Juncal, R (on the application of) v Secretary of State for the Home Department & Ors [2008] EWCA Civ 869

[2008] EWCA Civ 869Case No C1/2008/0222
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2007] EWHC 3024 (Admin)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE WYN WILLIAMS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/07/2008
Before
LORD JUSTICE PILLLORD JUSTICE SCOTT BAKERLORD JUSTICE RICHARDS
Between
The Queen on the Application of David Grant JuncalAppellant(2) East London and the City Mental Heath NHS TrustRespondents(3) The Scottish MinistersRespondent(4) The Secretary of State for Northern IrelandRespondent
Mr Richard Gordon QC and Mr Denis Edwards (instructed by Messrs Campbell-Taylor Solicitors) for AppellantMr Martin Chamberlain (instructed by the Treasury Solicitor for First, Third and Fourth Respondents and by Messrs Bevan Brittan for the Second Respondent)Hearing Hearing dates : 14 & 15 May 2008
Judgment
[1]This is an appeal against a judgment of Wyn Williams J dated 19 December 2007 whereby he dismissed a claim by Mr David Grant Juncal (“the appellant”) for declarations that the appellant’s detention has been and continues to be unlawful. It is claimed that the appellant has been unlawfully detained since being found unfit to plead, at the Crown Court in Belfast on 16 December 1997, to a charge of unlawful wounding in March 1997, contrary to section 20 of the Offences Against the Person Act 1861. Permission to appeal was granted by the judge.

The sequence of events

[2]On 16 December 1997, the appellant was made subject to a hospital order together with a restriction order made without limitation of time, imposed under article 49 of The Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”). The order recited that the appellant was suffering from the mental illness known as paranoid schizophrenia. He has since been detained in hospitals.[3]The record of proceedings at the Belfast Crown Court is far from complete but the judge made findings of fact which are not challenged in this appeal. Prior to his trial, the appellant was admitted, for urgent psychiatric assessment, to the psychiatric unit of the prison at which he was held. Following further reports, a jury was empanelled on 16 December 1997 and, having heard oral evidence from Dr Brian Fleming and Dr Frederick Brown, both consultant psychiatrists qualified to offer opinions, the jury concluded that the appellant was unfit to plead. The procedure under article 49 of the 1986 Order was followed so that there was no investigation by the court of the facts upon which the criminal charge was based or of whether the appellant had carried out the acts alleged to form the substance of the charge.[4]Two weeks after the court’s findings, an order was made pursuant to section 81(1) of the Mental Health (Scotland) Act 1984 (“the 1984 Act”) authorising the appellant’s removal to Scotland. The 1984 Act applied to Northern Ireland so that the Secretary of State for Northern Ireland was empowered to give the written authority for transfer, which he did on 30 December 1997. Section 81(2) of the 1984 Act provides:
“. . . where a patient who is liable to be detained under this Act by virtue of an application, Order, or direction under any enactment in force in Northern Ireland is removed under this section and admitted to a hospital in Scotland, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application forwarded to the managers of the hospital, or an Order or direction made or given, on that date under the corresponding enactment in force in Scotland . . .”
A provision to the same effect appears in Section 77(2) in relation to a removal from Scotland to England and Wales.[5]The power to remove was exercisable only if it was established to the satisfaction of the Secretary of State for Northern Ireland that it was “in the interests of the patient to remove him to Scotland, and that arrangements had been made for admitting him to a hospital . . .” (Section 81(1) of 1984 Act). Subject to its legality, it is accepted that, because his mother lived in Scotland, the move was in the interests of the appellant.[6]On admission to hospital in Scotland, the appellant was medically examined by Dr Colin Gray, consultant forensic psychiatrist, and his report is dated 4 February 1998. Pursuant to a warrant issued by Scottish Ministers on 7 June 2005, the appellant was transferred to a hospital in England under section 77(1) of the 1984 Act on the basis that it was in his interest. By virtue of section 77(2) he was treated as being detained in England under the enactment “corresponding” to that in force in Scotland (ss37/41 of the Mental Health Act (“the 1983 Act”)), as provided by the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”) and the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (“the 1991 Act”). The appellant continues to be detained under those sections.[7]By Home Office letter dated 7 June 2005, the appellant was notified of his position under the legislation dealing with mental health. He was supplied with a leaflet explaining the effect of orders under sections 37 and 41 of the 1983 Act. He was told that there were some statements in the leaflet which did not apply to him:
“1. Because you have not yet stood trial for the offence(s) of which you are accused, it may be necessary, when you have recovered sufficiently, to make arrangements for you to appear again before the court. Your doctor will advise the Home Secretary about this. 2. You do not have to wait 6 months before you can apply to the Tribunal [Mental Health Review Tribunal]. You can apply once at any time in the first 6 months of your detention. If you do not use this right yourself, the Home Secretary has to refer your case to the Tribunal at the end of the 6 months. After that, if you are still detained in hospital, your rights of application are the same as stated in the leaflet. If you have any questions about this the doctor or a nurse or social worker will help you.”

