HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. H and Secretary of State for the Home Department
 UKHL 1
LORD BINGHAM OF CORNHILL
1. The appellant was charged upon indictment with two offences of indecent assault committed against a girl aged 14. He was himself aged 13 at the time of the alleged offences. Before his trial in the Crown Court at Bradford he was examined by psychiatrists instructed on his behalf and on behalf of the Crown, who were agreed that he was unfit to stand trial. On 15 June 2000 a jury empanelled to decide whether he was fit to stand trial found that he was under a disability and so unfit. At a further hearing on 17 November 2000 a different jury (directed by Judge Adams) found that the appellant had done the acts alleged against him in each count of the indictment. On 11 January 2001 he was absolutely discharged on both counts and his father was directed to cause him to be registered as a sex offender. The appellant appealed against the finding of the second jury, contending that the procedure followed was incompatible with article 6 of the European Convention on Human Rights ("the Convention"), but the Court of Appeal (Rose LJ, Bell and Burnton JJ) rejected that contention and dismissed the appeal:  1 WLR 824;  EWCA Crim 2024. The Court of Appeal however certified that a point of law of general public importance was involved in its decision and the House gave leave to appeal. The certified question is:
"Is the procedure defined by Section 4A of the Criminal Procedure (Insanity) Act 1964 compatible with an accused person's rights arising under Article 6(1), 6(2) and 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms? In particular:
(i) Does the procedure in so far as:
(a) it provides for an acquittal of the accused person in the circumstances defined by Section 4A(1) of the Act;
(b) it provides for a finding that the accused 'did the act' which constitutes the actus reus of the crime;
amount to the 'determination' of a criminal charge for the purposes of Article 6(1)?
(ii) Does a finding that an accused person 'did the act' which constitutes the actus reus of the crime of indecent assault, being a crime of basic intent, violate the presumption of innocence afforded by Article 6(2)?"
The legislative history
2. For over 200 years the statute law of this country has recognised and addressed, with growing sophistication and particularity, two allied but different problems. One of those problems arises where it appears that a person accused of committing a serious crime was, or may have been, in such a mental state at the time of committing it as to render him irresponsible, in the eyes of the law, for what he is said to have done. The second problem arises where it appears that a person accused of committing a serious crime, whatever his mental state at the time of committing it, is or may at the time of his trial be in such a mental state as to render him unfit to be tried. The evolving legislative response to these problems (conveniently labelled insanity and unfitness to plead) was briefly described in R v Antoine  1 AC 340 at 344-349 and 368-376, and it is unnecessary to repeat that summary. Over time, and in various statutes, certain rules came to be recognised and given effect:
(1) Those found to have been insane when committing the offence charged against them should not be convicted and punished in the same way as a sane defendant.
(2) Those found to be unfit to plead should not stand trial in the same way as a defendant who is fit to plead.
(3) Trial procedures are necessary to determine whether an accused person was insane when committing the offence charged and (as the case may be) whether he is fit to stand trial.
(4) These are issues appropriate (where the defendant is charged on indictment) to be determined by a jury, subject to the direction of a judge.
(5) Even though a person may be found not to have been responsible for his conduct because insane or (as the case may be) may be found unfit to stand trial in the ordinary way, such person may nonetheless represent a continuing threat to members of the public such that, in the interest of public safety, the detention of such person may be justified.
The challenge which underlay all the relevant legislative provisions was on the one hand to treat the accused person in a fair and humane way and on the other to protect the public against the risk of danger posed by a person who could not (because of insanity) be held fully responsible for his conduct or could not (because of unfitness to plead) be tried in the ordinary way to decide whether he was guilty or not.
Unfitness to plead: the current legislation
3. The detailed procedure governing unfitness to plead is now laid down by the Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. I shall quote the three crucial sections and then comment on each:
"4. Finding of unfitness to plead
(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.
(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.
(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.
(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by a jury and -
(a) where it falls to be determined on the arraignment of the accused and the trial proceeds, the accused shall be tried by a jury other than that which determined that question;
(b) where it falls to be determined at any later time, it shall be determined by a separate jury or by the jury by whom the accused is being tried, as the court may direct.
