M, R (on the application of) v Kingston Crown Court

MR JUSTICE OUSELEY: On 25 June 2014, His Honour Judge Hopmeier QC, sitting at Kingston Crown Court, made an order under section 35 of the Mental Health Act 1983 in respect of the defendant in a forthcoming criminal trial. He made an order that the defendant be remanded to hospital, on the face of it for a report to be made on the defendant's mental condition. Following an overnight application, an order was made by Carr J on 26 June 2014, by which this court is hearing a rolled-up application challenging that decision. Between times she made an order suspending the effect of the order of His Honour Judge Hopmeier QC so that the defendant for the moment is on bail.

The making of the order arises in this way. The claimant committed a serious assault in July 2013, the details of which for this purpose do not matter. I am cautious about what I say, not merely because there is an order in force protecting the anonymity of the claimant, but nothing is to be reported which means that he may be identified. The circumstances of the offence, if publicised, would make his identification easier.

The claimant is now just 17. In October 2013, he pleaded guilty to an offence under section 20 of the Offences Against the Person Act 1861. The Crown has not accepted that as concluding the matter, and for present purposes intends to proceed with a charge under section 18 of that Act. The issue in that trial will be intent and capability of forming intent. That trial is due to start on 18 August 2014, with a fallback date, in the event that the in-patient assessment under HHJ Hopmeier's order proceeds, in October.

The position in relation to psychiatric and psychological evidence is this. The commission of the offence led to a report being obtained from a consultant psychiatrist, Dr Pipe, by the defendant, and there have been, through the passage of time, a total of six reports prepared relating to his mental condition. One has been prepared by a forensic psychiatrist, one by Dr Bester and two by Dr Williams, another forensic psychiatrist. They have concluded that the claimant was suffering from a psychotic illness characterised by delusions regarding the victim of the alleged offence, and with command hallucinations. Not all the details of the condition are necessarily crucial to the defence, but they are nonetheless part of the defence psychiatrists' diagnosis.

The prosecution has served three reports, in each of which Dr Dimond, a forensic psychiatrist, was concerned, but one of which Dr Smith, a clinical psychologist, also prepared. The reports were all before HHJ Hopmeier. HHJ Hopmeier also heard evidence from Dr Dimond, as well as briefly from Dr Williams called by the claimant.

For present purposes the state of the evidence can be summarised as follows. The defence psychiatrists maintained the diagnosis to which I have referred; the opinion of Dr Dimond varied somewhat. That is not said by way of criticism, because all those involved have found this a difficult and unusual case in which to reach a diagnosis. The claimant is of previous good character; he has been able to sit, with success, his GCSEs at around the time that he committed this offence of violence.

Dr Dimond's first report, dated 25 February 2014, raises questions about the diagnosis. She considers that there is evidence to support the defence diagnosis, but regarded the evidence supporting command hallucinations as less robust for reasons given. She considered that there were questions about whether he experienced a psychotic illness, but recognised that it was possible that he had done so. She recommended that there be intensive, more comprehensive and frequent mental state examinations and intensive individual and family work in a paradigm of relapse prevention and risk management. There was some discussion about whether there should be an in-patient assessment.

This report was followed by an addendum report of 7 March 2014, in which she said that, although it was highly unlikely that the claimant experienced command hallucinations, it was probable that the claimant experienced a psychotic illness characterised by delusions about the victim. Thus by this report, the defence psychiatrist had come to a position which on crucial issues for the defence was close to the position of the defence psychiatrists. Although disagreeing over the likelihood of command hallucinations, she was of the view that it was probable that the claimant had experienced, as contended by Doctors Bester and Williams, a psychotic illness characterised by delusions about the victim. This, however, in her view, required further assessment within a hospital environment, but she recommended a section 38 interim hospital order focussing, no doubt, on the plea of guilty to the section 20 offence and not looking at the outstanding trial to come on the section 18 offence. She justified that conclusion.