The 1986 Order

[8]The 1986 Order was made pursuant to powers conferred by the Northern Ireland Act 1974 (“the 1974 Act”), section 1(1) of which provides:
“Her Majesty may by Order in Council dissolve the Assembly elected under the Northern Ireland Assembly Act 1973 . . .”
[9]Section 1(3) provides:
“(3) The provisions of Schedule 1 to this Act shall have effect with respect to the exercise of legislative, executive and other functions in relation to Northern Ireland during the interim period specified by or under sub-section (4) below.”
In the event, the “interim period” under Section 1(4) lasted for many years.[10]Schedule 1, so far as is material, provides:
“1. (1) During the interim period - (a) . . . (b) Her Majesty may by Order in Council make laws for Northern Ireland and, in particular, provision for any matter which the Constitution Act authorises or requires provision to be made by Measure. (2) . . . (3) . . . (4) No recommendation shall be made to Her Majesty to make an Order in Council under this paragraph unless either - (a) a draft of the Order has been approved by resolution of each House of Parliament; . . .” (a) . . . (b) Her Majesty may by Order in Council make laws for Northern Ireland and, in particular, provision for any matter which the Constitution Act authorises or requires provision to be made by Measure. (a) a draft of the Order has been approved by resolution of each House of Parliament; . . .”
[11]The 1986 Order was made in accordance with the requirements of the 1974 Act. Article 49 provided for what was to occur when a finding of unfitness to plead had been made:
“(5) Where in accordance with paragraphs (2) to (4) it is determined that the accused is unfit to be tried - (a) the court shall direct a finding to that effect to be recorded; and (b) the trial shall not proceed or, as the case may be, proceed further. (6) Where a court has directed that a finding be recorded in pursuance of paragraph 5(a) . . . the court shall order that the person to whom the finding relates shall be admitted to hospital. (7) An order under paragraph (6) shall have the same effect as a hospital order together with a restriction order made without limitation of time. (8) Where the Secretary of State is notified by the responsible medical officer that a person detained in a hospital by virtue of an order under paragraph (6) no longer requires treatment for mental disorder, the Secretary of State may remit that person to prison or to a remand centre or remand home for trial by the Crown Court at the place where, but for the order, he would have been tried, and on his arrival at the prison, remand centre or remand home the order under paragraph (6) shall cease to have effect.”
Sub-sections (6) and (7) reflect the power of a court in England and Wales, under the 1983 Act, in certain circumstances to make a hospital order (section 37) and a restriction order (section 41). (a) the court shall direct a finding to that effect to be recorded; and (b) the trial shall not proceed or, as the case may be, proceed further.[12]Article 49(3) provides:
“(3) If, having regard to the nature of the supposed mental condition of the accused, the court is of opinion that it is expedient so to do and in the interests of the accused, the court may - (a) postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence; and (b) if, before the said question falls to be determined, the jury returns 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.” (a) postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence; and (b) if, before the said question falls to be determined, the jury returns 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.”
[13]The formal order of the Belfast Crown Court is headed with a reference to article 49(6) of the 1986 Order and recites the finding that the appellant has been found to be under a disability so that he cannot be tried on the section 20 offence. On that finding, a hospital order, with a restriction order made without limitation of time, followed necessarily under article 49(6) and (7). The order does, however, recite a further finding that the appellant “is suffering from mental illness which warrants his detention in hospital for medical treatment”, and also recites the need for a restriction order. The point can, however, fairly be made that, because in the circumstances such findings were superfluous to the statutory procedure followed, they cannot conclude the issue whether the mental disorder was of a kind warranting compulsory confinement.

