Case No: 200101540 S2
2001000437 W4
200007209 Z2
Neutral Citation Number: [2001] EWCA Crim 2024
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL 
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 5th October 2001
B e f o r e :
The Vice President of the Criminal Division
(LORD JUSTICE ROSE)
MR  JUSTICE BELL
and 
MR JUSTICE STANLEY BURNTON

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R
v
Edward M
William K
Asad H

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Miss S Nabijou appeared for M
Mr R Smith QC & Mr J Rose appeared for K
Mr R Wright appeared for H
Mr PF Worsley QC , Mr J C Lofthouse and Miss S Beattie appeared for the Crown
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Judgment
As Approved by the Court

Crown Copyright ©

The Vice President : 

1.	These three cases involving fitness to plead were listed together before this court because they raise similar issues in relation to the statutory procedure, the compatibility of that procedure with the European Convention on Human Rights and the scope and exercise of the relevant judicial discretion.
2.	On 17th April 2000 at Leeds Crown Court, following a trial before  Hooper J, the applicant K was found unfit to plead on an indictment charging him with four counts of rape and fifteen counts of indecent assault.  On 18th December 2000, at the same court before His Honour Judge Myerson QC, a separate jury found that he had done one of the acts forming the basis of the charges against him, namely that on count 19 –indecent assault.  He was found not guilty of the acts on counts 2 and 17 alleging rape and on counts 6, 11,13 and 15 alleging indecent assault.  The jury were unable to agree a verdict on the acts in relation to counts 1,4,5,7,8,9,10,12,14 and 16 alleging indecent assault or on  Counts 3 and 18 containing allegations of rape: all these counts were left on the file on the usual terms.  On 19th December 2000 the applicant was discharged absolutely.  His application for leave to appeal against conviction has been referred to the full court by the Registrar.  
3.	The history of the proceedings is that, on 17th September 1999, committal proceedings took place which were uncontested save for an unsuccessful submission on abuse of process.  In October 1999 an application to the Attorney General for a nolle prosequi was refused.  On 17th April 2000 the hearing as to fitness to plead was uncontested.  Evidence was called from a number of doctors instructed by the defence and by the prosecution whose conclusion was that the applicant was suffering from organic brain disease resulting in severe and continuing deterioration in his cognitive function.  He was also suffering the consequences of extensive surgery for advanced carcinoma of the ascending colon:  he was receiving opiate drugs likely to compromise the ability of his brain to cope with the intellectual demands of the adversarial trial process.  He would be unable to follow the trial, give evidence or instruct his legal advisors.  The jury found him under a disability pursuant to s4 of the Criminal Procedure (Insanity) Act 1964 and proceedings were adjourned for submissions that it would be an abuse of process to proceed further pursuant to s4A of the Act.  On 12th June 2000 the defence submitted that the s4A procedure was inappropriate as the applicant presented no risk to the public and the likely disposal was one of absolute discharge.  Hooper J concluded that, in the light of the extremely serious nature of the allegations, the public interest in having such allegations against a member of the medical profession investigated outweighed the applicant’s private interest in not having to undergo an enquiry.  The judge was not prepared to presume prejudice from delay and left this matter for determination by the judge conducting the s4A hearing.  Hooper J also rejected a submission that to proceed under s4A amounted to a breach of the presumption of innocence arising from article 6.2 of ECHR.  
4.	In October 2000, following the coming into force of the Human Rights Act 1998, HHJ Myerson QC ruled that the s4A procedure was not incompatible with Article 6 of ECHR and he declined to stay the proceedings as an abuse of process.
5.	The allegations in the indictment related to the period between January 1968 and September 1988.  The sixteen complainants had been patients of the applicant, who was a consultant psychiatrist to whom they had been referred for treatment.  The allegation giving rise to count 19 was that the applicant put his fingers into the complainant’s vagina and masturbated her.  The applicant did not give evidence and no evidence was called on his behalf.  
