Regina v H

The House of Lords held that the procedure under section 4A of the Criminal Procedure (Insanity) Act 1964 (as amended) for determining whether a person found unfit to plead "did the act or made the omission charged" is not, in substance, a determination of a criminal charge for the purposes of Article 6 of the European Convention on Human Rights. The court applied the Engel tests: domestic classification, the nature of the procedure and the absence of penal consequences, and concluded section 4A is civil/administrative and protective rather than criminal. The court emphasised that section 4A cannot result in conviction or punishment and that its purposes include protection of both the accused and the public. The court therefore answered the certified questions in the negative and dismissed the appeal.

Background and parties:

• The appellant, aged 13 at the time of the alleged offences, was charged with two counts of indecent assault against a 14 year old girl. Psychiatric evidence led to a jury finding him unfit to stand trial. A second jury under section 4A found that he had done the acts alleged. He was absolutely discharged and ordered to be registered as a sex offender. The appellant appealed, arguing the section 4A procedure breached Article 6(1), (2) and (3)(d) of the European Convention on Human Rights.

Procedural posture: The Court of Appeal dismissed the appellant's challenge but certified a point of law of general public importance. The House of Lords granted leave and heard the appeal.

Nature of the claim and relief sought: The appellant contended that the section 4A procedure amounted in substance to the determination of a criminal charge, attracting the Article 6 protections (presumption of innocence and fair trial guarantees); because he was unfit to plead and could not participate in his defence, those guarantees were infringed and the procedure was incompatible with the Convention.

Issues framed:

• Whether section 4A(1)-(5) provides a procedure amounting to the determination of a criminal charge for the purposes of Article 6(1).
• Whether a finding that the accused "did the act" for a basic intent crime violates the presumption of innocence under Article 6(2).

Reasoning and outcome: The House applied the Engel v The Netherlands tests: (i) domestic classification — domestic law treats the section 4A process as distinct from criminal trial (no verdict of guilty, no punishment, different jury oath); (ii) the nature of the offence and procedure — although the finding may carry stigma, the section serves a forensic and protective function and excludes inquiry into mens rea; (iii) severity/penalty — the procedure cannot culminate in penal punishment and any disposals under section 5 are non-punitive and do not amount to conviction. The court relied on prior authorities (including R v Antoine and Scottish and domestic decisions) showing section 4A aims to balance protection of the defendant and protection of the public. The House concluded Article 6(1), (2) and (3) do not apply to the section 4A procedure and dismissed the appeal.

Appeal dismissed. The House of Lords held that the section 4A procedure in the Criminal Procedure (Insanity) Act 1964, as amended, does not amount to the determination of a criminal charge under Article 6(1) of the Convention, and therefore Article 6(2) and (3) do not apply to that procedure. The rationale was that the procedure cannot result in conviction or punishment, is designed to determine only the actus reus (not mens rea), and serves protective and investigative purposes for both defendant and public safety.

Appeal from the Court of Appeal (Criminal Division) which had dismissed the appellant's challenge: [2001] EWCA Crim 2024; reported [2002] 1 WLR 824. The House of Lords granted leave and heard the appeal resulting in this judgment [2003] UKHL 1.