Procedure for Detention

[14]The procedure in the 1986 Order was based on that in the 1964 Act. The nature of detention under the 1964 Act, as amended by the 1991 Act, was considered in the Court of Appeal Criminal Division in R v M [2002] 1 WLR 824. Giving the judgment of the court, Rose LJ stated, at paragraph 21:
“The old orders available to the courts [including the hospital order with restrictions] do not include any punishment or any order that can be seen as retributive or deterrent. With the exception of an absolute discharge, they are concerned with the treatment and care of the accused.”
The court referred, at paragraph 22, to the impact of the Convention:
“The right to liberty and security is the subject of article 5. Detention after conviction is only one of the cases in which deprivation of liberty is permitted by article 5.5(1). In the present connection, the other relevant paragraph of article 5(1) is (e): the lawful detention of persons of unsound mind. The protection of persons detained on the ground that they are of unsound mind is contained in article 5(4).”
[15]The 1964 Act was amended by the 1991 Act for England and Wales so that, by Section 4A, a jury was to determine whether the person charged did the act or made the omission charged against him. The Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) amended the procedure in Scotland in a similar way and it is understood that the same change was made in Northern Ireland in 1998.[16]That procedure being in place, it is conceded that the right of a detained person to test the appropriateness of his continued detention before a Mental Health Review Tribunal (“MHRT”) now complies with the requirements of the European Convention on Human Rights (“the Convention”), notwithstanding the absence of a conviction. The role of the MHRT was considered by the European Court of Human Rights (“ECtHR”) in X v United Kingdom [1982] EHRR 188. The court stated, at paragraph 58, that what was required was review:
“wide enough to bear on those conditions which, according to the Convention, are essential for the “lawful” detention of a person on the ground of unsoundness of mind, especially as the reasons capable of initially justifying such a detention may cease to exist . . . This means that in the instant case article 5(4) required an appropriate procedure allowing a court to examine whether the patient’s disorder still persisted and whether the Home Secretary was entitled to think that a continuation of the compulsory confinement was necessary in the interests of public safety.”
[17]The appellant has a right to apply to an MHRT for discharge. He has not hitherto exercised that right but, we are told, he now intends to exercise it, subject, of course, to the outcome of these proceedings.[18]The present detention is to be judged, it is submitted, by reference to the Convention. While the questions to be asked under the Convention may differ from those under domestic law, it is convenient to refer to the relevant provisions of the Convention at this stage.

(e) :

“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.”
The appellant is claimed by the Secretary of State to be of unsound mind. (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.”[19]Article 5.4 of the Convention provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Article 6, of course, confers a right to a fair hearing and article 8 confers, amongst other things, a right to respect for private life.

The judgment below

The judge held:

[20](a) the 1964 Act, and its Scottish equivalent, did not authorise anything that was arbitrary (paragraph 60).(b) It followed that Parliament did not, by the 1986 Order, pass subordinate legislation which authorised arbitrary detention at hospital (paragraph 60).(c) It was clear from Dr Gray’s report to the Belfast Crown Court that the appellant’s compulsory hospitalisation was justified. No other interpretation of the report, when read as a whole, was tenable (paragraph 55).(d) The subsequent transfers were lawful in terms of the legislation which authorised them. The key statutory word was “corresponding” and the statutory provisions dealing with fitness to plea in the different parts of the United Kingdom came within that definition.(e) The appellant’s detention at hospital throughout the period of detention has been lawfully authorised by relevant domestic legislation (paragraph 64).(f) The 1998 Act did not operate retrospectively and events at the Belfast Crown Court in 1997 could not be challenged under article 6 of the Convention (paragraph 73).[21]As to the events of 1997 and 1998, the judge found:(a) The issue of the appellant’s fitness to plead at Belfast Crown Court was determined by a jury after they had heard evidence from two consultant psychiatrists qualified to offer appropriate opinions. The doctors were Dr B Fleming and Dr FWA Brown.(b) The history recorded in the medical report from Dr CM Gray, consulting forensic psychiatrist, dated 4 February 1998 was accurate. (The report itself had not of course been before the Belfast Crown Court).[22]The history recorded by Dr Gray was:(a) The appellant was detained in custody from 12 March 1997. On 19 May 1997 he was admitted to the psychiatric unit at the prison for urgent psychiatric assessment. He displayed evidence of acute psychotic illness and engaged in a range of behaviours which led to referral to Dr Gray.(b) The appellant had a long history of paranoid schizophrenia and had spent three and a half years in Rampton High Security Hospital, being discharged in 1995.(c) The appellant was treated with anti-psychotic medication and engaged in a range of behaviours that would indicate he posed a considerable risk to other prisoners when acutely psychotic.(d) In October 1997, the appellant was assessed by Dr Bownes [whom the judge clearly believed to be the same doctor as Dr Brown or Dr Browne mentioned in the 1997 order]. Dr Bownes felt that the nature and severity of the appellant’s symptoms were such that his capacity to provide evidence in his own defence and to follow and understand proceedings in a criminal trial would be severely impaired. Dr Bownes considered him unfit to plead by reason of active mental illness. He needed in-patient psychiatric care and the seriously damaging and dangerous nature of his behaviour meant that he required psychiatric treatment in the specialist setting of a maximum security unit.(e) The appellant was further assessed, at the request of the prosecution, by Dr Fleming. He too concluded that the appellant suffered from severe psychotic illness superimposed on personality problems. He was, in the doctor’s opinion, “one of the most potentially dangerous individuals that he had come across in 17 years of psychiatric practice.”[23]The judge observed, at paragraph 47, that the real issue was whether or not detention authorised by article 49 of the 1986 Order is arbitrary detention. He stated:
“49. In my judgment Article 49 of the Order did not authorise anything which was capricious, despotic or based upon random choice. Further, I do not consider that it authorised an action which was based upon uninformed opinion. Clearly, the Article did not provide for an investigation of whether the person concerned had committed the acts or made the omissions which founded the criminal charge which he faced but, in my judgment, that, of itself, does not mean that the detention was authorised upon uninformed opinion. The Order laid down two circumstances which had to be satisfied before detention could be ordered. The circumstances were that the person in question was charged with a criminal offence which was triable upon indictment and that he was unfit to be tried upon that indictment. The Court had to properly inform itself and be satisfied that those criteria were met before an order could be made for detention at hospital. 50. Article 49(3) is also, in my judgment, important in the context of deciding whether or not the Article, as a whole, authorised arbitrary detention. Article 49(3)(a) allowed the court to postpone the issue of unfitness to be tried to any point in time until the beginning of the case for the defence. That is a power which the Court could and, no doubt, would invoke if it appeared to the court that the case for the prosecution was very weak and that there was a real prospect that at the close of the prosecution's case there would be a directed verdict of not guilty. In my judgment this was a significant safeguard. In summary, it enabled a judge to protect the accused person from the mandatory order which would follow upon the finding that he was unfit to be tried in a case where he was likely to be acquitted of any offence at all.”
[24]Dr Gray’s opinion as to the appellant’s mental state in January 1998, expressed in February 1998 and not with the issue of fitness to plead in mind, was that the appellant was “suffering from chronic paranoid schizophrenia which is most likely complicating underlying personality difficulties”. The appellant’s “potential for violent behaviour is in the highest order”. Dr Gray did, however, find that the appellant “did not display clear evidence of paranoid delusions at the time of interview”. The appellant’s insight into his illness was “poor” although there was some insight. The appellant considered himself to be suffering from mental illness and to be in need of medication.

