R (South West Yorkshire Mental Health NHS Trust) v Bradford Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newman |
| Judgment Date | 27 March 2003 |
| Neutral Citation | [2003] EWHC 640 (Admin) |
| Date | 27 March 2003 |
| Docket Number | Case No: CO/3320/2002 |
| Court | Queen's Bench Division (Administrative Court) |
[2003] EWHC 640 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Newman
Case No: CO/3320/2002
Miss Kristina Stern (instructed by Hempsons Solicitors) for the Claimant
Mr Kris Gledhill (Instructed by Switalskis Solicitors) for the Interested Party
Mr Martin Chamberlain (instructed by Treasury Solicitors) for the Defendant
Mr. David Perry & Mr. Nigel Giffin for the Secretary of State for the Home Department – Interested Parties
1. This application for judicial review raises a number of points, including an important point in connection with the validity and effect of an order made by a superior court of record, where the order made is beyond the jurisdiction conferred by the statute pursuant to which the court purports to act.
2. On 27 and 28 February 2001 Mr A, the first Interested Party, appeared at the Bradford Crown Court before Mr Justice Goldring charged with the murder of his sister-in-law. Consultant psychiatrists on behalf of the defence and the prosecution agreed that Mr A was suffering from a paranoid psychosis characterised by persecutory disillusions and hallucinations, and that such illness was a mental disorder within the meaning of the Mental Health Act 1983 (“The 1983 Act”). The defence did not contest the prosecution's evidence as to whether or not Mr A committed the act of killing his sister-in-law on 7 September 2000. Further, the defence invited the court to make an admission order pursuant to The Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”) as substituted by The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (“the 1991 Act”). The defence also invited the court to order that Mr A be subject to restrictions under section 5(3) of the 1964 Act (as amended). At the time of the hearing Mr A was already an in-patient in the Yorkshire Centre for Forensic Psychiatry.
3. The jury retired at 2.50 pm on 28 February 2001 and on their retirement Mr Lawler, QC for Mr A, suggested to the judge that whilst the jury were deliberating time could be spent discussing the form of order which it was likely would be made. Mr Lawler had already provided the judge with a note on this topic. He drew the judge's attention to section 5 of the 1964 Act (as amended by the 1991 Act). In particular he drew the judge's attention to section 5(2). It provides -
“(2) Subject to subsection (3) below, the Court shall either –
(a) 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; or
(b) where they have the power to do so by virtue of section 5 of that Act, make in respect of the accused one of the following orders as they think most suitable in all the circumstances of the case, …..”
Schedule 1 to the 1991 Act to which Mr Justice Goldring's attention was drawn, provides as follows:
“ ORDERS FOR ADMISSION TO HOSPITAL
1.——- (1) An admission order, that is to say, an order for admission to hospital made—
(a) by a Crown Court under section 5 of the 1964 Act; or
(b) by the Court of Appeal under section 6, 14 or 14A of the 1968 Act,
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.
(2) 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 the hospital within the relevant period.
(3) Where a person is admitted within the relevant period to the hospital specified by the Secretary of State, the admission order shall be sufficient authority for the managers to detain him in accordance with the provisions of the 1983 Act referred to in paragraphs 2 and 3 below, as those provisions apply by virtue of those paragraphs.
(4) The relevant period for the purposes of this paragraph is—
(a) in relation to an admission order made otherwise than under section 14A of the 1968 Act, the period of two months;
(b) in relation to an admission order excepted by paragraph (a) above, the period of seven days,
beginning (in either case) with the date of which the order in question was made.”
The Judge's attention was drawn to paragraph 2 on the Schedule which provides:
“2.—(1) A person who is admitted to a hospital in pursuance of an admission order made otherwise than under section 14A of the 1968 Act shall be treated for the purposes of the 1983 Act—
(a) as if he had been so admitted in pursuance of a hospital order within the meaning of that Act made on the date of the admission order; and
(b) if the court so directs, as if an order restricting his discharge had been made under section 41 of that Act, either without limitation of time or during such period as may be specified in the direction.
(2) Where the offence to which the special verdict, findings or appeal relates is an offence the sentence for which is fixed by law, the court shall give a direction under sub-paragraph (1) (b) above without specifying any period.”
It is material to point out that Schedule 1 contains also paragraph 4(1)
“4.—(1) If while a person is detained in pursuance of an admission order made by virtue of section 5(1)(b) of the 1964 Act (findings of unfitness to plead etc.), the Secretary of State, after consultation with the responsible medical officer, is satisfied that that person can properly be tried, the Secretary of State may remit that person for trial either——
(a) to the court of trial; or
(b) to a prison; or
(c) to a remand centre provided under section 43 of the Prison Act 1952;
and on his arrival at the court, prison or remand centre, the order shall cease to have effect.”
4. Mr Lawler drew the judge's attention to the court's power to make an admission order. He stated:
“In other words your Lordship having made the admission order is obliged by statute to impose that it should be without restriction of time under section 41.”
But Mr Lawler then stated:
“Now, my Lord, the only qualifications to this that I have been able to discern are first of all that I take your Lordship, please, to page 756 of Archbold………. and to The Crime (Sentences) Act 1997 section 47. Now this appears to me to enable your Lordship to specify the hospital to which the defendant can go. Because under section 47, where there is a power, as here, under 47 (i) (d) you have the power to specify the hospital unit where he should go to. In other words Parliament is giving the judge who has heard the case the power to send to the hospital that he, no doubt on the evidence which he has heard, thinks is appropriate. So, in other words, it is a substitution of the Secretary of State's power as I understand it.
And so your Lordship can in fact – if you go back to my note – you can in fact direct, if you think it right, that the defendant should be taken forthwith to the Newton Lodge Regional Secure Unit.
Of course, thereafter, if for example the Secretary of State, in consultation with the doctors, should decide that the defendant should go somewhere else, there are other provisions, as I understand it, which will enable his transfer within the system, but that at least gives your Lordship the power.”
5. The judge was informed that there was a bed for Mr A at the Secure Unit. The jury returned at 3.16 pm and delivered their unanimous verdict that Mr A did the act charged against him. Mr Justice Goldring then made an order in these terms –
“As I observed when speaking to the jury, it is a very sad case. I am going to make the only order that I can in the circumstances, I order that you be admitted to a hospital – I am going to specify that hospital, it is Newton Lodge Regional Secure Unit in Wakefield – where a bed is immediately available and I order that you be conveyed there immediately.”
6. Regrettably, in suggesting that the judge had the power to substitute himself for the Secretary of State in specifying the hospital to which Mr A should be admitted, Mr Lawler led the court into error. Section 47 of the Crime Sentences Act confers no such power. The only order the court could make was an order that the accused be admitted “to such hospital as may be specified by the Secretary of State”. An admission order is an order for admission to such hospital as may be specified by the Secretary of State, it is not an order for admission to a specified hospital. Paragraph 1(2) of Schedule 1 to the 1991 Act enables the court,
“to 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 the hospital within the relevant period.”
The relevant period is two months.
7. Regrettably, error was then compounded by further error. The officer at Bradford Crown Court drew up and issued a form of order headed “Hospital Order with restrictions ordered under Section 41 of the Mental Health Act 1983”. It contained the following errors.
1) It recorded that the defendant had been convicted of murder.
2) It recorded that the court had ordered “that within 28 days from the date of this order that the defendant should be admitted to and detained in a hospital, namely Newton Lodge Regional Secure Unit, and that the...
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