R v Maidstone Crown Court ex parte LB Harrow
| Jurisdiction | England & Wales |
| Judgment Date | 30 April 1999 |
| Date | 30 April 1999 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference:Administrative Court ; CO/3111/98
Kennedy LJ, Mitchell J
Appearances: S Farrell (instructed by the Solicitor to the Council) for Harrow; H Hobhouse (instructed by the Treasury Solicitor) for the Court; K Gledhill (instructed by Philip Sheldrake) for HW.
Whether a supervision order under s. 5 Criminal Procedure Act 1964following a judge purporting to accept a special verdict of Not Guilty by Reason of Insanity without empanelling a jury could be challenged by judicial review.
HW was charged with arson; when he appeared at the Crown Court, the unanimous medical evidence was that he had been legally insane at the time of the offence. The prosecution accepted this evidence, and, on 29 May 1998, the judge purported to accept a plea of "Not Guilty By Reason of Insanity" without empanelling a jury. The judge then proceeded to sentence and made a supervision order under s. 5 Criminal Procedure (Insanity) Act 1964 placing HW under the supervision of the probation service for 2 years, with a condition of treatment by a named doctor. A written order was issued to reflect this. However, the written order was reissued on 9 June and purported to place HW under the supervision of the social services department of LB Harrow rather than the probation service; this was done at the request of a court probation officer.
When the order came to the attention of LB Harrow, which had not been consulted in advance, it applied to the Crown Court to set aside the order: this was because it had not been consulted in advance, and because the named doctors were unwilling to offer supervision (in part because HW had moved to Harrow, outside their area). The matter was listed on 25 July 1998 in front of a different judge because of the retirement of the sentencing judge; he declined to intervene.
The local authority then applied to quash the supervision order by judicial review, arguing that the absence of a jury verdict meant that the order was ultra vires and so void. The Court and HW argued that, whilst there was a procedural defect, the order was a matter relating to trial on indictment and so excluded from the scope of judicial review by s. 29 Supreme Court Act 1981.
Mitchell J
1. On 10 November 1997 the Folkestone and Hythe justices committed the defendant, a man named Howard Watkin, for trial in the Crown Court at Maidstone. He was charged with arson. Following his arrest he had been remanded in custody. On 27 February 1998, pursuant to an order under s. 35 of the Mental Health Act 1983, he was transferred from prison to a unit at St Martin's Hospital. He was returned to the prison in late May 1998. Various reports were prepared on his mental state by no fewer than 4 doctors: Dr Sittampalam, Dr Wood (of St Martin's), Dr White (a colleague of Dr Wood), and Dr Dunkley. His fitness to plead was not in dispute. More significantly, there was a consensus that at the time of the offence the accused, in the legal sense, was insane. Having, on 16 January 1998, pleaded not guilty to each of the 2 (alternative) counts in the indictment, on 29 May 1998 he was re- arraigned before HHJ Coombe and entered a plea to count 2 of "not guilty by reason of insanity." The prosecution did not dispute the psychiatric evidence. After a short discussion between counsel and the judge about s. 5 of the Criminal Procedure (Insanity) Act 1964, the judge proceeded to deal with the defendant. He said:
"It has been accepted that the plea you have entered this morning is an appropriate plea in all the circumstances What I propose making is a supervision and treatment order for a period of 2 years. That will mean that you will be under the supervision during that period of a probation officer and you will be required to comply with the reasonable requirements of the probation officer which will include treatment presumably either from Dr White or from Dr Wood. The object is obviously to assist you to overcome your problems and put these matters behind you. Are you content for an order in those terms to be made?
Defendant: Yes, I am.
Judge Coombe: Very well. In those circumstances there will be a Supervision and Treatment Order under the provisions of the Criminal Procedure Insanity Act and that will be for a period of 2 years."
2. There was no pre-sentence report before the court nor was the probation service consulted prior to the making of that order. That same day, the first steps were taken by the probation service to transfer the supervision to the social services. Before that was achieved, the Crown Court issued a supervision order, dated 2 June 1998, which was couched (inaccurately) in these terms:
"The defendant Howard Kenneth Watkin whose address is was on 29 May 1998 at Maidstone Crown Court found guilty of arson being reckless as to whether life is endangered. On 29 May 1998 the defendant was ordered to be supervised by a probation officer in the petty sessions area of Harrow for 2 years. It was further ordered that the defendant should for a period of 2 years submit to treatment by or under the direction of a fully-registered medical practitioner, namely Dr White or Dr Wood."