6.	As to H, who is now fifteen, on 15th June 2000 at Bradford Crown Court, following a trial before HH Judge Adams, the jury found him unfit to plead to an indictment charging two counts of indecent assault upon a girl under the age of sixteen.  On 17th November 2000, at the same court before the same judge, another jury found he had done the acts forming the basis of the allegations of indecent assault and on 11th January 2001 he was discharged absolutely.  He appeals against conviction by leave of the single judge.  The first jury heard evidence from consultant psychiatrists instructed by the defence and the prosecution who agreed that the appellant has a very low IQ placing him in the mildly/moderately mentally-handicapped range.  He does not understand the concept of guilt and could not comprehend the evidence, so he would be unable properly to defend himself.  Prior to the hearing before the second jury, an application to stay the proceedings as an abuse based on Article 6 of ECHR and s23 of the Criminal Procedure and Investigations Act 1996 and the Codes of Practice made under it, placing a duty on investigators “to pursue all reasonable lines of enquiry”, was rejected.  The judge ruled that s4A procedures did not involve the consideration of criminal charges so there was no breach of Article 6 and there had been no breach of the Code by failing to interview another fourteen year old boy whom the complainant said had been present during the second of the incidents giving rise to the allegations.  The two incidents took place a week or two apart in June 1999 when the appellant was thirteen and the complainant fourteen.  In the second, the appellant had pushed her to the ground and tried to put his penis in her mouth but she had pushed him off.  In the first, he had pushed her to the ground and briefly grabbed her private parts and her breasts over her clothing before a friend pulled him off.  A police constable said there was insufficient evidence to justify interviewing the other youth under caution, since the only allegation against him was that he had said something to the appellant which the complainant did not understand and he had declined to give a statement as a prosecution witness, saying he was a friend of the appellant.
7.	As to  M, the indictment contained 3 counts of indecent assault on a female and seven of indecent assault on a male, said to have been committed between November 1973 and September 1989, the alleged victims being the applicant’s step-daughter and two adopted sons.  On 25th January 2001 before Rougier J at Winchester Crown Court, following uncontested evidence from the defence and prosecution, a jury found that the applicant was unfit to plead and stand trial.  The judge was invited to stay proceedings under s4A on the basis that an enquiry as to the facts would be unfair to the applicant; s4A was incompatible with Article 6 as the applicant would be unable to follow the proceedings or give instructions; and it would be an abuse of process to proceed because there was no independent evidence to support the defence and the applicant was not fit to give evidence.  On 22nd February 2001 Rougier J ruled that he had no power to stay the proceedings and that, if he had, he would have exercised it against a stay.  At that stage Miss  Nabijou, then as now appearing for the applicant, said that she wished to pursue the argument in relation to s4A before the Court of Appeal.  The judge said he was not minded to give leave to appeal but suggested that the matter be taken to the Court of Appeal before any trial on the facts took place.  Mr Lofthouse, then as now appearing for the prosecution, argued that there was no right of appeal because there had been no preparatory hearing within the meaning of s29 of the Criminal Procedure and Investigations Act 1996, the preparatory hearing procedure being for trials and s4A proceedings not being a trial.  At the suggestion of prosecuting counsel, the judge declared that the hearing had been a preparatory hearing.  The applicant now seeks leave to appeal against the judge’s ruling that a trial of the facts should be held under s4A.  The matter has been referred directly to the full court by the Registrar.  
8.	Before turning to the competing arguments, it is convenient to set out the relevant provisions of the statute and the ECHR.
9.	The Criminal Procedure (Insanity) Act 1964, as amended, provides:
“4.–(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”
“4A-	(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(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) guardianship order within the meaning of the Mental Health Act 1983;
(ii) 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”.

10.	Article 6 of the ECHR provides:
“6.1 In determination of his civil rights and obligations or 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.

6.2	Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

6.3	Everyone charged with a criminal offence has the following minimum rights:…

(b)  to have adequate time and facilities for the preparation of his defence.
(c) to defend himself in person or through legal assistance of his own choosing;…
(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”.
11.	Section 3 of the Human Rights Act 1998 requires the court, so far as possible, to read and give effect to the  1964 Act in a way which is compatible with Convention Rights. 
