Regina v. H (Appellant) (On appeal from the Court of Appeal (Criminal Division)).

The procedure under section 4A of the Criminal Procedure (Insanity) Act 1964 does not determine a criminal charge against a person found unfit to plead. It determines only whether the person did the act or made the omission charged, without deciding criminal intent.

The procedure may produce a final acquittal, but cannot produce a conviction or punishment. An adverse finding may lead only to protective, non-punitive measures and does not prevent a full criminal trial if the person later becomes fit. The criminal guarantees in article 6(2) and (3) of the Convention therefore do not apply. Properly conducted with scrupulous regard for the accused's interests, the procedure is compatible with article 6.

The appellant was charged with two indecent assaults allegedly committed when he was 13. A jury found him unfit to stand trial. Under section 4A of the Criminal Procedure (Insanity) Act 1964, a second jury found that he had done the acts charged. He was absolutely discharged and required to register as a sex offender.

The Court of Appeal dismissed his challenge to the procedure: [2001] EWCA Crim 2024; [2002] 1 WLR 824. It certified whether section 4A was compatible with article 6(1), (2) and (3)(d) of the European Convention on Human Rights.

The central issue was whether a section 4A inquiry amounted, in substance, to the determination of a criminal charge, thereby attracting the Convention safeguards which an accused person found unfit to plead could not personally exercise.

1. Appeal dismissed unanimously. Lord Bingham delivered the leading speech. Lord Nicholls, Lord Hutton, Lord Hobhouse and Lord Walker agreed with his reasons. The section 4A procedure was compatible with article 6(1), (2) and (3) of the European Convention on Human Rights. The particular certified questions were answered in the negative.

2. Per Lord Bingham, the three criteria stated in Engel v The Netherlands (No. 1) (1976) 1 EHRR 647 governed whether the proceeding was criminal: its domestic classification, the nature of the alleged offence and the nature and severity of the possible penalty.

3. Domestic law did not classify the section 4A inquiry as a criminal trial. Once unfitness was found, the criminal trial ceased. The jury could acquit but could neither convict nor return a guilty verdict. Its oath and task differed from those of a trial jury. The inquiry addressed only whether the accused did the act or made the omission charged, not whether the required criminal intention existed.

4. The inquiry's purpose and function were not to decide whether the accused had committed a criminal offence. Although an adverse finding might attract stigma or protective legal consequences, it could not result in punishment. The available orders, including hospital admission, guardianship, supervision and treatment, or absolute discharge, were non-punitive. If an accused later became fit, an adverse finding did not bar a full criminal trial.

5. Per Lord Bingham, section 4A served a protective and investigatory function. It allowed the basic facts to be examined publicly, with counsel representing the accused's interests so far as possible. It struck a fair balance between protecting an unfit person who had done nothing wrong and protecting the public from a person who had committed an injurious act which would be criminal if accompanied by the required mens rea.

6. The criminal safeguards in article 6(2) and (3) therefore did not apply. Properly conducted, the procedure was fair, although it must always be administered with scrupulous regard for the accused person's interests. No procedural unfairness was alleged in this case.

1. House of Lords: The appeal was dismissed unanimously. The House affirmed the Court of Appeal's conclusion and held that the section 4A procedure was compatible with article 6 of the Convention: [2003] UKHL 1.
2. Court of Appeal (Criminal Division): The court dismissed the appellant's challenge to the jury's section 4A finding, but certified a point of law of general public importance: [2001] EWCA Crim 2024; [2002] 1 WLR 824.
3. Crown Court at Bradford: One jury found the appellant unfit to stand trial. A second jury found that he had done the acts alleged in both counts. He was absolutely discharged and his father was directed to have him registered as a sex offender.