Submissions and Authorities

[25]For the appellant, Mr Gordon QC submits that the procedure laid down by the 1986 Order and followed in the Belfast Crown Court was such that the Order made was unlawful as arbitrary and contrary to fundamental constitutional rights and that the 1986 Order itself and the order made by the court in 1997 were therefore unlawful as a matter of domestic law. The judge was wrong, it is submitted, in paragraph 49 of his judgment, to find otherwise and erred further, in paragraph 50, in attaching importance in this context to the power conferred by article 49(3) of the 1986 Order to postpone consideration of the question of fitness to plead. Detention in Northern Ireland was unlawful and the subsequent transfers did not make lawful what was unlawful from the start. It is not submitted in this court that the Human Rights Act 1998 (“the 1998 Act”) applied to the 1997 order or to the transfer to Scotland in 1998, but the issue of retrospectivity is reserved for possible argument elsewhere.[26]The subsequent transfers were, it is submitted, in themselves unlawful. Moreover, the 1998 Act did apply to the transfer from Scotland to England in 2005. The separate executive act by which the transfer to England was effected was unlawful, because contrary to article 5 of the Convention, as is the continued detention. The transfer did not provide for a review either of the facts which led to the 1997 order, or of the appellant’s mental health, or of his fitness to plead. Reliance is also placed on articles 6.1 and 8.[27]The central point taken by Mr Gordon, the heart of the challenge as the judge put it, is that detention was authorised by the 1986 Order without there having been any determination by a court of the facts alleged to constitute the offence of unlawful wounding, including what acts were committed, or even whether the appellant had committed them. Detention in a mental health context was in the circumstances arbitrary. Neither criminality nor dangerousness were determined. The appellant was denied an examination of the facts on which the charge of unlawful wounding was brought and denied judicial analysis of his mental disorder. There was no logical connection between fitness to plead and unsoundness of mind.[28]It is accepted, for present purposes, that the procedure under the 1986 Order was correctly followed. Had the factual issues been subject to a hearing, the appellant would not, in the event, have denied presence at the scene of the violence. His defence would have been that, when he wounded the complainant, he acted in self-defence. In the absence of a trial, the detention, which under the order was indefinite detention, was unlawful. Such an order could have been made following charge for a lesser indictable offence, such as petty shoplifting, which demonstrates, it is submitted, the unlawfulness of the procedure. The procedure was ill-suited to the combination of nature of case and nature of mental disorder which could arise. Parliament could not lawfully authorise courts in Northern Ireland to act in that manner.[29]For the Secretary of State for the Home Department, Mr Chamberlain submits that the 1986 Order did not infringe the principle of legality. Parliament has provided a legitimate procedure to deal with a problem which will inevitably on occasions arise, that of fitness to plead. The 1997 order did not involve any finding of culpability and there was no element of punishment or deterrence in the order. It did not require a minimum period of detention. Detention was to be in hospital and for the purpose of medical treatment. Provision was made for reference back to the Crown Court.[30]Mr Gordon accepts that the detention has some of those features. Indeed, he relies on them as demonstrating the arbitrariness, he submits, of using a procedure intended for a criminal process (fitness to plead) for the separate purpose of establishing unsoundness of mind.[31]The procedure under the 1986 Order does not comply with article 5.4 of the Convention, it is submitted, because the appellant is not able to challenge whether he did the act complained of in 1997, that is the act of wounding, unlawfully and not in self-defence. Any application for release will be considered on the assumption that he did the acts complained of.[32]It is further submitted that the detention is unlawful because there has been no judicial determination of the criterion, mental disorder, which gave rise to the original order. A finding of “unfitness to plead”, under article 49, is not a finding of “unsoundness of mind” within the meaning of article 5.1(e). Further, even as to fitness to plead, a review only weeks after the hearing in Belfast, had it taken place, would have demonstrated that the appellant was by then fit to plead.[33]Realistically, it is accepted on behalf of the appellant that there has at all stages been evidence of mental illness. It is submitted that if action was and is required on that ground, it should have been taken under section 3 of the 1983 Act, described as civil detention. Amongst the requirements for detention are that “it is necessary for the health or safety of the patient or for the protection of other persons that he should receive . . . treatment” (section 3(2)(c)). It is accepted that a sectionable mental disorder existed in 1997. Continued detention, it is submitted, can only be justified under section 3.