R v Grant (Heather)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,LORD JUSTICE ROSE |
| Judgment Date | 22 November 2001 |
| Neutral Citation | [2001] EWCA Crim 2611 |
| Docket Number | Case No: CAO/2001/02835/W5CO/1980/2001 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 November 2001 |
[2001] EWCA Crim 2611
IN THE COURT OF APPEAL
(CRIMINAL DIVISION) AND
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Vice President of The Criminal Division
(Lord Justice Rose)
Mr Justice Richards and
Mr Justice Pitchford
Case No: CAO/2001/02835/W5CO/1980/2001
Mr P Cosgrove QC and Mr Hindson appeared for Grant
Mr P D Batty QC and Ms A L Richardson appeared for the Crown
Mr J Eadie appeared for the Secretary of State
This is the judgment of the court. The case concerns the statutory procedures relating to persons who have been charged with murder but are found to be unfit to be tried. In R v. Moore, Kerr and Haroon [2001] EWCA Crim 2024, the court considered the compatibility of the relevant procedures with the European Convention on Human Rights. The present case raises further issues concerning the procedures and their compatibility with the Convention.
The case arises out of the death of the appellant's boyfriend, John Mills, who lived with the appellant at her flat. Police were called to the flat on the evening of 26 May 2000 and found Mr Mills lying in a pool of blood. He had received injuries from which he died later that evening. The fatal injury was a stab wound to the left side of the neck, passing across the full width of the neck and exiting on the right side. The carotid artery and jugular vein had been transected. The haemorrhaging and shock resulting from the wound were the cause of death. A blow of mild to moderate force with a knife could have inflicted such a wound. In addition, there were four more superficial stab wounds on the rear of the torso, consistent with a flurry of blows one after the other and likely to have been inflicted after the main and fatal wound to the neck. There were no defence wounds.
In her initial account to police the appellant stated that Mr Mills had been stabbed by intruders. Forensic examination disproved her account. In the course of later interviews, she admitted that she had stabbed him. He had wanted to move away from the flat, she did not want him to move and they had quarrelled. He hit her twice and she lost her temper, picked up a knife and stabbed him in the neck. She also eventually admitted stabbing him in the back.
The appellant was charged with murder. On 27 March 2001 in the Crown Court at Newcastle-upon-Tyne, a jury found her to be under a disability so as to be unfit to be tried, pursuant to s.4(5) of the Criminal Procedure (Insanity) Act 1964, as amended. The jury heard evidence from three consultant psychiatrists. For the defence, Dr Elizabeth Milne concluded that the appellant had limited intellectual ability, classified as mild or moderate learning disability which, with the previous history of aggressive behaviour and lack of social and daily living skills observed during her admission to hospital, constituted mental impairment within the meaning of the Mental Health Act 1983. For the prosecution, Dr Susan Johnston concluded that the combination of deficits displayed by the appellant would be sufficient to fulfil the criteria of mental impairment as defined in the 1983 Act, and Dr Nicholas Land concluded that she had a significant learning disability. All the experts agreed that she was unfit to be tried, by reference to all the relevant criteria (understanding of the nature of the plea, understanding of the offence with which she was charged, understanding of court procedure, and ability to follow evidence in court and instruct her legal team). Both prosecution and defence invited the jury to conclude that the appellant was not fit to be tried on the indictment.
On 3 April 2001 a second jury at the same court found that the appellant had committed the act charged against her as the offence, namely the stabbing of Mr Mills. That finding was made pursuant to s.4A of the 1964 Act. The judge, the Recorder of Newcastle, thereupon made the order prescribed by s.5(2) of the 1964 Act and Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. The order was that the appellant be admitted to such hospital as might be specified by the Secretary of State, together with a direction equivalent in effect to a restriction order under s.41 of the Mental Health Act 1983 without limitation of time.
Before the second jury was empanelled, counsel appointed by the court to act on behalf of the appellant submitted that in relation to the question whether the appellant did the act charged against her as the offence of murder, they should be allowed to put before the jury the defences of lack of intent and provocation. To the extent that that course was precluded by the decision of the House of Lords in R v. Antoine [2001] 1 AC 340, the decision pre-dated implementation of the Human Rights Act 1998 and was contrary to the Convention and should not be followed. If the jury was limited to considering whether the appellant did the act which constituted the actus reus of murder, without considering the question of manslaughter, and the judge had no discretion as to the order to be made following a finding that the appellant did the act, then the statutory provisions were incompatible with Articles 5(1) (e) and 6(1) of the Convention. The judge rejected those submissions and the matter was put before the jury on the basis that its task was simply to decide whether the appellant did the act of stabbing.
Following the jury's finding that the appellant did the act of stabbing, the judge certified that the case was fit for appeal on the ground that "where, on an indictment alleging murder, the accused person has been found to be under a disability so as to be unfit to plead, the 'defences' of (a) lack of intent and/or (b) provocation should be available to the accused person and should be left to the jury where there is evidence to support them". Pursuant to the certificate the appellant lodged an appeal which, as amended by leave granted by us, is an appeal against the jury's finding that she did the act charged against her.
In relation to his order under s.5 of the 1964 Act the judge stated a case for the opinion of the High Court. The question is in these terms:
"The question for the opinion of the High Court is whether the statutory provisions of Section 5 of the Criminal Procedure (Insanity) Act 1964 (as substituted by Section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991), Schedule 1 to the 1991 Act, and Section 41 of the Mental Health Act 1983, whereby a Judge of the Crown Court is obliged to make a mandatory order containing restrictions on the liberty of the accused person where the accused person has been found to have committed an act which constituted the actus reus of murder and where that person was indicted for murder without there being any determination by an independent and impartial tribunal as to whether the appropriate count was one of murder or manslaughter, are incompatible with the human rights of the accused person under Articles 5(1) (e) and 6(1) of the European Convention on Human Rights and so are contrary to the provisions of Section 6 of the Human Rights Act 1998."
The two appeals raise overlapping issues and have been listed together for hearing before us, constituted both as the Court of Appeal (Criminal Division) and as a Divisional Court.
Although a question as to jurisdiction was raised in the skeleton arguments, it was common ground in the oral submissions before us that the court has jurisdiction to entertain both appeals. An appeal lies under s.15 of the Criminal Appeal Act 1968 against the jury's finding that the appellant did the act charged against her: see e.g. R v. Antoine. The grant of a certificate by the trial judge satisfies the conditions laid down in s.15(2). An appeal by way of case stated lies to the Divisional Court against the judge's order under s.5 of the 1964 Act. An appeal is not barred by s.28(2) of the Supreme Court Act 1981, since the trial on indictment terminated once the jury had held under s.4(5) of the 1964 Act that the appellant was under a disability so as to be unfit to be tried. Hearings under s.4A of the 1964 Act are therefore not trials on indictment (see R v. Moore, Kerr and Haroon at paragraph 19) and neither the findings made in those hearings nor the resulting order under s.5 are matters relating to trial on indictment within the meaning of s.28(2) of the 1981 Act. ( R v. Snaresbrook Crown Court, ex parte Demaar, judgment of the Divisional Court dated 16 June 2000, relates to an order made after a special verdict of not guilty by virtue of insanity and is distinguishable.)
The relevant provisions of the 1964 Act are these:
"4(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.
(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.
(3) If, before the question of fitness to be tried falls to be determined, the jury return 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.
(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be...
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