F, R v

Following a finding that an accused is unfit to plead and did the acts charged, the court must make a disposal authorised by section 5 of the Criminal Procedure (Insanity) Act 1964. A hospital order under section 37 of the Mental Health Act 1983, and an associated restriction order under section 41, are unavailable where there has been no conviction.

There is no appeal against such a disposal as an appeal against sentence. The proper route is judicial review in the Divisional Court. A finding of unfitness ends the trial, so proceedings to determine whether the accused did the acts and a consequential disposal are not matters relating to a trial on indictment for the statutory bar on review.

The applicant was charged with burglary after entering the complainant's flat and taking property. A jury at Woolwich Crown Court found him unfit to plead. A fresh jury then found that he had done the acts alleged.

Although there had been no conviction, the Crown Court made a hospital order under section 37 of the Mental Health Act 1983 and a restriction order under section 41. An earlier application for leave to appeal against sentence had been refused.

After a Mental Health Review Tribunal recommended remission for trial, the applicant sought judicial review. The central issues were whether the disposal orders were lawful and whether the Divisional Court had jurisdiction to correct them.

1. Judicial review was granted. The court set aside the purported hospital and restriction orders and remitted the matter to the Crown Court for a lawful disposal.

2. Section 5(2) of the Criminal Procedure (Insanity) Act 1964 governed disposal after the findings that the applicant was under a disability and had done the acts alleged. It required an admission order under Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, subject to the statutory alternatives. Orders under the Mental Health Act 1983 were not among those alternatives.

3. A section 37 order could only be made where a person had been convicted. The applicant had not been convicted. A section 41 restriction order could only accompany a lawfully made section 37 order. Both orders were therefore ultra vires.

4. The court held that the earlier Court of Appeal proceedings had been misconceived. Section 9 of the Criminal Appeal Act 1968 permitted an appeal against sentence only after conviction. Section 15 provided appeals against the findings of disability and of doing the acts alleged, but not against the consequential disposal.

5. Per Lord Justice Kennedy, giving the judgment, the finding of unfitness immediately ended the trial, applying R v Antoine [1999] 2 Cr App R 225. Following Grant, proceedings under section 4A and an order under section 5 were not a trial on indictment or a matter relating to one. Section 28(2) of the Supreme Court Act 1981 therefore did not bar judicial review.

6. On remittal, the Crown Court was to make appropriate orders under section 5. It could consider current medical evidence when deciding whether to direct that the applicant be treated as subject to a restriction order for the purposes of the Mental Health Act 1983.

• Divisional Court — granted permission for judicial review, set aside the section 37 and section 41 orders, and remitted the matter to the Crown Court for disposal under section 5 of the Criminal Procedure (Insanity) Act 1964.

• Court of Appeal (Criminal Division) — on 14 February 2002 refused leave to appeal against sentence. This court held that there could be no such jurisdiction because there had been no conviction.

• Woolwich Crown Court — a jury found the applicant unfit to plead; a fresh jury found that he had done the acts alleged. The court then made the hospital and restriction orders later set aside.