[34]If that route were to be followed, there would be no restriction order under section 41 of the 1983 Act (or under article 49(6) and (7) of the 1986 Order). In both cases, application for discharge can be made to an MHRT but there is no doubt that the difference has significant practical consequences. A non-restricted patient can be granted leave of absence from hospital at the Responsible Medical Officer’s (“RMO”) discretion. In the case of a restricted patient, the consent of the Secretary of State is required. The RMO is prepared to grant leave of absence in the present case but the Secretary of State is not. The power of an MHRT to discharge is broader in the case of a non-restricted patient than in the case of a restricted patient. In the case of restricted patients, the consent of the Secretary of State is required for a hospital transfer, or a discharge.[35]The case on article 8 is based on the additional interference with private life arising because the appellant is a restricted and not a non-restricted hospital patient. This submission has assumed a significance it does not appear to have been given before the judge. It is allied to the submission that, in present circumstances, only civil detention under section 3 of the 1983 Act can be lawful. On article 6, the submission is that continued detention on the basis of a charge not determined is an affront to the entitlement to a fair hearing. Mr Gordon accepts, however, that reliance on article 6 adds little on the facts to reliance on article 5.1, on which the case primarily turns.[36]In Winterwerp v Netherlands [1979] 2 EHRR 387, the ECtHR considered the lawfulness of Dutch legislation authorising the detention of persons of unsound mind. The purpose of article 5.1 is “to ensure that no one should be dispossessed of his liberty in an arbitrary fashion” (paragraph 37). The court stated, at paragraph 39:
“The Commission likewise stresses that there must be no element of arbitrariness; the conclusion it draws is that no one may be confined as 'a person of unsound mind' in the absence of medical evidence establishing that his mental state is such as to justify compulsory hospitalisation . . . The applicant and the Government both expressed similar opinions. The Court fully agrees with this line of reasoning. In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise. Further the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder”
That approach was confirmed in Johnson v United Kingdom [1997] 27 EHRR 296.[37]Mr Gordon seeks to rely on the decision of the Divisional Court in R (Kenneally) v Crown Court at Snaresbrook [2002] QB 1169 which involved a consideration of the power in section 51 of the 1983 Act to make a hospital order (with or without a restriction order) in the absence of a defendant and without convicting him. That power may be exercised if it appears to the court that it is “impractical or inappropriate” to bring the detainee before the court. Giving the first judgment, I stated, at paragraph 32, that the word “inappropriate” must be construed restrictively:
“A high degree of disablement or relevant disorder must be present. The section does not apply in a situation in which all that is involved is possible inconvenience for the court and inevitable distress for the defendant and others likely to be concerned in a trial, if a trial is held.”
[38]Reliance is placed on my statement at paragraph 17 that a section 51 order “may have a profound affect”, my references at paragraph 31 to the “serious and long term effects upon the liberty of the defendant” which may follow the making of a hospital order, and my statement at paragraph 35 that “to pass sentence, even a sentence one of the objects of which is to assist the defendant, without first convicting him, is a drastic step, one that should be taken only in exceptional circumstances”.[39]The court in Kenneally was concerned with a question quite different from that in the present case which was as to the circumstances in which a court should make an order without a finding of unfitness to plead. That a hospital order may have a serious effect upon the liberty of the defendant is not challenged in the present case. However, a finding that a hearing as to fitness to plead is normally required does not assist the appellant on the issue of the consequences of a finding of fitness to plead when such a finding has been made following the procedure in the 1986 Order. Section 51 (or its equivalent) was not relied on in the present case. A hearing as to fitness to plead was properly conducted in accordance with the terms of the 1986 Order. I do not consider that the findings in Kenneally assist the appellant.[40]The question for the court in R v Grant [2001] EWCA Crim 2611, (constituted both as a Court of Appeal (Criminal Division) and as a Divisional Court), turned on the provisions of section 5 of the 1964 Act, as amended. A judge of the Crown Court is obliged under the section to make a mandatory order containing restrictions on the liberty of the accused person where the accused person has been found to have committed an act which constituted the actus reus of murder where the person was indicted for murder without there being any determination by an independent and impartial tribunal as to whether the appropriate count was one of murder or manslaughter. It was submitted that the provision is incompatible with articles 5.1(e) and 6.1 of the Convention. A jury had found, under section 4(5) of the 1964 Act as amended, that the defendant was unfit to plead.[41]Giving the judgment of the court, Rose LJ, Vice President presiding, Richards J stated:
