AS TO THE ADMISSIBILITY OF
Application no. 62960/00
by Pierre Harrison ANTOINE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 13 May 2003 as a Chamber composed of
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mrs E. Palm,
Mrs V. Strážnická,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 27 September 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Pierre Harrison Antoine, is a United Kingdom national, born in 1979 and detained in Bexley Hospital. He is represented before the Court by Kaim Todner Solicitors, lawyers practising in the United Kingdom.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, then aged 16 years, was arrested on 3 December 1995, together with another youth D. aged 17 years in connection with the murder of Michael Earridge, aged 15. The applicant was interviewed in police custody over a period of three days. He admitted being present on the premises where the killing had taken place but denied having taken an active part. He said that he left the room on two occasions and when he returned the second time, he saw D. stabbing Michael Earridge. D. was charged with murder on 4 December 1995, the applicant on 5 December 1995.
The prosecution case was that the two had acted in furtherance of a joint enterprise and that the murder had been committed as an act of sacrifice to the devil. It was alleged that D. had plunged a knife into Michael Earridge’s chest in the presence of the applicant after the applicant had prevented the victim from leaving and had struck him. The applicant and D. were committed for trial to Inner London Crown Court on an indictment charging them with murder and, in the alternative, manslaughter. His co-accused, D., entered a guilty plea to manslaughter by reason of diminished responsibility. After consideration of medical reports, the plea was accepted by the Crown and D. was sentenced to committal to hospital under a hospital order subject to a restriction order without limit of time under sections 37 and 41 of the Mental Health Act 1983.
The applicant appeared before the Crown Court on 13 March 1997. The evidence of three psychiatrists who had examined the applicant was that he was suffering from paranoid schizophrenia. Counsel acting on the applicant’s behalf submitted that the applicant was unfit to plead or to stand trial by reason of his mental disability.
On 18 March 1997, evidence was heard before the jury from three psychiatrists (two for the defence and one for the prosecution). The trial judge, with the support of both counsel for the prosecution and for the defence, directed the jury to find that the applicant was unfit to plead or stand trial. This finding was in accordance with the R v. Pritchard case ( 7 C & P 303), on the basis that the applicant was unable to instruct his legal representatives to plead to the indictment, to challenge jurors, to understand the evidence or to give evidence in his own defence. Following this finding, and in accordance with section 4A of the Criminal Procedure (Insanity) Act 1964 (the “1964 Act”), a second jury was empanelled in order to determine whether the applicant ‘did the act or made the omission charged against him’ (a “section 4A hearing”).
On 19 March 1997, counsel for the applicant submitted that the applicant should be entitled to raise the issue of diminished responsibility during the section 4A hearing. The judge made two rulings: firstly, that in order to prove that the applicant had committed the act, the prosecution must prove both the actus reus and the mens rea and, secondly, that diminished responsibility could not be raised in a section 4A hearing.
On 2 June 1997, the jury heard evidence concerning the events surrounding the killing, including the applicant’s interviews. The case followed the adversarial procedure of a criminal trial, with evidence being called by each side and subjected to cross-examination, closing speeches and a summing up to the jury. At the conclusion of the evidence, the second jury were satisfied that the applicant had committed the necessary act, and the judge thereupon made an order under the provisions of section 5 of the 1964 Act that the applicant be committed to hospital without limit of time.
On 19 April 1999, the applicant was granted leave to appeal. On 29 April 1999, the Court of Appeal dismissed the appeal but certified that the case raised a point of law of general public importance, namely, whether it was open to a person found unfit to plead, and who was subject to a trial of the facts on a charge of murder under section 4A, to raise the defence of diminished responsibility. The House of Lords granted leave to appeal on 26 July 1999.
On 30 March 2000 the House of Lords ruled that the prosecution only had to prove the actus reus and not the mens rea in a section 4A hearing. The only time when mens rea might become relevant would be where there is “objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the act unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence”. Their Lordships also ruled that the statutory defence of diminished responsibility could not be raised in a section 4A hearing. This decision was taken principally because of the effect of the wording of section 2 of the Homicide Act 1957, which established this statutory defence as being available only as an alternative to a liability for murder. Once unfitness to plead has been determined, the trial cannot proceed, the defendant can no longer be ‘liable to be convicted of murder’, and that defence is no longer available.
Lord Hutton, in giving the leading judgment, commented:
“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 has made an omission) which would constitute a crime if done (or made) with the requisite mens rea.”
The criminal proceedings are currently stayed against the applicant indefinitely, and the Crown Prosecution Service has indicated in this case an intention to revive the proceedings if, at any time in the future, the applicant should recover.
