Creed, R. v

A jury determining under section 4A of the Criminal Procedure (Insanity) Act 1964 must decide the alleged act on admissible evidence. The bad-character regime in the Criminal Justice Act 2003 therefore applies to that fact-finding process, even though a section 4A hearing is not, in the strict sense, a criminal trial capable of conviction or punishment.

An unfit accused's inability to give instructions does not itself require exclusion of prior convictions. The statutory fairness discretion remains available. Earlier burglary convictions may remain relevant to propensity despite an asserted later deterioration in the accused's mental state.

The appellant was charged with burglary. A judge at Southwark Crown Court determined that he was unfit to be tried under the Criminal Procedure (Insanity) Act 1964. A jury then determined under section 4A that he had committed the act charged.

The Recorder admitted evidence of four earlier burglary convictions under section 101(1)(d) of the Criminal Justice Act 2003. The appellant was subsequently made subject to a hospital order under section 37 of the Mental Health Act 1983.

In a renewed application for permission to appeal, the appellant contended principally that the statutory bad-character provisions did not apply to a section 4A hearing. He also challenged the fairness and relevance of the convictions and submitted that the prosecution case was weak.

1. Permission to appeal was refused. The proposed grounds had no real prospect of success.

2. A section 4A hearing does not determine criminal guilt and cannot lead to conviction or punishment. That follows from R v H [2003] UKHL 1. It did not, however, mean that the jury could determine the alleged act by evidence which would be inadmissible at a criminal trial.

3. The court followed Chal [2007] EWCA Crim. 2647. The identical definitions of criminal proceedings and defendant in the bad-character and hearsay chapters of Part 11 of the Criminal Justice Act 2003 left no basis to distinguish the two regimes. Whether the Act applied directly or by adoption of the same evidential rules, Parliament intended a section 4A jury to decide the alleged act through the ordinary admissibility rules. The bad-character provisions therefore governed the application.

4. The appellant's inability, by reason of unfitness, to instruct his representatives about earlier convictions did not create a separate inequality-of-arms objection. That disadvantage was inherent in the statutory procedure. Where bad character is sought under section 101(1)(d) or (g), section 101(3) permits exclusion on grounds of fairness and can address any particular prejudice.

5. The earlier burglary convictions remained relevant to propensity. A later deterioration in mental state did not prevent the convictions from being of the same category or description, or otherwise relevant to a propensity to burgle. Nor was this a weak prosecution case improperly bolstered by bad character: the CCTV and DNA evidence provided a strong evidential case.

• Court of Appeal (Criminal Division): The renewed application for permission to appeal was refused in [2011] EWCA Crim 144.

• Southwark Crown Court: The judge found the appellant unfit to be tried. The section 4A jury found that he had done the act charged after the Recorder admitted previous burglary convictions; a hospital order was later made.