R (A) v Harrow Crown Court  EWHC 2020 (Admin)
The court order detaining the claimant under s37/41 MHA 1983 following a finding of unfitness to plead was irregular (as ultra vires s5 CPIA 1964 as then enacted) and was quashed; however, the detention was in accordance with a procedure prescribed by law and was not arbitrary, so there was no breach of Article 5.
It had been found that A was unfit to plead but had done the act charged against him (actual bodily harm). He was subsequently sentenced to a hospital order under s37 and a restriction order under s41 Mental Health Act 1983. C sought (1) an order quashing the s37/41 order; (2) an order requiring the Crown Court to correct its records; (3) a declaration that his detention had breached Article 5.
The finding of unfitness to plead does not result in conviction or punishment: see R v H  UKHL 1. A hospital order is not an available order in such circumstances: R v Fairley  EWCA Crim 1625. Under section 5 Criminal Procedure (Insanity) Act 1964 the court did have power to make an admission order, and by schedule 1 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 this would be treated as equivalent to a hospital order and can be given with an order equivalent to a restriction order. However, the court had no power to make an order under the Mental Health Act and thus its order was irregular and was quashed.
The Court records recorded a conviction and also suggested that the crime was GBH rather than ABH; these errors were to be rectified.
Under Article 5(1), detention must be in accordance with "a procedure prescribed by law". This term refers to the substantial requirements of a fair procedure. In A's case, the evidence justified detention in hospital and the procedure was a procedure prescribed by law.
As a matter of English law, the Crown Court is a court of unlimited jurisdiction and its orders are effective in law, and must be obeyed, unless and until set aside: they cannot therefore be a nullity: R v Cain  AC 46. Concepts of voidness and voidability are irrelevant to such an order, which is either irregular or regular: Isaacs v Robertson  AC 97. The order in A's case was irregular.
Under Article 5, A's detention was lawful provided it was not arbitrary: Benham v United Kingdom (1996) 22 EHRR 293. The detention was based on a finding that A had done the act charged and needed to be detained for medical treatment, and was not arbitrary: Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198 distinguished. There was therefore no breach of Article 5.
Immediately after the handing down of the judicial review judgment, the court reconstituted itself as Harrow Crown Court with the intention of, depending on the evidence, making a lawful order under s5 CPIA 1964 or alternatively remanding A to a further hearing of the Crown Court if he is was fit to plead. (He had been treated as an informal patient by the hospital since the controversy arose.)
Other cases considered: South West Yorkshire Mental Health NHS Trust v Bradford Crown Court  EWHC 640 (Admin), R (Evans) v Brockhill Prison  UKHL 48, R (London) v Central London County Court  3 WLR 1, Re S-C (Mental Patient: Habeas Corpus)  EWCA Civ 60, Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198.
Before Stanley Burnton J
R (A) v Harrow Crown Court; Secretary of State for the Home Department and West London Mental Health NHS Trust as interested parties.
Mark Mullins (instructed by Kaim Todner) for the Claimant
Martin Chamberlain (instructed by the Treasury Solicitor) for Harrow Crown Court and the Home Secretary
West London Mental Health NHS Trust did not appear and was not represented
Since the judgment, the relevant legislation has been amended by the Domestic Violence Crime and Victims Act 2004. Now under s5 CPIA 1964 the court can indeed make hospital/restriction orders under the Mental Health Act 1983.