12.	On behalf of K, Mr Robert Smith QC  did not suggest that the prosecution were acting with bad faith or in a deliberately oppressive manner.  But, he submitted, the purpose of s4A proceedings is to protect the public and to provide for psychiatric disposal and, absent any such need or objective, a s4A enquiry is inappropriate.  He referred to Sullivan [1984] AC 156 at 172 Antoine [1999] 2 Cr App R 225 at 228E,  Attorney Generals Reference No 3  of [1998] [1999] 2Cr App R 214 at 219B-C and Antoine in the House of Lords [2000] 2 WLR at 703 at 717A.  He further submitted that Hooper J had mis-directed himself in concluding that the public interest required the allegations to be “fully investigated”, as the s4A procedure does not provide for such a full investigation.  A nineteen-count indictment involving sixteen complainants, resulting in a trial for several weeks, when an absolute discharge was the probable disposal was inappropriate.  The prosecution should have been limited to sample counts, failing which the judge should have stayed the proceedings.  He referred to Humphrys [1997] AC 1 at 46E, R v Horseferry Road Magistrates Court ex parte Bennett [1994] AC 42 at 61E and 74G, Mullen [1999] 2 Cr App R 143 and Togher & Others [2001] 1 Cr App R 457.  He accepted that, in the light of McCann [1992] Cr App R 239 at 251, this court would be slow to interfere with the judge’s exercise of discretion if exercised on correct principles.  But, he submitted, the judge was wrong in law in concluding that there was any public interest element in having the matters fully investigated.  Furthermore, Mr Smith submitted that the allegations could never be fully investigated, because of the defendant’s inability to participate in the process, instruct lawyers and give evidence.  In consequence, he submitted, these being criminal proceedings within Article 6.1, there were  breaches of the defendant’s right to participate under Article 6.1, of the presumption of innocence under Article 6.2 and of the equality of arms provisions of Article 6.3(d).  s4A cannot, he submitted, be read and given effect in a manner which is compatible with Articles 6.1, 6.2 and 6.3(d).  He referred to V & T v United Kingdom [2000] Crim LR 187 ECHR (judgments 16th December 1999)  Minnelli v Switzerland 5 EHRR 554, Neumeister v Austria [1968] 1 EHRR 91 and Delcourt v Belgium [1971] 1 EHRR 355 at paragraph 25.  Alternatively, it can only be read and given effect in a manner compatible with Article 6 if its scope is confined to the protection of the public and the imposition of appropriate orders for temporary or permanent psychiatric disposal and not as a means to wider investigation of culpability.  Hooper J recognised and accepted that the prosecution would normally not proceed where there was no element of danger to the public:  he was accordingly wrong to refuse a stay when, on these facts, involving the complex trial of an elderly man and with many witnesses and documents, a stay should have been ordered.  Mr Smith conceded that, if the trial had been limited to, say, six counts, it would have been very difficult to make the same submission because such a course could no longer be seen as oppressive.  In the circumstances, however, he invited this court to substitute its judgment for that of Hooper J (which HHJ Myerson QC regarded as binding on him) and to quash the s4A findings on the basis that those proceedings should have been stayed.  Mr Smith accepted that his submissions based on the Human Rights Act are difficult, because all the authorities make clear that s4A proceedings do not give rise to a criminal conviction and the perception of the proceedings as criminal cannot convert their nature.  But, he submitted, indecent assault is a crime of basic intent, and if the prosecution prove the fact of non-consensual insertion of fingers into the vagina, the only remaining mens rea to be proved is whether the accused intended to commit the assault.  He referred to Court [1989] 1 AC 28.  The jury’s finding was, he submitted, for all practical purposes a finding of  the commission of the criminal offence.  The words “shall be determined by a jury” in s4A are, he submitted, procedural not mandatory.
13.	For the Crown, Mr Paul Worsley QC submitted that the words of s4A are mandatory and once s4 has been invoked there is no jurisdiction to stay:  he accepted his responsibility for not having made any such submissions in the court below.  Further, he submitted, the purpose of ss4 and 4A is not solely to impose an order for the protection of the public.  A defendant may be acquitted and an order for an absolute discharge, although it may serve the interest of the defendant, does not protect the public.  There is, therefore, a public interest in requiring complaints to be heard.  An absolute discharge was not the inevitable disposal of the case because, in June 2000, it was not possible to decide what would be appropriate in December 2000, any more than it would be appropriate to second-guess the jury’s verdict, as the variety of verdicts in the present case demonstrates.  He submitted that Mr Smith’s concession that it would not be oppressive or abusive if the Crown had proceeded with six counts rather than nineteen was fatal to his argument, for the defendant would be unable to attend and give evidence whether there were six or nineteen.  As to the Human Rights submission, Mr Worsley submitted that Article 6 has no application because s4A proceedings are not criminal.  Alternatively, if the proceedings are criminal, the statutory procedure provides the necessary right of access to the court and procedural fairness for a person with the defendant’s disabilities.  He submitted that no question of incompatibility arises.  Victims as well as defendants have rights and the judge was correct to carry out a balancing exercise having regard to the public interest in a hearing.  He referred to Brown & Stott [2001] 2 WLR 817 and the speeches of Lord Bingham at 836, Lord Steyn at 840B and Lord Hope at 850D.  Article 5 of the Convention recognises the need for a State to make provision for persons of unsound mind and ss4 and 4A provide  means for safeguarding the defendant’s position and liberty, preventing a verdict of guilty being returned and any punishment being imposed upon him, whilst balancing the interests of the victim and society.  