The final report of Dr Dimond is dated 15 May 2014. I should say that there had been an adjournment at the defence request for the trial fixed for 10 July because of the comparatively late service of Crown reports. The adjournment of the trial led to, or gave time for, the further report from Dr Dimond. In this report she expressed the view that the claimant "may have experienced a psychotic illness characterised with delusions about the victim". This required further assessment. Her opinion in terms of degree had returned to the possibility rather than the probability of such an illness, but she remained of the view that command hallucinations were unlikely. She then turned to what she described as the issue of disposal. It was important that there be a comprehensive in-patient assessment, in her view. She expressed the view that there should be admission pursuant to section 36 of the Mental Health Act 1983.

That was the state of the psychiatric evidence in which the Crown made the application to the trial judge for a section 35 order. It appears that the precise provision under which the application was made was not clear, at least to the defendant, until the application came to be heard. Mr Brady, then as now appearing for the Crown, made it clear that it was an application under section 35.

The judge divided the hearing into two parts: one he described as jurisdiction and the other as merits or discretion. I have to say that his dividing of the issues in the way he did served to deflect his attention from what the real issue in the case was. The jurisdiction issue, in which he concluded that he had jurisdiction, seemed to relate to whether the in-patient assessment which would underlie the section 35 application was necessary or reasonable. He concluded that it was and therefore that he had jurisdiction to go on and consider a number of other issues that were raised, including the question of whether there was a sufficient prospect of anything valuable emerging from the investigation, the undoubted stress to the claimant and the risk of deterioration of his mental condition which would arise. The judge introduced the jurisdictional issue, saying this by way of background rather than by way of delineation of the issue:

It is not disputed, and it remained the position throughout the hearing and accepted by Mr Brady before us, that the purpose of the in-patient assessment was to enable Dr Dimond to clarify her diagnosis, and in so far as that was possible then to use that clarification to inform a judgment which she would make, firming up, no doubt, on what she had already said in her reports about the capability of the claimant to form the necessary intent for a section 18 offence.

There was no particular diagnosis which was to be clarified, no particular aspect, but the purpose of the clarification was undoubtedly clear: it was so that evidence in relation to capability of informing an intent could be given, directly relating to the one issue between Crown and defendant at the trial, unless her conclusions persuaded the prosecution no longer to proceed with the section 18 offence.

When the judge heard evidence and delivered his ruling on issues of discretion, the basis upon which he did so was the same (but with minor qualifications) as that which he indicated at the outset of his ruling on jurisdiction. In his ruling on the merits, he said (page 18 of the transcript) that whilst the case was properly conducted in an adversarial way it was important in the serious and tragic case actually to try to get to the truth:

He then referred to another aspect, which he described as an "overriding aspect" in the sense that it overrode the particular position of the defendant, whose condition might be worsened, and that of his family, which he described as:

For all that, it remains abundantly clear throughout the arguments that although clarification of diagnosis was what was hoped to be achieved, the purpose of achieving that clarification was to advance the Crown's position for better, or perhaps for worse, in relation to section 18 and the capability of forming an intent.

The question therefore arises as to whether section 35 of the Mental Health Act 1983 permits an order to be made with the purpose of obtaining evidence, obviously which the Crown would seek to use if it assisted them at a criminal trial, relating to an issue between the parties, but which evidence would have been obtained as a result of the compulsory detention in hospital for investigation of the defendant. It may be that the judge did not see the issue quite in that way, but it is the jurisdictional issue which lies at the heart of this case.

I say straightaway that this is not an issue on which there is any direct authority, but it is confirmed by Mr Brady and Mr Pownall, and my Lord in the course of argument, that they have not come across the powers in section 35 being used for this purpose.

I turn to section 35 of the Mental Health Act. It is one of a group of sections which were introduced by the 1959 Act to deal with a lack of nuanced powers to deal with mentally or potentially mentally disturbed offenders or persons awaiting trial. Section 35 concerns a remand to hospital for a report on an accused person's condition; section 36 deals with the remand of an accused person to hospital for treatment; and section 38 deals with an interim hospital order in relation to a convicted person for the purpose (I put simply) of his mental condition being assessed with a view to making an appropriate disposal: see also section 157 of the Criminal Justice Act 2003. It is of course open to the judge to make an order after any conviction under section 38, but that is not the power which was invoked.

Up to this point, the claimant had been on conditional bail for some 11 months, during which time the various bail conditions had been complied with. Accordingly, this would be, if the order were made, a remand in detention and the removal of bail for the time being.

