A, R (on the application of) v Secretary of State for the Home Department & Anor

A hospital order under section 37 of the Mental Health Act cannot be made where an accused is found unfit to plead but to have done the act charged, because that procedure produces no conviction. The proper statutory route is an admission order under the Criminal Procedure (Insanity) Act 1964 and the 1991 Act. An unlawful or irregular Crown Court order may nevertheless remain legally effective until set aside. For Article 5 purposes, errors in the conduct of a hearing do not necessarily breach the requirement of a procedure prescribed by law. The decisive question is whether the resulting detention was lawful and non-arbitrary. Detention based on an effective court order, supported by findings of fact and medical evidence, was not arbitrary.

The claimant had been found unfit to plead. A jury subsequently found that he had done the act charged in one count, but no conviction was entered. The Crown Court later made a hospital order under section 37, coupled with a restriction order under section 41, and the claimant was detained in hospital.

The claimant sought judicial review, quashing of the order, correction of the Crown Court record, and a declaration under Article 5 of the European Convention on Human Rights. The central issues were whether the Crown Court had power to make the order, whether the order was legally effective before being quashed, and whether the resulting detention infringed Article 5.1.

1. The section 37 order was unlawful. Section 37 of the Mental Health Act requires a person to have been convicted before the Crown Court. A finding under the Criminal Procedure (Insanity) Act 1964 that an accused is under a disability and did the act charged does not result in a conviction or punishment. The proper order was an admission order under section 5(2) of the 1964 Act, with any restriction direction under Schedule 1 to the 1991 Act. The order was therefore quashed.
2. The order was nevertheless legally effective until set aside. The Crown Court is a superior court of record and a court of unlimited jurisdiction. Its orders must be obeyed unless and until set aside, even where they exceed its statutory powers or are irregular. The order was unlawful in that sense, but it was not a nullity. The detention resulting from it was lawful under domestic law before the order was quashed.
3. There was no breach of Article 5.1. The requirement that detention occur in accordance with a procedure prescribed by law concerns the substantial requirements of a fair procedure. Errors in the judge’s remarks, counsel’s submissions, or the form of order do not themselves establish a breach. Fundamental defects, such as denying an opportunity to be heard or to answer the case or evidence, may do so. No such defect occurred here.
4. For Article 5.1(e), detention pursuant to a court order will in principle be lawful unless the order or detention is arbitrary. The claimant’s detention rested on the jury’s finding that he had committed an assault and on undisputed medical evidence establishing the need for hospital treatment. It was not arbitrary.
5. The Crown Court record was inaccurate insofar as it recorded a conviction and had to be corrected. Following quashing, the court reconstituted itself as the Harrow Crown Court so that it could make any lawful order under section 5 of the 1964 Act or remand the claimant for a further hearing.