R (Juncal) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE WYN WILLIAMS |
| Judgment Date | 19 December 2007 |
| Neutral Citation | [2007] EWHC 3024 (Admin) |
| Docket Number | Case No: CO/2416/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2007 |
[2007] EWHC 3024 (Admin)
The Honourable Mr Justice Wyn Williams
Case No: CO/2416/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Richard Gordon QC and Mr Denis Edwards (instructed by Messrs Campbell-Taylor Solicitors) for the Claimant
Mr Martin Chamberlain (instructed by The Treasury Solicitors for the First, Third and Fourth Defendants and Messrs Bevan for the Second Defendant)
Hearing dates: 23 October 2007
Mr Justice Wyn Williams : :
On 16 December 1997 the Claimant appeared at the Crown Court in Belfast, Northern Ireland. He was charged with an offence of unlawful wounding, contrary to section 20 of the Offences against the Person Act 1861. By that time at the latest, as I understand it, an issue had arisen as to whether or not the Claimant was fit to be tried. As of December 1997 the resolution of such an issue was governed by The Mental Health (Northern Ireland) Order 1986 (hereinafter referred to as "the Order") although, as I understand it, this provision has been substantially amended. By virtue of Article 49(4) of the Order the question of whether a person was fit to be tried was to be determined by a jury.
It is common ground in these proceedings that a finding was made in the criminal proceedings that the Claimant was not fit to be tried. Although there is no transcript of the proceedings before the Belfast Crown Court it seems to me to be the inevitable inference that the determination that the Claimant was unfit to be tried was made by a jury.
Article 49 of the Order also made provision for what was to occur once a finding of unfitness had been made.
"(5) Where in accordance with paragraphs (2) to (4) it is determined that the accused is unfit to be tried –
(a) the court shall direct a finding to that effect to be recorded; and
(b) the trial shall not proceed or, as the case may be, proceed further.
(6) Where a court has directed that a finding be recorded in pursuance of paragraph 5(a), the court shall order that the person to whom the finding relates shall be admitted to hospital.
(7) An order under paragraph (6) shall have the same effect as a hospital order together with a restriction order made without limitation of time.
(8) Where the Secretary of State is notified by the responsible medical officer that a person detained in a hospital by virtue of an order under paragraph (6) no longer requires treatment for mental disorder, the Secretary of State may remit that person to prison or to a remand centre or remand home for trial by the Crown Court at the place where, but for the order, he would have been tried, and on his arrival at the prison, remand centre or remand home the order under paragraph (6) shall cease to have effect."
As I understand it, the Claimant was found to be unfit to be tried by reason of his unfitness to plead. That was permissible by virtue of Article 49(9).The Claimant was unfit to plead by virtue of mental illness. The order made by the Crown Court pursuant to Article 49(6) of the Order recites that the Claimant was suffering from the mental illness known as paranoid schizophrenia.
I should say at the outset that the order made by the Crown Court is not entirely consistent, in its form, with an order which would normally be made after a finding of unfitness to plead. That said, in my judgment, there can be little doubt but that the Claimant was found to be unfit to plead and that the order drawn by the Court was intended to reflect that fact and the consequences which followed it pursuant to Article 49 of the Order.
Since 16 December 1997 the Claimant has been detained within hospitals. I will set out the details and the relevant statutory provisions under which that was authorised in the next section of this judgment.
In the Claim Form issued in these proceedings the Claimant challenges the lawfulness of his current and continuing detention. At the hearing before me, however, detailed submissions were addressed to me upon the issue of whether or not the Claimant's detention has been lawful from its inception.
There is one further provision of the Order which I should mention. Article 49(3) is in the following terms:—
"(3) If, having regard to the nature of the supposed mental condition of the accused, the court is of opinion that it is expedient so to do and in the interests of the accused, the court may –
(a) postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence; and
(b) if, before the said question falls to be determined, the jury returns a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined."
THE HISTORY OF THE CLAIMANT'S DETENTION AND THE RELEVANT STATUTORY PROVISIONS
Following the making of the order on 16 December 1997 the Claimant was detained for a short period of time within Northern Ireland. On 30 December 1997 an order was made authorising the Claimant's removal to Scotland. The order was made pursuant to section 81 of the Mental Health (Scotland) Act 1984. It is unnecessary to recite the provisions of that section in full. It is sufficient to record that the power conferred by section 81 was exercisable only if it was established to the satisfaction of the Secretary of State for Northern Ireland that it was "in the interests of the patient to remove him to Scotland, and that arrangements had been made for admitting him to a hospital …….."
On 8 January 1998 the Claimant was admitted to the State Hospital in Carstairs, South Lanarkshire. Following his admission at that hospital a substantial medical report was prepared upon him by Dr Colin Gray, a consultant forensic psychiatrist. That report is dated 4 February 1998 and I will return to some of its contents in due course.
The Claimant remained at the State Hospital from 8 January 1998 to 14 June 2005. On that second date the Claimant was transferred from that hospital to the John Howard Centre, Hackney London. He was so transferred pursuant to the powers contained within section 77 Mental Health (Scotland) Act 1984 which, in summary, permitted the removal of a patient detained in Scotland to England and Wales. Again, such removal was permitted only if it was established to the satisfaction of the Scottish Ministers, who had inherited this function of the Secretary of State for Scotland "in the interests of the patient to remove him to England and Wales." As I understand it, the Claimant remains detained at the John Howard Centre.
As I have indicated, the Claimant was transferred from Northern Ireland to Scotland pursuant to the power contained within section 81(1) of the Mental Health (Scotland) Act 1984. Section 81(2) of that Act is in the following terms:—
"……where a patient who is liable to be detained under this Act by virtue of an application, order, or direction under any enactment in force in Northern Ireland is removed under this section and admitted to a hospital in Scotland, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application forwarded to the managers of the hospital, or an order or direction made or given, on that date under the corresponding enactment in force in Scotland……………"
For all practical purposes, an identical provision exists in section 77(2) of the 1984 Act in relation to the Claimant's removal from Scotland to England and Wales.
In 1998, the only possible "corresponding" enactment in force in Scotland was section 57 of the Criminal Procedure (Scotland) Act 1995. In 2005 the only "corresponding" enactment in England and Wales to section 57 of the Criminal Procedure (Scotland) Act 1995 was the Criminal Procedure (Insanity) Act 1964 (as amended).
The Criminal Procedure (Scotland) Act 1995 is materially different to the Order. As is apparent from what has been set out above the Order required only an investigation into whether or not the Claimant was unfit to be tried. Once such a finding was made a hospital order followed. By virtue of section 54 of the Criminal Procedure (Scotland) Act 1995, however, before a hospital order could be made in Scotland it was necessary not to just to establish whether the Claimant was fit to be tried but also whether he had carried out the acts or made the omissions which were the substance of the offence with which he was charged. Under the Scottish legislation this was categorised as "examining the facts".
By the time of his transfer to England the Criminal Procedure (Insanity) Act 1964 as amended also made it mandatory that the relevant act or omission be proved for a hospital order to be made.
It can be seen from the foregoing that there appears to be a chain of statutory provisions and orders made thereunder which have authorised the Claimant's detention in the various hospitals where he has been detained between 16 December 1997 and the present.
THE PROCEEDINGS AT THE BELFAST CROWN COURT
As I indicated above no transcript of these proceedings was provided to me. The Claimant's own recollection is that the hearing of the Belfast Crown Court which he attended and when the hospital order was made lasted no more than about five minutes. As I understand it those are the...
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