“Subject to the concern expressed below, it is not unreasonable for Parliament to have decided to lay down a mandatory requirement of admission to hospital for a person who has been charged with murder, has been found to have done the act charged, but is under a disability so as to be unfit to be tried; and detention in those circumstances is not to be regarded as "arbitrary" for the purposes of Article 5(1)(e). The right to make immediate application to the MHRT and the other protections operating following admission to hospital ensure compliance with Article 5(4)”
[42]The court went on to express the point of concern:
“52. The point of concern is whether the procedures give proper effect to the second of the conditions laid down for detention under Article 5(1)(e). To adopt the formulation in R (H) v. London North and East Mental Health Review Tribunal, "the test is whether it can be reliably shown that the [person] suffers from a mental disorder sufficiently serious to warrant detention". The procedures under the 1964 Act are not directed specifically to that question. The issue under section 4 is whether the defendant is fit to be tried, which involves consideration of whether the defendant has sufficient intellect to instruct his legal team, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence. Those criteria do not correspond directly to the criteria for a mental disorder sufficiently serious to warrant detention, and it may be possible for a person to be found unfit to be tried without his suffering from a mental disorder sufficiently serious to warrant detention. Yet once a person facing a charge of murder has been found to be unfit to be tried, there is no further consideration of his mental condition under the statutory procedures prior to admission to hospital. If the jury find under s.4A(2) that he did the act charged, it is mandatory for the judge to make an admission order under s.5. The judge cannot consider whether such an order is justified on the medical evidence. Thus no-one is required specifically to address, prior to the person's detention, the question whether he suffers from a mental disorder sufficiently serious to warrant detention. This feature of the procedure does raise the question whether detention is "arbitrary" in the sense explained by the European Court of Human Rights in Winterwerp and Johnson. 53. It seems to us that the question is one of some difficulty. The answer to it may lie, but does not necessarily do so, in Mr Eadie's submission that this is a difficult and complex area where Parliament has carried out the requisite balancing exercise and has concluded that, where it has been found by a jury that a person is unfit to be tried and has done the act charged as murder, the automatic consequence ought to be admission to hospital as prescribed in s.5 (subject to the person's right to make immediate application to the MHRT and to the other protections afforded to a person subject to detention under these provisions); that the court should afford a measure of deference to Parliament in such a field; and that in all the circumstances the procedure is not to be stigmatised as arbitrary for the purposes of Article 5. 54. In the circumstances of the present case, however, it is unnecessary for us to reach any conclusion on that issue, since we are satisfied on the particular facts that the conditions for detention, albeit not considered in terms under the statutory procedure, were in fact met. All the experts who gave evidence in the s.4A proceedings were of the view that the appellant suffered from mental impairment within the meaning of the Mental Health Act 1983. They did not consider the question of disposal because it was not necessary for them to do so. [The medical history was considered]. We are also told that, though no report is available, the Secretary of State understands from the clinical staff at the hospital that they believe that the appellant's mental impairment would justify her continuing detention in hospital and that there is treatment available which is alleviating her condition. Looking at the evidence as a whole, we take the view that the appellant did suffer from a mental disorder sufficiently serious to warrant detention and that the conditions for initial detention under Article 5(1)(e) were therefore met. That is a sufficient basis for rejecting this part of the appellant's case. ”
[43]The point of concern raised in Grant is different from, but related to, the point raised in the present case that a consideration of fitness to plead is different from a consideration of unsoundness of mind. Fitness to plead is concerned with whether the defendant has sufficient intellect to comprehend the course of the proceedings at the trial, to instruct his solicitor and counsel, to plead to the indictment, to challenge jurors, to understand the evidence and to give evidence (R v Pritchard [1836] 7 C&P 303). In Grant, the court acknowledged, at paragraph 52, that the question whether the defendant suffered from a mental disorder sufficiently serious to warrant detention had not been specifically addressed. The court held that, on the evidence, the defendant did in fact suffer from such a mental disorder and it was unnecessary to reach a conclusion on the point of concern.