14.	On behalf of H, Mr Wright submitted that the proceedings were criminal and therefore Article 6 applied.  The perception of s4A is that it deals with a criminal offence and a finding that the facts were proved (in this case  the appellant trying to put his penis into the complainant’s mouth) would carry the same stigma as a criminal conviction.  The Rehabilitation of Offenders Act 1974 treats as a conviction a finding under s4A that an act has been committed.  Mr Wright adopted Mr Smith's submissions in relation to the unfairness of trying someone under such a disability.  H was only fourteen when the jury found he committed the acts yet, because he was unfit to plead, he was denied the right to rely on Article 6, despite increased vulnerability arising from his youth.  The Practice Direction in relation to children [2001] 1 Cr App R 483 had only been partly followed, in that H was permitted to sit behind his counsel, but robes and wigs were not dispensed with.  
15.	Mr Worsley QC for the Crown submitted that the deeming provision in the Rehabilitation of Offenders Act did not turn a s4A finding into a conviction, but simply ensured that a defendant against whom such a finding was made was in no worse position than if he had been convicted of crime.  No perception that a criminal offence has been committed can properly arise from a s4A finding and the appellant’s age puts him in no better or worse position than an adult, namely,  by reason of his mental handicap, he cannot participate in the proceedings.  The Practice Direction relates only to criminal trials.  But, in any event, no criticism is here made that the trial of this appellant was unfair.
16.	As to M, Miss Nabijou stressed that the applicant is of good character and had no means of defending himself or giving instructions.  Submissions were made to the trial judge after the finding of unfitness to plead and it was not suggested that this was an inappropriate course.  She submitted that any abuse hearing has to be after the finding of the first jury and before the second jury determines whether acts were committed.  She submitted that s4A proceedings are criminal by reference to the title of the 1964 Act, the stigma attached to a finding and the consequences: these, she submitted, are identical to the consequences of a criminal conviction because loss of liberty may occur, albeit in a secure mental hospital.  She submitted that there is here a right of appeal under s35 of the Criminal Procedure and Investigations Act 1996 because the judge’s ruling related to the management of the trial. She sought to distinguish Gunawardena 91 Cr App R 55on the basis that it was a fraud case.  She made a substantial number of other submissions orally and in writing which it is unnecessary to rehearse.  
17.	So far as M is concerned, the circumstances in which an interlocutory appeal, that is prior to conviction, can be brought to this court are limited to those identified in sections 29 to 35 of the Criminal Procedure and Investigations Act 1996.  Although Rougier J was understandably anxious to facilitate an appeal if he could and, to that extent, was prepared to declare that a preparatory hearing was being held, it is, in our judgment, plain that neither the trial judge nor this court can confer on this court a jurisdiction which it does not have. As the judge himself pointed out, the words in s29(1) that the indictment “reveals a case of such complexity or a case whose trial is likely to be of such length” did not apply.  No preparatory hearing within the 1996 Act had been ordered by the judge. His ex post facto declaration of a preparatory hearing was, in our judgment, a nullity.  Furthermore there is, in our judgment, no scope under the 1996 Act for the holding of a preparatory hearing prior to a s4A trial.  The Act applies to trials on indictment for criminal offences.  S4A hearings are not trials on indictment.   In any event, as the judge’s ruling related to abuse of process, not a point of law, it was outwith the scope of the limited rights of interlocutory appeal conferred by the 1996 Act, which follows precisely the comparable provisions in relation to complex fraud cases which were under consideration in Gunawardena.  Even if there were a right to appeal, we would refuse leave, having regard to the considerations to which we now turn in relation to the application of K and the appeal of H.
