R (A) v Harrow Crown Court

JurisdictionEngland & Wales
JudgeMr Justice Stanley Burnton
Judgment Date14 August 2003
Neutral Citation[2003] EWHC 2020 (Admin)
Date14 August 2003
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/2582/03

[2003] EWHC 2020 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


The Honourable Mr Justice Stanley Burnton

Case No: CO/2582/03

The Queen On The Application Of:
Harrow Crown Court
The Secretary Of State For The Home Department
First Interested Party
West London Mental Health Nhs Trust
Second Interested Party

Mark Mullins (instructed by Kaim Todner) for the Claimant

Martin Chamberlain (instructed by the Treasury Solicitor) for Harrow Crown Court and the Home Secretary

West London Mental Health NHS Trust did not appear and was not represented

Mr Justice Stanley Burnton



1. In these proceedings, the Claimant seeks:

i) An order quashing the order made by Harrow Crown Court on 11 September 2002 requiring him to be detained in the Three Bridges Unit of the West London Mental Health NHS Trust.

ii) An order requiring Harrow Crown Court to correct its records relating to the proceedings against him.

iii) A declaration that his detention resulting from the order of 11 September 2002 infringed his rights under Article 5.1 of the European Convention on Human Rights.


2. There was originally in addition a claim for damages at common law and under sections 6 and 8 of the Human Rights Act 1998 for the Claimant's allegedly unlawful detention. Following a direction requiring the claim for damages to be particularised it was reconsidered by the Claimant and abandoned.


The facts


3. On the 1 August 2001, the Claimant, to whom I shall refer to as A, was involved in an incident of violence with two gentlemen to whom I shall refer to as victim 1 and victim 2. He was charged and committed to trial at Harrow Crown Court. There were three counts in the indictment against him. Count 1 charged him with causing grievous bodily harm with intent to victim 1, contrary to section 18 of the Offences Against the Persons Act 1861. Count 2 charged him with the same offence against victim 2. Count 3 charged an offence of affray.


4. As a result of concerns about A's mental health, psychiatric reports were obtained from Dr Martin Lock, a Consultant Forensic Psychiatrist, and subsequently from Dr Gandhi, a Consultant Psychiatrist. Dr Lock was of the opinion that A was unfit to plead and stand trial. In consequence, the Crown Court followed the procedure required by the Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. On 30 May 2002, the question of A's fitness to be tried was determined by a jury pursuant to section 4 of the 1964 Act. The jury found that he was indeed under a disability, that is to say that he was unfit to plead. In consequence, as required by section 4A of the 1964 Act, the trial on the indictment did not proceed further. A jury was empanelled to determine the question whether they were satisfied, as respects each of the counts in the indictment, that A did the act charged against him: see section 4A(2). The determination of those issues took place before His Honour Judge Bailey and a jury between 24 June and 26 June 2002. During the course of the hearing, the judge ordered that Count 2 be reduced to a charge of assault occasioning actual bodily harm. On 26 June 2002, the jury determined that A had done the act charged in count 2, but that he had not done the act charged in count 1 or that charged in count 3.


5. A again appeared before HH Judge Bailey on 11 September 2002. Surprisingly, it appears that everyone who participated in the hearing on that date had either forgotten, or was unaware, of the fact that A had been found unfit to plead, and therefore there had been no conviction: the judge, the court clerk, and counsel for A. Dr Lock gave evidence. His reports show that he was well aware of the difference between a finding of unfitness to plead but having committed the act charged and a conviction. However, the substance of his evidence as to the mental health and needs of A would not have been affected by the difference between the two legal procedures.


6. It is common ground that the order made by the judge on that occasion was a hospital order under section 37 of the MHA (“the MHA”) coupled with a restriction order under section 41. That that was the order the judge intended to make appears from the transcript of his sentencing remarks, during which the judge expressly referred to a restriction order under section 41. It is common ground that the effective order made by the judge was that announced in court rather than the written order produced by the Crown Court subsequently, but that does not matter in this case, since the judge's order is accurately reflected in the written order of the court, which purports to be a hospital order with restrictions under section 41 of the MHA.


7. On the basis of the order made on 11 September 2002, A was detained at the Three Bridges Unit. His mental health improved, and he was transferred to the Avebury Ward of Ealing Hospital. As a result of his solicitors’ representations, on 17 April 2003 he was assessed by two medical practitioners and an approved social worker. They determined that he did not meet the criteria for detention under section 3 of the MHA. Since that date he has remained on the ward as an informal patient.


Discussion: (a) the lawfulness of the order of 11 September 2002


8. An order under section 37 of the MHA may only be made “where a person is convicted before the Crown Court of an offence”. Where there are findings that the defendant is under a disability and did the act charged, the procedure under the 1964 Act does not result in a conviction or in the imposition of punishment: see the judgment of the House of Lords in R v H [2003] UKHL 1, [2003] 1WLR 411. A section 37 order is not an available order in such circumstances: R v Fairley [2003] EWCA Crim 1625. The Crown Court has power to make a similar, but legally different, order where findings are recorded that a person is under a disability and did the act charged against him: under section 5(2) of the 1964 Act, the court may make an order that the defendant be admitted, in accordance with the provisions of Schedule 1 to the 1991 Act, to such hospital as may be specified by the Secretary of State, and may give a direction under paragraph 2 of that Schedule that he be treated as if a restriction order under section 41 of the MHA had been made. An admission order is sufficient authority for the hospital managers to detain the person concerned: paragraph 1(3) of the First Schedule to the 1991 Act.


9. It follows that the order made by HH Judge Bailey on 11 September 2002 was one the Crown Court had no power to make. The appropriate remedy in a case such as the present is by way of judicial review. The order was not made on a trial on indictment. The exception to the judicial review jurisdiction in sections 28(2) and 29(3) of the Supreme Court Act 1981 therefore does not apply: see Fairley at [10] and the cases there referred to. The order of 11 September 2002 will be quashed.


10. The Claimant seeks in addition an order requiring Harrow Crown Court to correct its records so as to remove the references to A having been convicted of an offence. It follows from the order that I shall make that its records are inaccurate in so far as they record a conviction. Its records must be brought into line with the legal position resulting from my order of today. The court record suggests that the finding under count 2 was that A committed an act charged as causing grievous bodily harm with intent, rather than an offence under section 47 of the Offences against the Person Act 1861. I am sure that the record will be corrected once the Crown Court has seen this judgment without the need to make a separate order requiring that to be done. If it is not, further application may be made.


(b) The application of Article 5


(i) The contentions of the parties


11. The live issue argued before me concerns A's claim that his rights under Article 5 of the European Convention on Human Rights had been infringed. Article 5 is as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”


12. The relevant sub-paragraph in this case is (e), and for reasons summarised above not (a).


13. Mr Mullins submitted that A had been deprived of liberty, in consequence of the order made on 11 September 2002, otherwise than “in accordance with a...

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