Conclusions

[44]It is necessary to recall that the order of the Belfast Crown Court in 1997, when made, is to be judged by the standards of domestic law. It is conceded in this court that the provisions of the 1998 Act do not have retrospective effect. The effect of the process followed at that time and the resulting order continues to be felt (R v Lambert [2002] 2 AC 545; R v Kansal (No.2) [2002] 2 AC 69). As the judge put it at paragraph 69 by reference to the speech of Lord Slynn of Hadley in Lambert (paragraph 13), the 1998 Act “cannot be used to challenge a person’s continued detention on the basis that the process which led to it contravenes a Convention right if the impugned process occurred prior to coming into force of the [1998] Act.” Neither have subsequent repeals undone the detaining power in the 1997 order.[45]I do not consider that the 1986 Order was unlawful as being arbitrary and unconstitutional. Parliament had the power to enact the 1964 Act dealing with fitness to plead. The 1974 Act empowered Her Majesty by Order in Council to make the 1986 Order, which was lawfully made.[46]In B (a minor) v Director of Public Prosecutions [2000] 2 AC 428, Lord Steyn stated, at page 470:
“In enacting such a provision [Children Act 1960] Parliament does not write on a blank sheet. The sovereignty of Parliament is the paramount principle of our constitution. But Parliament legislates against the background of the principle of legality.”
Even since the 1998 Act, however, Parliament can legislate contrary to fundamental principles of human rights. In R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115, Lord Hoffmann stated, at page 131:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words.”
[47]Parliament had a legitimate concern for the protection of the public, and defendants themselves, from persons whom it would be unfair to try because they have insufficient understanding of the trial process. A legal system must have a procedure for dealing with that situation. There was a right of appeal under the Criminal Appeal (Northern Ireland) Act 1980 against a finding of unfitness to plead, though it would be subject to the same limitation as is now complained of, in that there could be no investigation of whether the defendant had done the act or made the omission charged against him as the offence. The 1986 Order cannot, in my view, be challenged by resort to the principle of legality. The procedure provided was not capricious or arbitrary, and was followed. I agree with paragraph 49 of the judgment of Wyn Williams J, which I have set out at paragraph 23. The initial detention following the order of the Belfast Crown Court was, in my judgment, lawful.[48]I have summarised the evidence the judge found to have been before the Belfast Crown Court on 16 December 1997. It plainly demonstrated that the appellant did suffer from a mental disorder sufficiently serious in Winterwerp terms to warrant detention. The available medical evidence abundantly satisfied the Winterwerp test.[49]There is no evidence to suggest that the position is now different. The appellant has not applied to an MHRT for a discharge and the RMO has not notified the Secretary of State that the appellant no longer requires treatment for “mental disorder”. That expression was used in article 49(8) and provided some further safeguard for the appellant under the procedure followed. The court has not been told that he is fit to plead. Provision has been made for regular review of the appellant’s detention.[50]Fitness to plead does give rise to a question different from, though overlapping with, unsoundness of mind. There is a logical connection between them. I agree with the approach of the court to that question in Grant. The conditions for detention were not considered in terms under the statutory procedure followed but they were in fact met. As in Grant, the evidence demonstrates a mental disorder sufficiently serious to warrant detention. Moreover, a restriction order was inevitably required and would undoubtedly have been made upon a conviction.[51]I accept that, when testing the lawfulness of the detention under the Convention, the appellant will not have an opportunity to challenge the alleged acts and omissions which led to his being charged with unlawful wounding and appearing at the Belfast Crown Court in 1997. The test to be applied by the MHRT will go to the appellant’s mental condition, his own health and the safety and the protection of others and, on the facts of this case, it appears extremely unlikely that the result of his application will turn on whether he inflicted a wound in 1997 unlawfully or in self-defence.[52]There is no merit in the submission, not apparently made to the judge, that the appellant was fit to plead within a matter of weeks of the hearing in Belfast. In his report of 4 February 1998, Dr Gray was not specifically addressing the question of fitness to plead and such fitness cannot be inferred from Dr Gray’s comment that the appellant “did not display clear evidence of paranoid delusions at the time of interview”. It has never been suggested either by the medical authorities, or on behalf of the appellant himself, that he has become fit to plead and that trial is appropriate.