Chinegwundoh v R

A finding, following unfitness to plead, that an accused did the acts charged is neither a conviction nor an acquittal. It cannot found a restraining order under provisions of the Protection from Harassment Act 1997 that apply respectively on conviction or acquittal. A supervision order under the Criminal Procedure (Insanity) Act 1964 must comply with Part 1 of Schedule 1A. Medical treatment may be imposed as a requirement, but it cannot replace supervision by the appropriate local-authority social services. Under section 16B of the Criminal Appeal Act, an appellate court may quash a defective order and substitute a lawful order which the lower court could have made and which is no more onerous.

The applicant was found unfit to plead at the Crown Court at Snaresbrook. Following a hearing under the Criminal Procedure (Insanity) Act 1964, the jury found that he had done the acts charged: using a false instrument and fraud in connection with attempts to obtain possession of, and sell, a property.

The trial judge made a two-year supervision order and a restraining order. The applicant renewed an application for leave to appeal against the finding that he had done the acts charged. Although the court refused leave on his numerous grounds, it granted leave to consider two irregularities in the consequential orders. The issues were whether the supervision order had the form required by statute and whether a finding that the accused did the acts charged permitted a restraining order.

1. The appeal was allowed in part. The court refused the renewed application for leave to challenge the finding that the applicant had done the acts charged. It granted leave on the technical issues concerning the consequential orders and allowed the appeal to that extent.

2. The purported supervision order was unlawful in form. Section 5 and Part 1 of Schedule 1A to the Criminal Procedure (Insanity) Act 1964 require supervision by the relevant local-authority social services, through a social worker or other specified supervising officer. Non-residential medical treatment may be required, but attendance at hospital under a doctor’s supervision cannot itself constitute the statutory supervision order. The court quashed the original order and, exercising its power under section 16B of the Criminal Appeal Act, substituted a two-year order providing for social-work supervision and treatment at the South London and Maudsley NHS Foundation Trust.

3. The restraining order was also unlawful. A finding that an unfit accused did the acts charged does not amount to a criminal conviction because it does not require proof of the requisite mental element. It therefore cannot engage section 5 of the Protection from Harassment Act 1997. Nor is such a finding an acquittal for section 5A. R v (ARJ) [2013] EWCA Crim 591 concerned the distinct special verdict of not guilty by reason of insanity. The statutory power to remit an accused for trial after a finding that he did the acts, and the express provision for not-guilty verdicts on counts not proved, confirmed that the positive finding was not an acquittal. The restraining order was accordingly quashed.

4. The court observed that any perceived gap in protective powers for persons under a disability was a matter for Parliament. It directed that appointed counsel’s costs be covered under the applicable regulations.

• Court of Appeal (Criminal Division) In [2015] EWCA Crim 109, the court refused leave to appeal against the finding that the applicant had done the acts charged, but allowed the appeal in part against the consequential orders.
• Crown Court at Snaresbrook The applicant was found unfit to plead under the Criminal Procedure (Insanity) Act 1964. A jury found that he had done the acts charged, after which the judge imposed a supervision order and a restraining order.