(6) A jury shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
4A. Finding that the accused did the act or made the omission charged against him
(1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability.
(2) The trial shall not proceed or further proceed but it shall be determined by a jury -
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
(5) A determination under subsection (2) above shall be made -
(a) where the question of disability was determined on the arraignment of the accused, by a jury other than that which determined that question; and
(b) where that question was determined at any later time, by the jury by whom the accused was being tried.
"5. Powers to deal with persons not guilty by reason of insanity or unfit to plead etc
(1) This section applies where -
(a) a special verdict is returned that the accused is not guilty by reason of insanity; or
(b) findings are recorded that the accused is under a disability and that he did the act or made the omission charged against him.
(2) Subject to subsection (3) below, the court shall either -
(a) make an order that the accused be admitted, in accordance with the provisions of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, to such hospital as may be specified by the Secretary of State; or
(b) where they have the power to do so by virtue of section 5 of that Act, make in respect of the accused such one of the following orders as they think most suitable in all the circumstances of the case, namely -
(i) a guardianship order within the meaning of the Mental Health Act 1983;
(ii) a supervision and treatment order within the meaning of Schedule 2 to the said Act of 1991; and
(iii) an order for his absolute discharge.
(3) Paragraph (b) of subsection (2) above shall not apply where the offence to which the special verdict or findings relate is an offence the sentence for which is fixed by law."
4. From section 4 it is clear that the issue of a defendant's fitness to plead may be raised by the defence, or the prosecution, or even the court itself. The issue when raised will be tried by a jury, acting on the evidence of two or more medical practitioners of whom at least one must be approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder. Even if the issue of unfitness is raised at the outset of the trial, the determination of it may be deferred until the opening of the defence case: thus it is open to the defendant's legal representatives to attack the prosecution case and seek its dismissal on the merits, leading to a conclusive verdict of acquittal and so obviating the need for the issue of unfitness to be determined at all. If the issue is determined when the defendant is arraigned and the jury find that the defendant is fit, the trial will proceed but with a fresh jury. If the issue is determined at a later stage of the trial, such determination may be made by the trial jury or a fresh jury as the court may direct. Members of the jury empanelled to try the issue of fitness will take an oath and will be charged in terms directed to that issue and not in the terms used in criminal trials: Archbold, Criminal Pleading, Evidence and Practice, 2003, p 391 para 4-171. If found fit, and thereafter convicted, the defendant may challenge the finding of fitness on appeal and seek a finding that he was unfit: Criminal Appeal Act 1968, as amended, section 6(1)(b). If found unfit, the defendant may challenge that finding on appeal also: 1968 Act, as amended, section 15(1).
5. Section 4A comes into operation only when the defendant is found to be unfit. On the making of that finding the trial, whatever stage it has reached, comes to an end: it "shall not proceed or further proceed." Since it is inherent in a finding of unfitness that the defendant lacks the understanding necessary to instruct counsel and participate in the conduct of his defence, it is the practice for the court to appoint counsel (usually counsel already instructed) to represent the interests of the defendant as best he can, as recognised in section 4A(2)(b). On such evidence as may be available the jury must decide whether they are satisfied, as respects each of the counts on which the defendant is indicted, whether "he did the act or made the omission charged against him as the offence." There appears to be no prescribed form of oath for this jury, but under the practice followed at the Central Criminal Court (and perhaps elsewhere) the jurors swear or affirm that they "will faithfully try whether the defendant did the act charged against him and
will give a true verdict according to the evidence". The jury may, in relation to any count of the indictment, be satisfied that he did, and they will then so find. If the jury are not so satisfied, in relation to any count, they will return a conclusive verdict of acquittal on that count. If the unfitness issue was raised and determined at the outset, a fresh jury (not the jury which decided the disability issue) decides whether he did the act or made the omission charged. If the unfitness issue was determined after the criminal trial had begun, the trial jury (which will have heard some at least of the prosecution evidence) will decide the act or omission question.
