M, R (on the application of) v Kingston Crown Court

A remand to hospital under section 35 of the Mental Health Act 1983 must serve the statutory purpose of obtaining a report on the accused’s present mental condition, particularly in relation to fitness to plead or disposal. It cannot be ordered to obtain evidence for use on a disputed issue at the criminal trial, including the accused’s capacity to form intent at the time of the alleged offence. The existence of safeguards concerning evidence obtained during detention does not enlarge the statutory power. A serious misinterpretation of section 35 may constitute a jurisdictional error sufficiently grave to permit judicial review despite section 29(3) of the Senior Courts Act 1981.

The claimant, aged 17, faced trial on a charge under section 18 of the Offences Against the Person Act 1861. The Crown sought an inpatient assessment after differing psychiatric reports had been prepared. Kingston Crown Court made an order under section 35 of the Mental Health Act 1983, ostensibly for a report on the claimant’s mental condition.

The Administrative Court heard a rolled-up judicial review application challenging that order. The central issue was whether section 35 authorised compulsory detention principally to obtain evidence relevant to the disputed issue of the claimant’s capacity to form intent at the time of the alleged offence.

1. The application succeeded. The order made by HHJ Hopmeier under section 35 of the Mental Health Act 1983 was quashed.
2. Section 35 permits remand to hospital for a report on the accused’s mental condition. Its proper purposes include informing the court about fitness to plead and disposal. The statutory reference to the accused’s condition in the present tense is significant. The provision does not authorise detention to investigate mental condition at the time of an alleged past offence for the purpose of obtaining evidence on an issue at trial.
3. The purpose of the proposed assessment was to clarify the diagnosis so that evidence could be given on the claimant’s capability of forming the intent required for the section 18 charge. That was a purpose beyond the power conferred by section 35. The fact that evidence emerging during an assessment might be controlled by section 78 of the Police and Criminal Evidence Act 1984 did not make the detention lawful.
4. The existence of several psychiatric reports did not itself prevent a lawful section 35 order. However, the judge was required carefully to analyse whether anything useful could be obtained, having regard to the accused’s ability under section 35(8) to obtain an independent report and seek termination of the remand. Section 35 is intended to inform the court, not to advance one party’s case.
5. The court expressed serious doubt that detention for the prohibited purpose, or evidence obtained through it, would comply with Articles 5 and 6 of the European Convention on Human Rights. The public interest in obtaining a correct diagnosis was circumscribed by the statutory scheme and did not justify the order.
6. Although section 29(3) of the Senior Courts Act 1981 may preclude judicial review of matters relating to a trial on indictment, the prohibition does not apply where the defect is a jurisdictional error of sufficient gravity. The misinterpretation of section 35 was such an error. The court also observed that habeas corpus would have been available if the claimant had been detained.

An order for costs was made in the claimant’s favour, with an interim payment to be assessed after a schedule of costs had been provided.

The judgment describes a judicial review challenge to an order made by HHJ Hopmeier QC at Kingston Crown Court on 25 June 2014. The Administrative Court quashed that order.