B. Relevant domestic law and practice
1. Finding of unfitness to plead
A jury cannot make a determination that a defendant is unfit to be tried “except on the written or oral evidence of two or more registered medical practitioners” (section 4(6) of the Criminal Procedure (Insanity) Act 1964). The test for the jury is whether the defendant is able to plead to the indictment, whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he might wish to object, and to understand the details of the evidence (R. v. Pritchard  7 C. & P. 303).
2. Section 4A of the Criminal Procedure (Insanity) Act 1964 (the “1964 Act”)
On a finding of unfitness to plead “the trial shall not proceed” (section 4A(2)), and a further jury must be empanelled to determine “whether they are satisfied, as respects the count or each of the counts on which the accused was to be tried, that he did the act or made the omission charged against him as the offence” (section 4A(2)). If they are so satisfied, then “they shall make a finding that the accused did the act or made the omission charged against him” (section 4A(3)). If they 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” (section 4A(4)).
The burden of proof is on the prosecution and, in order to prove that the defendant was guilty of doing the act charged, the prosecution must prove their case beyond reasonable doubt. A finding under this procedure is not a finding of guilt (R. v. Southwark Crown Court ex parte Koncar  1 Cr.App.R. 321, DC).
Under section 5, if the accused is found unfit to plead and the jury determines that he did the act or made the omission charged, then the court may make one of the following orders:
(a) an admission order to such hospital as the Secretary of State specifies;
(b) a guardianship order under the Mental Health Act 1983;
(c) a supervision and treatment order; or
(d) an order for the accused’s absolute discharge.
Where however the offence to which the finding relates is murder, then the court must make an admission order together with an order restricting his discharge without limitation of time. If the jury are not satisfied that the accused did the act or made the omission charged they must return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion (section 4A(4)).
If, while a person is detained under an admission order, the Secretary of State is satisfied that he can be properly tried, he may remit the person for trial (Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, paragraph 4(1)).
Following the decision in the applicant’s case and the entry into force of the Human Rights Act 1998, the Court of Appeal gave leave to appeal to the House of Lords in the case of R. v. H. and the Secretary of the Home Department, certifying as a point of law of general public importance the question whether the section 4A procedure was compatible with an accused’s rights under Article 6 §§ 1, 2 and 3(d) of the Convention.
In the House of Lords judgment of 30 January 2003, Lord Bingham endorsed the views expressed in the applicant’s case by Lord Hutton (see above) and referring to the Engel v. the Netherlands case (judgment of 8 June 1976, Series A no. 22) in considering whether the section 4A procedure fell within the scope of Article 6 of the Convention, held, inter alia:
“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 it clear that the task of the jury is not that carried out by a jury in a criminal trial: ... the jury have the 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. the United Kingdom (1998) 27 EHRR CD 332. The registration order is analogous to a sex offender order or an anti-social behaviour order ...
17. The second Engel test, and that on which the appellant’s argument depended, directed attention to the very nature of the offence. ...
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 consent) should be formally and public 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 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. ...
19. ... [As regarded the third Engel test] 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.”
3. Homicide Act 1957
Section 2 provides for a defence of diminished responsibility to a charge of murder:
“(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind ... as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. ...
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.”
The applicant complains under Article 6 §§ 1 and 3(d) of the Convention that he was unable to participate effectively in the section 4A hearing or to confront the witnesses against him. Alternatively, he has not been given a trial within a reasonable time, as the criminal charges against him have still not been determined.
The applicant also complains under Article 3 of the Convention of living under the threat of a further prosecution and the difficulties this poses to his rehabilitation as he cannot co-operate with those responsible for his care for fear that anything that he says about the events may be used in evidence against him. He claims that his ongoing hospital detention under these conditions amounts to a denial of his right to liberty and security of person under Article 5 and also infringes Article 6 § 2 of the Convention.
1. THE PROCEEDINGS IN THE CROWN COURT
The applicant complains under Article 6 §§ 1 and 3(d) that due to his mental state he was unable effectively to participate or confront witnesses against him in the Crown Court proceedings which involved the determination of a criminal charge or, alternatively, that the criminal charge is still outstanding and there has been unreasonable delay in determining it.
Article 6 §§ 1 and 3(d) provide as relevant:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights: ...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
A. The parties’ submissions
1. The Government
The Government submitted that Article 6 does not apply to the proceedings under sections 4 and 4A of the 1964 Act. Once the jury had found the applicant unfit to plead, he was no longer in jeopardy of a criminal conviction and was no longer facing any criminal charge. From that moment Article 6 ceased to apply in his case. They referred to the wording of the 1964 which provides that the trial “shall not proceed” and to the fact that the applicant was no longer at risk of incurring any penalty. They considered that the proceedings concerned his lawful detention as a person of unsound mind and included all the necessary guarantees, being conducted before a court consisting of a judge and jury, with legal representation and evidence being heard orally and tested under cross-examination and with the burden of proof resting on the prosecution.