6. Section 4A was added to the 1964 Act by the 1991 Act in response to a problem to which the Court of Appeal refer in paragraph 34 of their judgment under appeal:  1 WLR 824 at 841. A defendant, charged with a murder to which she had confessed, had been found unfit to plead and had been detained for some time before it was found that she had not committed the act of murder. So, to obviate the injustice of detaining a person as potentially dangerous when the inference of risk is drawn from the commission of an act which investigation might show that the person had not committed, this procedure was introduced to enable such forensic investigation to be conducted (before a jury) as the unfitness of the person would make possible. For this purpose Parliament adopted the language first used in relation to the insane in the Trial of Lunatics Act 1883: see R v Antoine  1 AC 340 at 345, 370.
7. It was settled in R v Antoine that the jury is not required, when deciding the act or omission question under section 4A, to resolve questions relating to the criminal intention of the accused, an obviously inappropriate exercise in the case of one under mental disability and almost certainly unable to testify, as it would be in the case of one found to have been insane. But if it is found that the person had done the act or made the omission charged against him as the offence, that finding also is subject to appeal under section 15(1) of the Criminal Appeal Act 1968, as amended.
8. By section 5 of the 1964 Act as originally enacted, a finding of disability against a defendant left the trial court with no choice but to order that he be admitted to such hospital as might be specified by the Secretary of State. But however appropriate such a disposal might be in the case of a person charged with a serious offence of a violent or sexual nature, if the person was shown to have done the act or made the omission charged against him, it could be inappropriate in the case of a person charged with a less serious offence, and not only in cases where (because of the absence of forensic investigation) the person was not shown to have done the act or made the omission charged. Unless the offence charged was one likely to lead, on conviction, to a substantial term of imprisonment, there was an obvious incentive for a defendant, even one who would (if the issue were raised) be found unfit, to forgo the right to raise that issue and to take his chance at the trial, rather than raise the issue and be sent to a mental hospital for an indefinite period. Section 5, as amended in 1991, sought to remedy this potential source of injustice by giving the court power (save in the case of murder, for which the sentence is fixed by law) to make any one of several possible orders, none of them punitive. It is because none of these orders is "made by a court when dealing with an offender" "in relation to an offence", and because the orders are not made following conviction, that the orders which the court may make are not "sentences" within the meaning of section 50 of the Criminal Appeal Act 1968, as amended, and so are not susceptible to appeal under sections 9-11 of the 1968 Act as amended.
9. In the present case, as already noted, the appellant was ordered to be absolutely discharged. Such an order may normally be made only where a person is convicted and the court is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment: section 1A(1)(a) of the Powers of Criminal Courts Act 1973, as inserted by section 8(3)(a) of and Part I of Schedule 1 to the Criminal Justice Act 1991, now section 12(1) of the Powers of Criminal Courts (Sentencing) Act 2000. It is, however, provided that, in the case of a person found to be unfit to plead and to have done the act or made the omission charged against him, the reference to conviction shall include a reference to those findings, and the reference to the court's opinion as to the inexpediency of punishment shall include a reference to its thinking that an order for absolute discharge would be most suitable in all the circumstances of the case. That is the effect of section 5(2)(a) and (4) of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, as amended by section 165(1) of and paragraph 133 of Schedule 9 to the Powers of Criminal Courts (Sentencing) Act 2000.
10. If a person is found to be unfit to plead and to have done the act or made the omission charged against him and is ordered to be admitted to hospital under section 5 of the 1964 Act, as amended, the Secretary of State may, if such person recovers to the point where the Secretary of State is satisfied, after consultation with the responsible medical officer, that he can properly be tried, remit him either to the court of trial or to prison awaiting trial. That is the effect of paragraph 4 of Schedule 1 to the 1991 Act. Thus, whereas an acquittal discharges the accused of all criminal liability and precludes a full trial, a finding of unfitness followed by a finding that the accused did the act or made the omission charged is not conclusive and does not preclude a full trial of the accused if he becomes fit to be tried.
11. Counsel for the appellant accepted that the procedure followed to determine whether the appellant was fit to plead was wholly compatible with the Convention. He accepted that the determination of that issue, although taking place as a result of the criminal charge against the appellant and in the context of a criminal trial, did not itself involve the determination of a criminal charge against him. It involved a medical enquiry into his then current mental state, involving at most a determination of the appellant's civil rights and obligations and not attracting the Convention safeguards specific to the determination of criminal charges which are expressed in article 6(2) and (3) of the Convention.