Section 35(1) provides:

Subsection(3) provides:

In my judgment, those provisions do not permit an order to be made for the purpose of obtaining evidence relevant to an issue at trial. The purpose of an order under section 35 would be to inform a court about issues relating to fitness to plead and to disposal. In so far as evidence emerges which affects the view of the psychiatrists as to an issue which arises in the trial, or in so far as something is said in detention, during assessment or not, which the Crown seek to use against him, its admissibility will be subject to section 78 of the Police and Criminal Evidence Act 1984.

However, the fact that that safeguard exists in respect of the use of evidence emerging during a section 35 assessment does not begin to mean that the power in section 35 can be exercised for the purpose of obtaining evidence relevant to an issue in the trial. To obtain evidence in such a way means that a person has been detained for the purpose of obtaining that evidence. If an individual decides not to answer questions that are put to him, and says (as he might be advised to do) that he has given his explanation or otherwise declines to answer, he does so at the risk of answering under compulsion or prolonging his detention or being the subject of adverse comments. He would have no lawyer present, and the assessor would be in charge of his treatment. It clearly gives rise to real doubts that such evidence could ever be admissible in a court, for the very purpose for which the detention has been ordered, and shows that cannot be the purpose of a section 35 order. The use of the present tense in section 35 makes that very clear. The examination is of the present mental condition, of obvious relevance to fitness to plead and disposal. It is not an assessment of mental condition at the date in the past when the offence is alleged to have occurred. The past mental condition may or may not be illuminated by what is found now, but its assessment cannot lawfully be the purpose of a section 35 order. The order here was not made for looking at the present mental condition as such, but for a purpose beyond the powers conferred.

The reports suggest that Dr Dimond may have been more alert to the permissible purposes of detention for assessment since she suggested, not section 35, but section 38 and section 36, especially as the claimant had already pleaded guilty to the section 20 offence.

Although we have not had (and I make no complaint about this) the citation of authority from Strasbourg, it is very much to be doubted that detention for that purpose would be Article 5 compliant or the evidence, if produced and admitted, Article 6 compliant. Those considerations underpin my view as to the limitations of section 35.

Although the judge made reference to a public interest, the public interest in getting to the right diagnosis is circumscribed and fully met by the proper exercise of the powers in section 35. There is no further individual separate public interest which should inform his judgment under that provision.

The judge has also made references to safety, but the safety he referred to is the safety of an in-patient examination of this young man in a non-secure unit where he might be a voluntary in-patient. It is not suggested that there is any public safety requirement that requires his detention before trial. If after trial it is necessary for there to be an in-patient assessment, that is an entirely different issue.

I, for my part, recognise that there are some powerful arguments that have been raised before us by Mr Pownall in relation to the number of reports already available. The fact that there are a number of reports does not of itself, in my judgment, preclude the exercise of the power in section 35 if exercised for proper purpose. But the existence of a power in section 35(8), whereby an individual can obtain his own report and thereby achieve his release, indicates strongly that the task of a judge where such reports already exist is to examine those reports and reach a conclusion as to whether anything more useful about the diagnosis is to be obtained. That requires a careful analysis of the reports, which the judge eschewed. The existence of the power to seek release on the obtaining of one's own report for those in a position to do so also strongly militates against the construction which the judge put on the Act permitting him to order detention of an individual so that one person, albeit no doubt at times allowing the attendance of other doctors, could carry out an assessment for the benefit of one party. The purpose of it is to inform the court, not to advance one party's case.

There are other arguments that have been advanced in relation to the way the judge conducted the balancing exercise, in so far as the exercise he embarked upon was legitimate at all. I say no more about it, beyond expressing surprise that, if the judge thought that he had power to make the order for the purpose he did, he regarded the speculative possibility of greater clarification in the mind of a prosecution witness, given the risk of harm to the defendant, as being a proper basis for his order.

The question then arises as to whether, in the light of that judgment, the court is nonetheless precluded from making any order by virtue of section 29(3) of the Senior Courts Act, the well-known preclusionary provision of judicial review concerning matters relating to a trial on indictment. I express my view shortly on the first issue. I consider that a section 35 order may well be a matter relating to a trial on indictment. I say "may be", because it may be possible for the order to be made in circumstances which do not do so, but where it is made for the purpose of assessing fitness to plead, or made for the purpose of disposal, in my view it is a matter relating to a trial on the indictment; the more so here where the order was made so close to trial, after the section 20 plea and with the trial issue identified. So the effect of the preclusionary provision is, in my judgment, a very live issue. This is different from the bail cases dealt with at a very early stage post committal. The bail cases do not, at least as I understand them, relate to bail decisions very close to the point of commencement of the trial. Although bail would be revoked, the section 35 order is of a different significance for the trial from early bail decisions.