18.	So far as the submissions based on the European Convention on Human Rights and the Human Rights Act are concerned, we see no incompatibility between the provisions of ss4 and 4A of the Criminal Procedure (Insanity) Act 1964 and a defendant’s Convention rights.  Article 5 of the Convention expressly contemplates special provisions in relation to those of unsound mind in relation to deprivation of liberty and, in Winter v Netherlands 2 EHRR 387, the European Court of Justice recognised there may be qualifications upon the right to participate under Article 6.1.  
19.	In our judgment, the criminal charge provisions of Article 6 do not apply to proceedings which cannot result in a conviction.  The object of the Convention is to protect the citizen against abuse of his rights by the State.  The protection afforded by Article 6 is unnecessary if the proceedings in question cannot lead to the conviction and punishment of the accused.  A procedure that can lead only to an acquittal of a criminal charge is not within  Article 6.  Consistently with this approach, as Mr Smith accepted, an application for, and the consideration by the Attorney General of, anolle prosequi is not within Article 6, even though it would bring criminal proceedings to an end.  The same must apply to a pardon.  We find some support for this approach in that, as mentioned below, the European Court of Human Rights has never held proceedings to be criminal if they cannot result in the imposition of a penalty.  Proceedings that can only result in an acquittal cannot result in a penalty.  If, therefore, proceedings under ss4 and 4A are to be held to be criminal, it must be for some reason other than that an acquittal may result from them. 
20.	Proceedings under section 4 determine whether the accused is fit to plead, not any criminal charge.  Indeed, the practice (which was followed in the case of Dr K) is not to inform the jury trying this issue what criminal charges the accused faces, since that information is irrelevant to the issue they have to determine.  In proceedings under section 4A, if an accused is found to have committed the act,  the verdict is not one of guilty, but a finding that he did the act or made the omission charged against him: see section 4A(3)(b) and section 5(1)(b).  The finding of a jury that an accused person has committed the act  lacks a finding as to intent.  It cannot, therefore, be a finding of guilt of the offence.  Expressions such as “guilty” and “convicted” are noticeably absent from these provisions.  Significantly, if an accused is found to be unfit and to have committed the act charged against him, and subsequently recovers, he may be tried for the criminal offence in question: see paragraph 4 of Schedule 1 to the 1991 Act.  As was held in R v Antoine (above), once it has been determined under section 4(5) that the accused person is under a disability, the trial terminates and he is no longer liable to be convicted.
21.	Furthermore, the orders available to the Court under section 5(2) 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.  Thus, paragraph 2 of Schedule 2 to the 1991 Act, to which s5(2)(b) refers, requires a Court considering the making of a supervision and treatment order to be satisfied that such an order is “the most suitable means for dealing with the accused or appellant”.  Such an order must include a requirement that the supervised person shall submit to treatment with a view to the improvement of his mental condition: paragraph 4 of Schedule 2.  The meaning in this context of an absolute discharge is instructive.  Section 5(4) of the 1991 Act is as follows:
“Section 1A(1) of the Powers of Criminal courts Act 1973 shall have effect, in its application to orders for absolute discharge, as if-
(a) the reference to a person being convicted by or before a court of such an offence as is there mentioned included such references as are mentioned in subsection (2)(a) and (b) above; and
(b) the reference to the court being of opinion that it is inexpedient to inflict punishment included a reference to it thinking that an order for absolute discharge would be most suitable in all the circumstances of the case.”
The references mentioned in subsection (2)(a) and (b) are:

“(a) to a special verdict being returned that the accused is not guilty by reason of insanity, or to findings being recorded that the accused is under a disability and that he did the act or made the omission charged against him; and
(b) to the Court of Appeal being, on an appeal against conviction or under section 12 of the 1968 Act, of such opinion as is mentioned in section 6(1) or 14(1) of that Act”.
In other words, an order for absolute discharge does not imply either conviction or that punishment is inexpedient: it implies a finding that the accused did the act in question  and that an absolute discharge is the most suitable order.
22.	It is correct that proceedings under sections 4 and 4A  may result in the loss of liberty of the accused, as a result of an order being made for his admission to hospital.  However, criminal proceedings are not the only proceedings permitted by the Convention that may result in a loss of liberty.  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 5.1.  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. 
