F, R v

LORD JUSTICE KENNEDY: At about 3.45 a.m. on 16th September 1998 the front door of the flat of Mr V. was kicked in by a man who then entered the flat. He was abusive to Mr V. and took a number of items of his property. It was and is the prosecution case that the person who behaved in that way towards Mr V. and his property was this applicant. He was pursued by the police and was arrested. He was then sent for trial at Woolwich Crown Court charged with burglary.

The first matter that had to be considered was his fitness to plead. That had to be determined by a jury pursuant to section 4(5) of the Criminal Procedure (Insanity) Act 1964. So a jury was empanelled and on 2nd August 1999 medical evidence was called which satisfied that jury that the applicant was indeed unfit to plead. No issue arises at this stage in relation to what happened up to that point.

After his unfitness to plead had been determined, on 5th August 1999 a fresh jury was empanelled pursuant to section 5A of the 1964 Act to decide if he had done the acts alleged. It found that he had. In those proceedings the applicant was not, perhaps surprisingly, legally represented. An order was made that he be detained in hospital under section 37 of the Mental Health Act 1983 with a restriction order being made under section 41 of that Act.

He applied for leave to appeal. That was refused by the single judge and by the Full Court on 14th February 2002. On both occasions it was emphasised, rightly, that there had been no conviction.

On 5th March 2003 the applicant instructed his present solicitors. They took the advice of counsel who appears before us today, Miss Caroline English, and she concluded that the orders made under the Mental Health Act were ultra vires. That was not a point which had previously been taken in the proceedings before this Court, but it arises, first, from a consideration of section 5 of the Criminal Procedure (Insanity) Act 1964. That section as amended applies where findings record that an accused is under a disability and that he did the act charged against him. It provides in section 5(2) that in those circumstances the court shall make an order that the accused be admitted in accordance with the provisions of schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 to such hospital as may be specified by the Secretary of State. There are other possible forms of disposal, but for immediate purposes they are not material. Orders under the Mental Health Act are not amongst those other possible forms of disposal.

Secondly, an order under section 37(1) of the Mental Health Act can only be made, "where a person is convicted" and this applicant has never been convicted of the relevant offence. An order made under section 41 of the Mental Health Act can only be made as an adjunct to a legally imposed order under section 37. So that is a second reason why the form of disposal which was adopted in the present case was not in fact open to the court. Had the correct order being made, namely, an admission order under section 5(2)(a) of the 1964 Act, the result in practical terms would have been very much the same, because paragraph 2 of schedule 1 to the 1991 Act provides that:

However, paragraph 4 of schedule 1 also provides that, where a person is detained pursuant to an admission order made under section 5 of the 1964 Act, if the Secretary of State becomes satisfied that the person can properly be tried he can remit that person for trial. When that is done the admission order ceases to have effect.

In the present case it seems that after the Full Court made its decision in February 2002 the applicant was anxious to persuade the Secretary of State to exercise his powers pursuant to paragraph 4 of schedule 1. Thus his case came before a Mental Health Review Tribunal in February 2003 which Tribunal recommended remission, but then the problem emerged as to the order made by the Crown Court. It was by then far too late for the matter to be corrected by the sentencing judge, but is it too late for action to be taken by this Court, either sitting as Court of Appeal Criminal Division, or as a Divisional Court, having regard to the decision made on 14th February 2002 when, sitting as a Court of Appeal Criminal Division, a constitution of this Court refused the applicant leave to appeal against sentence? As to that, we are satisfied that there is a route available.

This Court sitting as a Court of Appeal Criminal Division had in fact no jurisdiction to consider an appeal against sentence because such an appeal can only be brought after a conviction: see section 9 of the Criminal Appeal Act 1968. That was something which was obviously overlooked when the matter was before this Court on 14th February 2002, but, as we have noted, the Court did then recognise, and indeed emphasised, that there had been no conviction.

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 a 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 of 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 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 of this Court in Latif [2002] EWCA Crim 2115.

Sitting as a Divisional Court we grant permission for judicial review, dispense with service, and abridge time. We set aside the orders which were in fact made purportedly under sections 37 and 41 of the Mental Health Act 1983 and remit the matter to the Crown Court so that appropriate orders may be made under section 5 of the 1964 Act. In doing so it seems to us that the Crown Court may well be disposed to make the order that the applicant be admitted in accordance with the provisions of schedule 1 of the Criminal (Insanity and Unfitness to Plead) Act 1991 to such hospital as may be specified by the Secretary of State, but Miss English has made it clear in her submissions to us this morning that there may be more doubt about whether at this stage it would be appropriate for a direction to be made under paragraph 2(1)(b) of schedule 1 that the applicant be treated for the purposes of the 1983 Act as if an order restricting his discharge had been made under section 41 of the Act either without limitation of time, or for some specified period. For that purpose, in order to decide whether such a direction should be made or not, the Crown Court may well be assisted by hearing medical evidence relating to the applicant's present state of mind.

The matter must therefore be remitted to the Crown Court either to be heard by Judge Anwyl, if she still be available, or to be heard by such judge, possibly at Woolwich Crown Court, as may be directed by the presiding judges of the South Eastern Circuit.