As regarded the effect of the finding under the section 4A procedure, the Government submitted that if the Secretary of State was satisfied the person was fit to stand trial the previous finding that he had done the act or made the omission charged became irrelevant and did not constitute admissible evidence. The trial would take place in the ordinary way and the accused would have the full benefit of Article 6 guarantees, including the presumption of innocence.
Assuming that Article 6 § 1 did apply, the Government nonetheless submitted that the procedure complied with the requirements of Article 6 §§ 1 and 3(d), having regard to the nature of the safeguards provided, the nature of the accused’s disability and the limited scope of the proceedings. The applicant was present at the hearing, represented and there was no legal impediment to prevent him from giving evidence. The procedure under section 4A in their view properly reflected the balance which had to be struck between the need to protect the community and the need to ensure that those under a mental disability were fairly and properly dealt with.
2. The applicant
The applicant argued that the proceedings against him involved the determination of a criminal charge so as to render applicable the provisions of Article 6. They were brought on an indictment for murder in adversarial criminal proceedings which could have resulted in his acquittal and discharge if the jury had not been satisfied that the applicant was party to the killing. The prosecution bore the burden of proof to the criminal standard and the procedure was in all respects the same as that for a full criminal trial, with the factual investigation governed by the normal rules of criminal evidence. Since that investigation could result in an acquittal by a jury, it could not be regarded as anything other than the determination of a criminal trial. Even if there was no acquittal, the criminal charge remained alive and the accused remained liable indefinitely to be tried at a future date.
Even if a hospital order were not to be regarded as a punishment, the applicant pointed out that it was a sanction which the criminal courts could and did impose following the conviction of defendants in normal criminal trials. In this case, once the jury found that the applicant had committed the acts charged which constituted the offence of murder, the court was obliged to admit him to hospital without limit of time. He observed that the Government did not refer to any statutory or judicial authority to support their claim that a finding in the section 4A proceedings would not be relevant in a later trial. If it is considered irrelevant then the person would have been liable to two trials in respect of the same criminal allegation.
The applicant submitted that the proceedings which took place without his active participation were incompatible with the requirements of Article 6 §§ 1 and 3(d). His lawyers were limited in the instructions which they could take, he could not be called as the main witness and the opportunity of properly investigating the circumstances were inevitably severely hampered. Furthermore, the proceedings excluded any possibility of taking the mental element into account and had the effect in the applicant’s case of removing the possibility of pleading diminished responsibility and replacing the charge of murder with that of manslaughter. Finally, he submitted that the public interest was adequately protected by the provisions of the Mental Health Act which provided for a power of detention, treatment and supervised discharge without the need to prove that the person committed the act charged against him as an offence contrary to Article 6.
B. The Court’s assessment
The Court observes that the applicant was arrested by the police on 3 December 1995 on suspicion of involvement in the killing of Michael Earridge and that he was charged with murder on 5 December 1995. On 13 March 1997, he appeared in the Crown Court under an indictment containing counts of murder and manslaughter. There is no question but that the applicant was charged with a criminal offence during this period.
However, at the commencement of the proceedings on 13 March 1997, the applicant’s counsel made an application to the Crown Court that the applicant was unfit to plead and thus unable to stand trial. After hearing evidence from three psychiatrists, the jury were duly directed by the judge to find that he was unfit to plead and stand trial. The consequence of that finding was that pursuant to section 4A(2) of the 1964 Act the trial came to an end, the applicable legislation recognising, in accordance with the case law of this Court, that it is generally unfair to try a defendant who has been found to be incapable of participating effectively in the proceedings.
Instead, the Crown Court proceeded to hold a section 4A hearing, before a fresh jury, to establish whether the applicant had carried out the act charged as murder against him. Pursuant to the 1964 Act, the applicant could be acquitted of the charge against him, but, following the finding of unfitness to plead, no conviction was possible. The Court considers that these proceedings did not therefore concern the determination of a criminal charge. The applicant was no longer under any threat of conviction. The applicant argued that the possibility of an acquittal brought the proceedings within the scope of Article 6, since, to that extent, a final decision could be taken regarding a criminal charge. The Court is not persuaded however that this renders the proceedings criminal for the purposes of Article 6 § 1. It may be regarded as a mechanism protecting an applicant, wrongly accused of participation in a purported offence, from the making of any preventative orders under section 5(2) of the 1964 Act. The lack of a possibility of a conviction and the absence of any punitive sanctions are more decisive. Though hospital orders may be imposed on defendants in criminal trials and involve the loss of liberty, it cannot be argued that such an order is a measure of retribution or deterrence in the sense of the imposition of a sentence of imprisonment.