The jurisdiction of the court has been considered in a number of cases. I refer for these purposes only to two: the principles are set out in the judgment of Mitchell J, with which Kennedy LJ agreed, in R v Maidstone Crown Court ex parte Harrow London Borough Council at page 742-743, A-B. It is not necessary to set them out. That case was applied in R (on the application of Kenneally) v Crown Court at Snaresbrook & Ors [2001] EWHC Admin 968; [2002] QB 1169, a decision of the Divisional Court presided over by Pill LJ. Rafferty and Tomlinson JJ disagreed with Pill LJ on the question of whether the particular order in that case related to trial on indictment. I say no more about that issue. But they were all agreed, so there is a binding decision to the effect that, where an order is made relating to a trial on indictment, nonetheless it may be quashed in circumstances where the defect is so severe that it deprived the court below of jurisdiction to make it. The issue is described by Pill LJ between paragraphs 38-40 and by Tomlinson J in the majority between paragraphs 50 and 51. The question is whether there is a jurisdictional error of such gravity as to take the case out of the jurisdiction of the Crown Court. I am satisfied that a misinterpretation of the scope of section 35 of the sort which occurred here falls within jurisdictional error of that gravity, and this court is entitled to quash the order.

I would point out as well that if the claimant were to be detained, it is my judgment that, freed from the shackles of section 29(3) limitation, an application for habeas corpus would succeed, and the fact that it may be superficially supported by an order of the court would not avail the Crown or any hospital because of the reasoning in Re S-C (Mental Patient: Habeas Corpus) Times Law Reports (December 1995) (CA), in the judgment of Sir Thomas Bingham.

For those reasons, I am satisfied that this application succeeds. The order of HHJ Hopmeier is quashed.

MR JUSTICE GRIFFITH WILLIAMS: I agree. I have nothing to add.

MR POWNALL: My Lord, we do seek an order for costs, both here and below pursuant to section 51(1) and (3) of the Senior Courts Act 1981, especially, so we would submit, given the refusal of the Crown Prosecution Service of the offer that was made in respect of the Priory. We respectfully submit that there should be a payment on account, there being no good reason for not so doing, pursuant to part 44.2(8) of the White Book Volume 1 at page 1386.

MR JUSTICE OUSELEY: Are the costs contested?

MR BRADY: I cannot contest costs, my Lord.

MR JUSTICE OUSELEY: There will be an order for costs in your favour.

MR POWNALL: Forgive me for appearing persistent, it has been a long day, particularly for my Lords, but we do persist in asking for a payment on account. We invite the court so to order.

MR JUSTICE OUSELEY: Do I have a schedule?

MR POWNALL: No.

MR JUSTICE OUSELEY: I would not normally make an interim order without a schedule. I have no idea. It is not uncommon to make an order, and I normally make an interim order, but I am not prepared to make an interim order without a sense, and without Mr Brady seeing, what the costs are. What I would suggest you do, I will make an interim order, subject to anything my Lord will say, but I am not going to do so without seeing a schedule of costs. Send it to Mr Brady; if he wants to take issue with it, do so. I will, with my Lord, discuss that before the end of term.

MR POWNALL: I am very grateful.

MR JUSTICE OUSELEY: So you can get it to us next week? Mr Pownall, may I trespass on your good offices to produce an order quashing the order, making the order for the payment of costs, and there be an interim order ordering interim payment in a sum to be assessed?

MR POWNALL: Certainly.

MR JUSTICE OUSELEY: I would like the papers no later than Thursday next week.

MR POWNALL: Certainly.

MR JUSTICE OUSELEY: Your papers in time for Mr Brady to have replied so we can deal with the order. Make the order no later than Friday next week.

MR POWNALL: I am very grateful. Thank you very much.

MR JUSTICE OUSELEY: Thank you.