Chal, R. v

A hearing under section 4A of the Criminal Procedure (Insanity) Act 1964 must, so far as fact-finding is concerned, mirror a criminal trial. The jury must therefore determine whether the accused did the act charged by applying the criminal standard of proof and the same rules of criminal evidence and procedure.

Accordingly, hearsay that would be admissible at a criminal trial may be admitted at a section 4A hearing. It was unnecessary to decide whether the hearsay provisions of the Criminal Justice Act 2003 apply directly, since the same result follows from the required application of criminal evidential rules.

The appellant was charged with causing grievous bodily harm after an alleged attack on a fellow building worker with a sledgehammer. He was found unfit to stand trial. At a subsequent jury hearing under section 4A of the Criminal Procedure (Insanity) Act 1964, Coventry Crown Court admitted an absent eyewitness’s police statement under section 116(2)(d) of the Criminal Justice Act 2003.

The jury found by an 11-to-one majority that the appellant had done the act charged. The judge made a hospital order with a restriction order without limit of time. The appellant appealed against the finding, contending that hearsay was inadmissible in section 4A proceedings because they were not criminal proceedings.

Appeal dismissed.

1. The court held that a section 4A hearing must replicate, as closely as possible, the fact-finding process at a criminal trial. The jury decides whether the accused did the act charged, and must be satisfied to the criminal standard. It follows that the jury must be satisfied by evidence admissible at a criminal trial.

2. This conclusion followed from the purpose of section 4A of the Criminal Procedure (Insanity) Act 1964. The provision protects an unfit accused from detention where a criminal jury would not have found that person committed the act. It also protects the public where the prosecution could have proved the act to the criminal standard. Applying different evidential rules before and after a finding of unfitness, particularly where unfitness arises during a trial, would defeat that purpose.

3. The court considered that section 125(3) of the Criminal Justice Act 2003 showed that Parliament contemplated hearsay being admissible at a section 4A hearing. It was unnecessary to decide whether the hearsay provisions applied directly because such a hearing was itself within the statutory expression “criminal proceedings”, or instead applied by analogy because section 4A requires criminal evidential rules to be used. Either analysis gave the court power to admit the evidence.

4. The absent eyewitness’s statement was therefore capable of admission under section 116(2)(d) of the Criminal Justice Act 2003. Counsel accepted that, if the judge had that power, there was no separate challenge to its exercise. The alternative reliance on the Civil Evidence Act 1995 did not require consideration.

• Court of Appeal (Criminal Division): dismissed the appeal against the jury’s section 4A finding: [2007] EWCA Crim 2647.
• Coventry Crown Court: after the appellant was found unfit to stand trial, a jury found by an 11-to-one majority that he had done the act charged. The judge made a hospital order with a restriction order without limit of time.