R v M ; R v H ; R v Kerr (Fitness to Plead)
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD WALKER OF GESTINGTHORPE,LORD NICHOLLS OF BIRKENHEAD |
| Judgment Date | 30 January 2003 |
| Neutral Citation | [2003] UKHL 1 |
| Date | 30 January 2003 |
| Court | House of Lords |
[2003] UKHL 1
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hutton
Lord Hobhouse of Woodborough
Lord Walker of Gestingthorpe
(On appeal from the Court of Appeal (Criminal Division)).
My Lords,
The appellant was charged upon indictment with two offences of indecent assault committed against a girl aged 14. He was himself aged 13 at the time of the alleged offences. Before his trial in the Crown Court at Bradford he was examined by psychiatrists instructed on his behalf and on behalf of the Crown, who were agreed that he was unfit to stand trial. On 15 June 2000 a jury empanelled to decide whether he was fit to stand trial found that he was under a disability and so unfit. At a further hearing on 17 November 2000 a different jury (directed by Judge Adams) found that the appellant had done the acts alleged against him in each count of the indictment. On 11 January 2001 he was absolutely discharged on both counts and his father was directed to cause him to be registered as a sex offender. The appellant appealed against the finding of the second jury, contending that the procedure followed was incompatible with article 6 of the European Convention on Human Rights ("the Convention"), but the Court of Appeal (Rose LJ, Bell and Burnton JJ) rejected that contention and dismissed the appeal: [2002] 1 WLR 824; [2001] EWCA Crim 2024. The Court of Appeal however certified that a point of law of general public importance was involved in its decision and the House gave leave to appeal. The certified question is:
"Is the procedure defined by Section 4A of the Criminal Procedure (Insanity) Act 1964 compatible with an accused person's rights arising under Article 6(1), 6(2) and 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In particular:
(i) Does the procedure in so far as:
(a) it provides for an acquittal of the accused person in the circumstances defined by Section 4A(1) of the Act;
(b) it provides for a finding that the accused 'did the act' which constitutes the actus reus of the crime;
amount to the 'determination' of a criminal charge for the purposes of Article 6(1)?
(ii) Does a finding that an accused person 'did the act' which constitutes the actus reus of the crime of indecent assault, being a crime of basic intent, violate the presumption of innocence afforded by Article 6(2)?"
The legislative history
For over 200 years the statute law of this country has recognised and addressed, with growing sophistication and particularity, two allied but different problems. One of those problems arises where it appears that a person accused of committing a serious crime was, or may have been, in such a mental state at the time of committing it as to render him irresponsible, in the eyes of the law, for what he is said to have done. The second problem arises where it appears that a person accused of committing a serious crime, whatever his mental state at the time of committing it, is or may at the time of his trial be in such a mental state as to render him unfit to be tried. The evolving legislative response to these problems (conveniently labelled insanity and unfitness to plead) was briefly described in R v Antoine [2001] 1 AC 340 at 344-349 and 368-376, and it is unnecessary to repeat that summary. Over time, and in various statutes, certain rules came to be recognised and given effect:
(1) Those found to have been insane when committing the offence charged against them should not be convicted and punished in the same way as a sane defendant.
(2) Those found to be unfit to plead should not stand trial in the same way as a defendant who is fit to plead.
(3) Trial procedures are necessary to determine whether an accused person was insane when committing the offence charged and (as the case may be) whether he is fit to stand trial.
(4) These are issues appropriate (where the defendant is charged on indictment) to be determined by a jury, subject to the direction of a judge.
(5) Even though a person may be found not to have been responsible for his conduct because insane or (as the case may be) may be found unfit to stand trial in the ordinary way, such person may nonetheless represent a continuing threat to members of the public such that, in the interest of public safety, the detention of such person may be justified.
The challenge which underlay all the relevant legislative provisions was on the one hand to treat the accused person in a fair and humane way and on the other to protect the public against the risk of danger posed by a person who could not (because of insanity) be held fully responsible for his conduct or could not (because of unfitness to plead) be tried in the ordinary way to decide whether he was guilty or not.
Unfitness to plead: the current legislation
The detailed procedure governing unfitness to plead is now laid down by the Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. I shall quote the three crucial sections and then comment on each:
"4. Finding of unfitness to plead
(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 determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by a jury and -
(a) where it falls to be determined on the arraignment of the accused and the trial proceeds, the accused shall be tried by a jury other than that which determined that question;
(b) where it falls to be determined at any later time, it shall be determined by a separate jury or by the jury by whom the accused is being tried, as the court may direct.
(6) A jury shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
4A. Finding that the accused did the act or made the omission charged against him
(1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability.
(2) The trial shall not proceed or further proceed but it shall be determined by a jury -
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
(5) A determination under subsection (2) above shall be made -
(a) where the question of disability was determined on the arraignment of the accused, by a jury other than that which determined that question; and
(b) where that question was determined at any later time, by the jury by whom the accused was being tried.
"5. Powers to deal with persons not guilty by reason of insanity or unfit to plead etc
(1) This section applies where -
(a) a special verdict is returned that the accused is not guilty by reason of insanity; or
(b) findings are recorded that the accused is under a disability and that he did the act or made the omission charged against him.
(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 such one of the following orders as they think most suitable in all the circumstances of the case, namely -
(i) a guardianship order within the meaning of the Mental Health Act 1983;
(ii) a supervision and treatment order within the meaning of Schedule 2 to the said Act of 1991; and
(iii) an order for his absolute discharge.
(3) Paragraph (b) of subsection (2) above shall not apply where the offence to which the special verdict or findings relate is an offence the sentence for which is fixed by law."
From section 4 it is clear that the issue of a defendant's fitness to plead may be raised by the defence, or the prosecution, or even the court itself. The issue when raised will be tried by a jury, acting on the evidence of two or more medical practitioners of whom at least one must be approved by the Secretary of State as having...
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