12. The issue on which the parties locked horns was the categorisation of the procedure provided under section 4A, following a finding of unfitness, namely the procedure followed to enable the jury to decide whether the accused had done the act or made the omission charged against him as the offence. In an able argument for the appellant, Mr Robert Smith QC contended that, viewed as a matter of substance, this was to all intents and purposes a procedure to determine a criminal charge against the appellant. It therefore attracted the guarantees provided in article 6 of the Convention. But these guarantees were not met since the appellant, being ex hypothesi unfit to plead, could not give instructions and participate fully in his own defence. Therefore he should not be tried at all, but should (if appropriate) be detained, in the same way as a person not accused of a criminal offence, under the Mental Health Act 1983. In contending that the procedure involved, in substance, the determination of a criminal charge, Mr Smith relied in particular on the nature of the crimes of indecent assault charged against the appellant, which were crimes of basic intent, requiring proof of no more than non-accidental touching of the victim in circumstances of indecency. The procedure could lead to an acquittal. The finding that the appellant had done the acts charged against him amounted in substance to conviction of the offences. In the eyes of the public the findings carried the stigma which attaches to the commission of such offences. The Rehabilitation of Offenders Act 1974 and the Sex Offenders Act 1997 applied to findings adverse to the accused as they applied to convictions.
13. Mr Paul Worsley QC for the prosecution and Mr David Perry for the Secretary of State made common cause. They did not contend that the section 4A procedure met the requirements of article 6(2) and (3) if those provisions were applicable to it. But they strongly argued that this procedure did not involve the determination of a criminal charge and that the article 6 guarantees did not apply. To the extent that the appellant was deprived of his liberty, this was justified under article 5(1)(e) of the Convention. If the procedure involved determination of the appellant's civil rights and obligations, it satisfied article 6(1) of the Convention and provided every reasonable safeguard of his rights.
14. It was not suggested by the appellant that the section 4A procedure was incompatible with the Convention even if it did not involve the determination of a criminal charge. His argument depended on making good his premise that the procedure did involve the determination of a criminal charge. Thus the crucial issue dividing the parties was whether the procedure did or did not involve the determination of a criminal charge.
The determination of a criminal charge
15. In a passage cited and applied on very many occasions, the European Court of Human Rights in paragraph 82 of its judgment in Engel v The Netherlands (No. 1) (1976) 1 EHRR 647 at 678-679 gave authoritative guidance on the tests to be applied in deciding whether an issue is to be regarded as criminal on the one hand or disciplinary or civil on the other. The parties were rightly agreed that these tests fell to be applied in the present case.
16. It is first necessary to know how the issue is classified in domestic law. This test is far from decisive and rightly so, since the Convention seeks the achievement of broadly equivalent standards among the member states of the Council of Europe and such aim would be defeated if domestic rules were determinative. But this is the starting point, and it is clear that the domestic law of England and Wales does not treat the section 4A procedure as involving the determination of a criminal charge. When a finding of unfitness is made it is provided that the trial (meaning the criminal trial) "shall not proceed or further proceed". Section 4A(2) is expressed in terms which make clear that the task of the jury is not that carried out by a jury in a criminal trial: for reasons already given, the jury have power to acquit but they have none to convict. The jury take an oath different from that in a criminal trial. There can be no verdict of guilty. There can be no punishment. In a case such as the present, as the legislation has been amended to make clear, an order of absolute discharge may be made in the absence of any conviction and without consideration of the expediency of punishment. It is true that by virtue of section 1(4)(b) of the Rehabilitation of Offenders Act 1974 references in that Act to a conviction are expressed to include reference to a finding that a person has done the act or made the omission charged, but this was an Act designed to promote the rehabilitation of offenders by enabling them to live down past convictions and the obvious purpose of this provision was to give persons subject to adverse findings under section 4A the benefit of that protection. It is also true that a person found to have done the act or made the omission charged is subject, by virtue of section 1(1)(b) of the Sex Offenders Act 1997, to the notification requirements of that Act. But I regard it as clear, as a matter of domestic law, that this provision is designed to protect the public and not to punish the subject of the order. The non-punitive nature of the order was recognised by the Commission in Ibbotson v United Kingdom (1998) 27 EHRR CD 332. The registration order is analogous to a sex offender order or an anti-social behaviour order such as were considered in B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340 and R (McCann) v Crown Court at Manchester  3 WLR 1313 respectively. Mr Smith came very close to accepting that, in domestic law, the section 4A procedure was not criminal.