While it is true that the section 4A hearing had strong similarities with procedures at a criminal trial, the Court notes that the proceedings were principally concerned with the actus reus, namely whether the applicant had carried out an act or made an omission which would have constituted a crime if done or made with the requisite mens rea. This, as described by Lord Hutton in the House of Lords, served the purpose of striking a fair balance between the need to protect a person who had, in fact, done nothing wrong and was unfit to plead at his trial and the need to protect the public from a person who had committed an injurious act which would have been a crime if carried out with the appropriate mens rea.
The Court is satisfied therefore that the essential purpose of the proceedings was to consider whether the applicant had committed an act the dangerousness of which would require a hospital order in the interests of the protection of the public. It concludes that the section 4A proceedings did not involve the determination of a criminal charge and therefore the question as to whether it was compatible with Article 6 § 1 of the Convention that in those proceedings the applicant was unable to participate effectively due to his mental state does not arise.
The Court recalls that the applicant argues, in the alternative, that if the proceedings did not involve the determination of a criminal charge there has been a violation of the right to a fair trial within a reasonable time, which is continuing and will continue indefinitely unless and until the applicant becomes fit to plead, is tried or is either finally acquitted or finally convicted. On this basis, the proceedings had continued for almost five years at the date of introduction of the application and were still pending.
It follows however from the Court’s reasoning above that the criminal proceedings against the applicant were for practical purposes terminated on 18 March 1997 when he was found unfit to stand trial. While it remains theoretically possible that at some later date the Secretary of State may decide that the applicant has become fit to plead, it cannot be considered that the charge nonetheless remains pending. The Secretary of State may never in fact re-institute proceedings against the applicant. If he does, the question of whether the applicant is tried within a reasonable time will depend on an examination of the period between the first concrete step taken to institute another trial which can be regarded as substantially affecting the applicant’s position and the conclusion of those proceedings. There is accordingly no problem of delay arising in the determination of the criminal charge in the present circumstances.
It follows that this part of the application is, respectively, incompatible ratione materiae and manifestly ill-founded and must therefore be rejected pursuant to Articles 35 §§ 3 and 4 of the Convention.
2. THE APPLICANT’S DETENTION
The applicant also complains that his indeterminate detention in circumstances where the charge of murder may be revived, with an attendant risk that anything which he says about the incident to those treating him could be later used against him, infringes Articles 3, 5 and 6 § 2 of the Convention.
These provisions provide as relevant:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5 § 1:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...”
Article 6 § 2:
“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The case-law of the Court establishes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (see, for example, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (V. v. the United Kingdom, [GC], no. 24888/94, ECHR 1999-IX, § 71).
In the present case, where the applicant is detained under a hospital order as being mentally ill, the Court is not persuaded that the hypothetical threat of future proceedings has such an impact on the applicant’s physical or mental well-being as to give rise to an issue under Article 3 of the Convention. It would note that if no section 4A proceedings had taken place and the applicant had been committed to hospital without any criminal charges having been raised, it would still have been open, in theory, for the Crown Prosecution Service to bring a prosecution at a later date, as there is no time-limit imposed for proceedings where murder is concerned. This state of affairs appears the inevitable consequence of the applicant’s current mental state which renders a conclusive disposal of the potential charges against him impossible. Insofar as this is alleged to affect his care in hospital, the applicant has not provided any further substantiation of this complaint and it is not apparent that he is being denied any particular treatment.
Nor does the Court find that this situation discloses any arbitrariness which might offend Article 5 § 1 of the Convention. Not only is there no dispute that the applicant is lawfully detained as a person of unsound mind, but the detention followed proceedings which offered the strong procedural guarantees of a fair, public and adversarial hearing before an independent tribunal and with full legal representation. Moreover, although the hospital order is of indefinite duration, his detention will be subject to periodic reviews under the mental health legislation to monitor when he may be released.
As regards the complaint raised under Article 6 § 2 of the Convention, the Court finds this complaint to be premature. There is no indication that the applicant is currently being presumed guilty of any criminal offence. If in the future statements made by him to his doctors are sought to be introduced in evidence against him, issues may arise concerning a breach of the privilege against self-incrimination (cf. Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI). However, it is by no means certain that such an event will arise or that domestic law would not provide the applicant with remedies against the use of such statements at any trial.
The Court concludes that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Matti Pellonpää
ANTOINE v. THE UNITED KINGDOM DECISION
ANTOINE v. THE UNITED KINGDOM DECISION