R (Kenneally) v Snaresbrook Crown Court; R (on the application of Kenneally) v Rampton Hospital Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill |
| Judgment Date | 27 November 2001 |
| Neutral Citation | [2001] EWHC 968 (Admin) |
| Docket Number | Case No: CO/3607/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2001 |
[2001] EWHC 968 (Admin)
IN THE HIGH COURT OF JUSTICE
(DIVISIONAL COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Mrs Justice Rafferty Dbe and
Mr Justice Tomlinson
Case No: CO/3607/2000
CO/4577/2000
The Queen on the Application of
Edward Fitzgerald QC and Paul Bowen (instructed by Hodge Jones & Allen, London) appeared on behalf of the Applicant
Philip Sales (instructed by the Treasury Solicitors) appeared on behalf of the Respondents
1. The applicant Mr John Kenneally, seeks to quash an order of His Honour Judge Brooks made at the Snaresbrook Crown Court on 12 May 1997. The judge made a hospital order, with a restriction order, under section 51 of the Mental Health Act 1983 (“the 1983 Act”). The applicant is still detained pursuant to those orders. He also seeks a writ of habeas corpus ad subjiciendum. It is also submitted that if the Court holds that it has no jurisdiction as a Divisional Court, it should reconstitute itself as a Court of Appeal (Criminal Division) and consider an appeal against the order made.
2. The applicant appeared at the Crown Court charged with two offences of indecent assault on young girls. He had denied the charges in interview and pleaded not guilty to them on arraignment in the Crown Court on 6 December 1996. He had no relevant previous convictions. The order under section 51 was made at the request of counsel appearing for the applicant, counsel for the prosecution supporting the application on the basis that it was for the judge to decide whether the appropriate medical test was satisfied
Statutory background
3. Section 51 of the 1983 Act is derived from section 76 of the Mental Health Act 1959 and provides, insofar as is material:
“(1) This section has effect where a transfer direction has been given in respect of any such person as is described in paragraph (a) of section 48(2) above and that person is in this section referred to as the ‘detainee’.
(2) The transfer direction shall cease to have effect when the detainee's case is disposed of by the court having jurisdiction to try or otherwise deal with him, but without prejudice to any power of that court to make a “hospital order” or other order under this Part of this Act in his case.
…
(5) If … it appears to the court having jurisdiction to try or otherwise deal with the detainee—
(a) that it is impracticable or inappropriate to bring the detainee before the court; and
(b) that the conditions set out in subsection (6) below are satisfied,
the court may make a “hospital order” (with or without a restriction order) in his case in his absence and, in the case of a person awaiting trial, without convicting him.
(6) A “hospital order” may be made in respect of a person under subsection (5) above if the court—
(a) is satisfied, on the written or oral evidence of at least two registered medical practitioners, that the detainee is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for the patient to be detained in a hospital of medical treatment; and
(b) is of the opinion, after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make such an order.”
It is accepted that the applicant was at the material time “a detainee” within the meaning of the section. Section 48 permits the Secretary of State to direct the transfer of a person detained on remand to be detained in a hospital for medical treatment provided certain medical requirements are satisfied. It is common ground that the power was properly exercised in this case.
4. A hospital order is defined in section 37 of the Act and authorises the admission and detention of a person in such hospital as may be specified in the order. Section 41 confers on the Court a power to impose special restrictions upon a person subject to a hospital order.
5. Section 41(1) provides:
“Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as “a restriction order”.”
The special restrictions set out in the section have a substantial effect and include restrictions upon the discharge of the hospital order. That there is a power in the Crown Court under section 51 to make a hospital order, with a restriction order, without convicting the defendant is in my view clear.
The applicant's position
6. The applicant was 30 years old at the time the order was made. He had a long history of schizophrenia. He had on several occasions been compulsorily detained in hospital under section 3 of the 1983 Act, including for one period of four years. I do not intend to set out the medical evidence in detail because, having regard to the conclusion I have reached, it is not necessary to do so and a fresh consideration of the medical evidence may be required in future proceedings. I do not accept the submission of Mr Fitzgerald QC, for the applicant, that the judge was not entitled on 12 May 1997 to hold that the requirements of section 51(6) of the 1983 Act were satisfied. The judge had before him reports from Dr D Nevison-Andrews, consultant psychiatrist and Dr L Duggan, senior registrar in forensic psychiatry. Dr Duggan gave oral evidence. Subject to a point which arises as to the material which the judge was entitled to take into account under section 51, the evidence before the judge justified him in concluding, on a view of the evidence he was entitled to take, not only that a hospital order was justified but also that he could exercise the power conferred in section 51(5) to make the hospital order with a restriction order.
7. Before considering what happened in the Crown Court, it is necessary to decide whether this Court has jurisdiction to quash an order made in the Crown Court under section 51 of the 1983 Act. I do so having first concluded that the applicant had no right of appeal to the Court of Appeal Criminal Division. In the event Mr Fitzgerald QC argued only faintly for the existence of such a right. Section 9 of the Criminal Appeal Act 1968 provides that “a person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence ….” It is fundamental to the operation of section 51 that there has been no conviction. In the absence of a conviction, there is no appeal to the Court of Appeal and the possibility of the Court re-constituting as a Court of Appeal Criminal Division does not arise.
Section 29(3) of the 1981 Act
8. For the respondent, Mr Sales submits that section 29(3) of the Supreme Court Act 1981 (“the 1981 Act”) precludes any jurisdiction in the Court to quash. It provides:
“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court”.
9. Mr Sales draws a distinction between the penal system for dealing with mentally ill persons and the medical system. The penal system operates when, for example, a hospital order (with or without restriction) is made following conviction for an offence punishable by imprisonment. The medical system operates when, for example, a person is admitted to a hospital and detained there following application to the hospital for compulsory admission under sections 3, 4 or 5 of the 1983 Act and subject to the terms of those sections. Mr Sales submits that section 51 is at the interface of the two systems. The effect of an order is to pass the person detained from the penal system into the mental health system. The order itself is, it is submitted, part of the penal system. It is a determination which disposes of the subject matter of the indictment and as such it relates to trial on indictment. That is so whether or not the Court has completed its function when a section 51 order has been made. If it has not, it is open to the Crown Court to revert back to the penal mode and decisions taken relate to trial on indictment. The section 51 order can be regarded as a case management measure in the course of a trial on indictment. If the Court has completed its function, the matter has been disposed of. The section 51 order, which spares the defendant a trial on indictment, relates to trial on indictment.
10. Counsel referred to House of Lords decisions on this subject and to the analysis of them in this Court in R v Crown Court at Maidstone ex p Harrow London Borough Council [1993] 3 All ER 542. When considering the scope of the expression “relating to trial on indictment” in section 29(3) in Smalley v Crown Court at Warwick [1985] AC 622, Lord Bridge of Harwich stated, at p 643–4:
“It must not be thought that in using the phrase ‘any decision affecting the conduct of a trial on indictment’ I am offering a definition of a phrase which Parliament has chosen not to define. If the statutory language is, as here, imprecise, it...
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