R (M) v Kingston Crown Court  EWHC 2702 (Admin),  MHLO 50
M had admitted to GBH but the Crown wanted to pursue GBH with intent, and the judge made an order under s35 (remand for report) to gather evidence about intent. (1) The purpose of an order under s35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. (2) The judge’s misinterpretation of s35 was a jurisdictional error so the High Court was entitled (despite the limitation in s29(3) Senior Courts Act 1981) to quash the order made under it.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
JUDICIAL REVIEW — Crown Court — Jurisdiction — Judge remanding accused in hospital for report on mental condition — Whether power to remand in hospital to obtain evidence about accused’s intention to commit offence — Whether High Court having jurisdiction to quash order — Offences Against the Person Act 1861, s 18 — Senior Courts Act 1981, s 29(3) — Mental Health Act 1983, s 35
Regina (M) v Crown Court at Kingston upon Thames
 WLR (D) 328
DC: Ouseley, Griffith Williams JJ: 17 July 2014
The power under section 35 of the Mental Health Act 1983, to remand to hospital for a report on an accused’s mental condition, could not be used in order to obtain evidence about whether the accused had the intention or the capacity to form the intention to commit an offence under section 18 of the Offences Against the Person Act 1861.
The High Court could quash an order under section 35 of the Mental Health Act 1983, although it was precluded from quashing an order in a matter concerning a trial on indictment under section 29(3) of the Senior Courts Act 1981, if there was a defect so severe, such as a misinterpretation of section 35, that it deprived the Crown Court of jurisdiction to make the order.
The Divisional Court of the Queen’s Bench Division so held in allowing a claim for judicial review by the claimant, M (the accused in criminal proceedings), against the order made by Judge Hopmeier, sitting in the Crown Court at Kingson upon Thames on 25 June 2014, remanding the claimant in hospital for the preparation of a report regarding his mental condition. On 26 June 2014, Carr J suspended the judge’s order pending the outcome of the judicial review proceedings. The application for permission to proceed with the claim was listed with the claim to follow, if granted. The Crown Prosecution Service was served as an interested party.
The claimant committed a serious assault and pleaded guilty to an offence under section 20 of the Offences Against the Person Act 1861. The Crown also sought to prosecute the claimant under section 18 of the 1861 Act. An issue arose as to whether the claimant had the requisite intent and the capability to form it so as to satisfy the prosecution’s case under section 18. The Crown applied for an order under section 35 of the Mental Health Act 1983, following conclusions by medical experts that the claimant was suffering from a psychotic illness characterised by delusions about the victim and command hallucinations and a recommendation by the Crown’s expert that there be a comprehensive inpatient assessment.
The Senior Courts Act 1981 provides, by section 29(3): “In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court.”
OUSELEY J, allowing the claim, said that it was abundantly clear that the purpose of the Crown’s case under section 18 of the 1861 Act was to push the Crown’s position regarding his intent and capability of forming intent. The purpose of an order under section 35 was to inform the court of a defendant’s fitness to plead and his diagnosis, not to advance one party’s claim. In so far as evidence emerged from an in-patient assessment which affected the psychiatrist’s view about an issue in the proceedings, or if something was said in detention during the assessment that the Crown sought to use, its admissibility would be subject to the requirements of section 78 of the Police and Criminal Evidence Act 1984. However, the fact that safeguards existed did not mean that section 35 could be used to obtain evidence. To obtain evidence in such a way meant that if the person detained chose not to answer questions he would be at risk of prolonged detention, or being subjected to adverse inferences. Further, it was unlikely that that would be compliant with article 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The question whether the court was precluded from making an order under section 29(3) of the Senior Courts Act 1981 was a live issue. An order under section 35 of the 1983 Act that related to fitness to plead, as in the instant case, was a matter relating to a trial on indictment. It was established law that an order made regarding a trial on indictment could be quashed where the defect was so severe that it deprived the court of jurisdiction to make it: (R v Maidstone Crown Court, Ex p Harrow London Borough Council  QB 719Not on Bailii! and R (Kenneally) v Crown Court at SnaresbrookB. A misinterpretation of section 35 fell within that severity category. On the facts, the judge’s misinterpretation of section 35 was a jurisdictional error and the High Court was entitled to quash the order made under it.
GRIFFITH WILLIAMS J agreed.
Appearances: Orlando Pownall QC (instructed by Burton Copeland) for the claimant; Scott Brady (instructed by Crown Prosecution Service) for the Crown Prosecution Service, as interested party; the defendant did not appear and was not represented;
Reported by: Ms Avneet K Baryan, Barrister.
© 2013. The Incorporated Council of Law Reporting for England and Wales.
Ex tempore judgment