17. The second Engel test, and that on which the appellant's argument depended, directed attention to the very nature of the offence. The points, briefly mentioned above, concerning the nature of an offence of basic intent such as indecent assault, the similarity between an adverse finding under section 4A and a verdict of guilty by a trial jury and the stigma attaching to an adverse finding under section 4A were relied on as showing that the appellant was in substance being tried by the jury for offences of indecent assault.
18. It would be highly anomalous if section 4A, introduced by amendment for the protection of those unable through mental unfitness to defend themselves at trial, were itself to be held incompatible with the Convention. It is very much in the interest of such persons that the basic facts relied on against them (shorn of issues concerning intent) should be formally and publicly investigated in open court with counsel appointed to represent the interests of the person accused so far as possible in the circumstances. The position of accused persons would certainly not be improved if section 4A were abrogated. In my opinion, however, the argument is plainly bad in law. Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the section 4A procedure is not to decide whether the accused person has committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment. Even an adverse finding may lead, as here, to an absolute discharge. But if an adverse finding leads to the making of a hospital order, there is no bar to a full criminal trial if the accused person recovers, an obviously objectionable outcome if the person has already been convicted. The section 4A procedure lacks the essential features of criminal process as identified in Customs and Excise Commissioners v City of London Magistrates' Court  1 WLR 2020 at 2025.
19. The third Engel test was expressed by the European Court in this way ((1976) 1 EHRR 647 at 678-679, paragraph 82):
"However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so."
Mr Smith for the appellant accepted that he could not rely on this test, because he accepted that the orders which the court could make on a finding by the jury adverse to the accused under section 4A were none of them punitive. But the fact that the procedure cannot culminate in any penalty is not neutral. The House was referred to no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. It is, indeed, difficult if not impossible to conceive of a criminal proceeding which cannot in any circumstances culminate in the imposition of any penalty, since it is the purpose of the criminal law to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society to merit the imposition of penal sanctions.
20. The argument in this appeal covered much of the ground traversed by the Court of Session in S v Miller 2001 SC 977, and I respectfully agree with what was said by the Lord President (Rodger) in paragraphs 10-24 of his judgment, at pages 984-990. I would also endorse the observation of my noble and learned friend Lord Hutton in R v Antoine  1 AC 340 at 375-376 where, recognising the search for balance which is inherent in the Convention, he said:
"The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea."
I am in complete agreement with the reasons given by the Court of Appeal for dismissing the appellant's appeal, and I would dismiss it for those reasons as well as those I have given. The procedure under section 4A must always, of course, be conducted with scrupulous regard for the interests of the accused person, but the procedure if properly conducted is fair and it was not suggested that the procedure was not properly conducted in this case.
21. I would answer the general opening question posed by the Court of Appeal by ruling that the section 4A procedure laid down by the 1964 Act as amended is compatible with the rights of an accused person under article 6(1), (2) and (3) of the Convention. I would answer each of the particular questions (i) and (ii) in the negative.
LORD NICHOLLS OF BIRKENHEAD
22. I agree that, for the reasons given by my noble and learned friend Lord Bingham of Cornhill, this appeal should be dismissed and the question certified by the Court of Appeal answered in the terms proposed by him.
23. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it and for the reasons which he gives I too would dismiss this appeal.
LORD HOBHOUSE OF WOODBOROUGH
24. For the reasons given by my noble and learned friend Lord Bingham of Cornhill, with whose opinion I agree, I too would dismiss this appeal and answer the certified questions as set out in his paragraph 21.
LORD WALKER OF GESTINGTHORPE
25. I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Bingham of Cornhill. I agree that this appeal should be dismissed for the reasons which he gives.