proceedings for judicial review of the earlier order made on 28 February 2001 by Mr Justice Goldring in the Bradford Crown Court was an order made in a criminal cause or matter. In my view the answer to that question is “Yes”.

In making the order which he did, Mr Justice Newman accepted jurisdiction under section 29(3) of the Supreme Court Act 1981. That section gives to the High Court, “in relation to the jurisdiction of the Crown Court other than its jurisdiction in matters relating to trial on indictment”, all such jurisdiction to make orders of mandamus, prohibition or certiorari as it (the High Court) possesses in relation to the judgment of an inferior court. The order which the judge made on 27 March 2003 was an order in relation to the jurisdiction of the Crown Court under section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964, as amended. Mr Justice Newman held that the jurisdiction under section 5 of the 1964 Act was not jurisdiction in a matter relating to trial on indictment. If it were necessary to decide the point, I would be inclined to agree. But it is not necessary to decide that point. Whether or not the jurisdiction under section 5 of the 1964 Act is jurisdiction in a matter relating to trial on indictment, it is, plainly, jurisdiction of the Crown Court in a criminal cause or matter – in the sense identified by the House of Lords in Amand v Home Secretary and Minister of Defence of the Royal Netherlands Government [1943] AC 148 and in Government of the United States of America v Montgomery & Anr [2001] 1 WLR 196. And it was in relation to that cause or matter that Mr Justice Newman made the order which he did.

I agree that this court does not have jurisdiction to entertain this appeal for the reasons given by Pill LJ.