[53]I agree with the judge (paragraph 50) that the power of a trial judge, under article 49(3)(a) to postpone the issue of unfitness to plead until any time up to the opening of the case for the defence was some safeguard for a defendant and may be taken into account in deciding whether the procedure as a whole under article 49 was lawful. The value to a defendant of such a hearing up to the time when the prosecution case is closed, may, however, be very limited. The present case is a good example of that. Evidence that the appellant wounded the complainant would not have been challenged. The defence notionally relied on, that of self-defence, is normally only made good when the defendant himself gives evidence, though there may be cases in which appropriate evidence may emerge from prosecution witnesses. An acquittal at the end of the prosecution case was a possibility but in this case, as in many other cases of self-defence, it is a rather unlikely one.[54]Moreover, the safeguard depends on the exercise of a judge’s discretion, which may be difficult to challenge. Its exercise would depend on the judge’s own assessment, on the basis of written material, of the likely strength of the case. In a complex case, a legitimate wish not to incur expense, and cause inconvenience and distress to witnesses, when there is plain medical evidence likely to lead to a finding of unfitness to plead, may legitimately influence a judge’s ruling. I am prepared to attach some weight to the presence of article 49(3) but its presence is, in my view, by no means decisive. If there had been substantial merit in Mr Gordon’s central point, it would not be defeated by article 49(3).[55]The transfers between jurisdictions were, in my view, lawful and the provisions in England, Scotland and Northern Ireland, though different from each other in some respects, were “corresponding” provisions which allowed the transfers to be made. All are concerned with the question, important to the public, and to individual defendants, of fitness to plead. Transfers are permitted “in the interests of the patient”.[56]I do not accept that the executive act by which the appellant was transferred from Scotland to England in June 2005, that is after the 1998 Act came into force, permits a challenge to the continuing effect of the 1997 order on Convention grounds. The transfer provisions in sections 77 and 81 of the 1984 Act acknowledge the presence in the United Kingdom of three jurisdictions. They permit administrative arrangements to transfer patients between jurisdictions “in the interests of the patient”. As such, the orders for transfer do not undo the effect of the 1997 order which remains the basis for detention.[57]It follows that the additional potential interference with the ability of the appellant to obtain, for example, leave for temporary absence from hospital, is justified under a restriction order properly made. Subject to the lawfulness of the 1997 procedure, already considered, the medical evidence before the Belfast Crown Court made a restriction order inevitable. The consequences of a lawful procedure continue to be lawful and justify the additional restrictions. In any event, there is no medical evidence before the court that circumstances have changed.[58]If my finding that the 1997 order remains effective on the Lambert principle is wrong, the current detention remains in, my view, lawful by reason of the provisions of article 5.1(e) of the Convention combined with the right of the appellant to seek discharge by way of an application to an MHRT. That satisfies the article 5.4 requirement.[59]In a summary form my conclusions are: (a). The 1986 Order was lawful; (b) The order made at the Belfast Crown Court on 16 December 1997 was lawful; (c) The legislation permitting transfer first to Scotland and then to England was lawful; (d) That legislation permitted the transfers which took place; (e) The transfers do not undo the lawfulness of the detention originally imposed even though the second of the transfers post-dated the coming into effect of the 1998 Act. The restriction order, lawful when imposed, continues to be effective; (f) That being so, the additional limitations imposed on the appellant because he is a restricted patient do not involve a breach of article 8 of the Convention; and (g) Even if it follows from the executive act by which the transfer to England was effected in 2005 that the 1997 order is no longer effective, and the lawfulness of the terms of the detention falls to be considered afresh, the detention, including the restriction order, is Convention compliant.[60]I would dismiss this appeal.[61]I agree.[62]I also agree.