3. A week or so later another supervision order, dated 9 June 1998, was issued "administratively":
"The defendant Howard Kenneth Watkin whose address is was on 29 May 1998 at Maidstone Crown Court found not guilty by reason of insanity of arson being reckless as to whether life is endangered. On 29 May 1998 the defendant was ordered to be supervised by Harrow social services department for 2 years. It was further ordered that the defendant should for a period of 2 years submit to treatment by or under the direction of a fully registered medical practitioner, namely Dr White or Dr Wood."
4. This apparent transfer of supervision to Harrow social services department was recorded without any reference to the judge. It was done at the behest of a probation officer who spoke to a clerk (or clerks) in the court office at Maidstone. At no stage had Harrow social services been consulted as to their willingness to supervise the defendant for a period of 2 years or at all. The confusion becomes more acute for these additional reasons. First, the 2 doctors named in each order were now unwilling to treat him, given that he had moved to Middlesex. Indeed Dr White has stated that she had never offered herself as the medical practitioner prepared to treat. Second, on 25 June, at the request of Harrow social services department, the case was listed again. It came before HHJ Griffiths. Counsel for the social services department informed the judge that the department had never been consulted about the order. She was referring of course to the order of 9 June. During the the short hearing there was the following exchange between counsel and HHJ Griffiths:
"Judge Griffiths: What is it that you are asking me to do with this order today?
Miss Veats: At the moment I say that the order which has been made is not
Judge Griffiths: It is not lawful.
Miss Veats: It is not lawful because the actual criteria
Judge Griffiths: There are 2 problems. I was not the judge that made the order. That is the first problem. That judge has now retired. Today is the last day upon which the order can be reviewed. The 28-day period, I think I am right in saying, was from when the order was originally made on 29 May At the [expiration] of 28 days this court is functus officio, I think. What are you asking me to do?
Miss Veats: I am in some difficulty because obviously the local authority do not wish to be obstructive, but at the same time they want to meet their obligations under the Act and indeed be satisfied that this is an appropriate order which they can properly manage.
The clerk of the court: I can confirm that HHJ Coombe was not consulted when the order was amended. It was amended at the request of a probation officer.
Judge Griffiths: I think we are all in some difficulty, but I am loath Unless there is power and a real alternative at this stage, then I do not think I ought to interfere with the order at all."
5. The provision HHJ Griffiths clearly had in mind when he referred to "the 28-day period" was s. 47 of the Supreme Court Act 1981. Regardless of the date, that provision was not available to remedy the situation. First, because s. 47(1) relates to the alteration of "a sentence imposed or other order made when dealing with an offender " The defendant was not "an offender" at the time HHJ Coombe made the s. 5 order. Nor would he have been "an offender" had the order been made following a jury's special verdict of "not guilty by reason of insanity." This point is further considered later in the judgment. The second reason for s. 47 being unavailable to remedy the situation which confronted HHJ Griffiths is to be found in subs(4) which prohibits any variation or rescission under the section "except by the court constituted as it was when the sentence or other order was imposed or made "
6. It is perfectly true that there exists, quite independently of s. 47, what is known as "the slip rule" the operation of which is not subject to a time limitation. However the scope of the rule is narrow. It was considered (and applied) by the Court of Appeal in R v Saville [1981] QB 12. Lord Widgery CJ cited with approval, and applied, HHJ Rubin's formulation of the rule in R v Michael [1976] QB 414, 419. Lord Widgery said [1981] QB 12, 17:
"At p419 there is a passage in the judgment of HHJ Rubin, in which he says: 'In my judgment these cases' - he is referring to the authorities already cited - 'establish that this court, as a court of record, has an inherent jurisdiction to remedy mistakes in its record. There are 2 other cases to which I must refer which show, in my judgment, that an omission from an order should be rectified if it is of such a character that if it had been mentioned before the order had been entered the...
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