23.	The Strasbourg jurisprudence as to the meaning of  “criminal charge” in Article 6 was recently reviewed by the Court of Appeal in R (McCann) v Manchester Crown Court [2001] 1 WLR 1084.  At paragraph 52 of his judgment, Lord Phillips MR referred to the decision of the European Court of Human Rights in Engel v The Netherlands (No1)  [1976] 1 EHRR 647, which “identified the three principal criteria which it has become the European Court’s practice to consider when deciding whether proceedings have a criminal character: (1) the manner in which the domestic state classifies the proceedings; (2) the nature of the offence; and (3) the character of the penalty to which the proceedings may give rise.”  He referred with agreement to Lord Bingham CJ’s statement in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 353, at paragraph 28:
“I am aware of 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.”
24.	In the present cases, English law does not classify the proceedings as involving the determination of a criminal charge.  In addition, there is no penalty imposed on the accused, and this may be regarded as a decisive factor. Mr Smith relied on the statement of the European Court in Engel that:
“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.”
However, the key words in the present connection are “liable to be imposed as a punishment”, a factor absent from proceedings under sections 4 and 4A.
25.	Consistently with this, in R v Southwark Crown Court ex p Koncar [1998] 1 Cr App R 321, a person found unfit to plead and to have done the act constituting a summary offence was held not to be “an offender” within the meaning of section 40(3) of the Criminal Justice Act 1988.
26.	Lastly, although proceedings under section 4A involve the determination of facts which may constitute a criminal offence, this, in our judgment, is irrelevant.  Civil and disciplinary proceedings often involve allegations that a person has committed acts which constitute a criminal offence.  That does not transform such proceedings into criminal proceedings.  In R v Secretary of State for the Home Department, ex p Sunder [2001] EWHC Administrative 252, [2001] All ER (D) 55 it was contended that Article 6 applied to the recategorisation of a prisoner serving a mandatory life sentence, on the basis that the grounds for his recategorisation included the allegation that he had committed a serious criminal offence.  Stanley Burnton J said, at paragraph 24: 
“The fact that the matters taken into account by a Category A Review Committee constitute a criminal offence does not necessarily mean that their procedures and decisions constitute the determination of a criminal charge for the purposes of Article 6, any more than an argument between a driver and his insurance company as to the former’s responsibility for a collision involves the determination of a charge of careless driving: c.f. McFeeley v UK [1980] 3 EHRR 161 and Pelle v France [1986] 50 DR 263.  In the latter case the Commission held that a disciplinary sanction imposed on a prisoner for making a death threat against a warder, involving a period in a punishment cell and the risk of loss of remission, was outside the scope of Article 6.”
We agree with these observations.  They are in conformity with the conclusion of the Civil Division of the Court of Appeal, in R(Carroll) v SSHD  The Times 16th August 2001, that prison disciplinary proceedings are not criminal within Article 6.
27.	In our judgment, therefore, Article 6 does not apply to proceedings under sections 4 and 4A of the 1964 Act.   
28.	We shall, however, consider whether, if we are wrong on this point, the proceedings under those provisions comply with the requirements of Article 6.
29.	The submission is that a person who is unfit to plead cannot have the fair trial required by Article 6.  He cannot sufficiently understand the proceedings, or give proper instructions, and he may be unable to give evidence.  He has not the rights guaranteed by Article 6.3.  The elements of “equality of arms”, it is submitted, are noticeably lacking.  Furthermore, Mr Smith submitted that the fact that Dr K was unable to give evidence  deprived him of the presumption of innocence.
30.	It is  not submitted that the proceedings under sections 4 and 4A do not involve a public hearing by an independent and impartial tribunal established by law, as required by Article 6.1.  It is not suggested that, if the defendants were mentally able fully to participate in the proceedings, the resultant hearings would not be “fair”, or that the requirements of Article 6.3 would not be complied with.  It is not suggested that there is or could be any alternative procedure which would be “fair” or which could comply with Article 6.3.  The effect of these submissions is that a trial of a criminal charge against a person who is unable to plead can never comply with Article 6.  It seems to us that, if this is so in relation to the trial of a criminal charge, it is equally so in relation to the determination of civil rights and obligations.  If correct, therefore, these submissions have important implications for those who may have to pursue civil claims (such as claims for the recovery of debts or of property) against persons who become seriously mentally disabled.
31.	In our judgment, these submissions confuse the rights assured by Article 6 with the enjoyment of those rights.  The State can only assure rights to its citizens: it cannot ensure that all its citizens are able, in practice, to use those rights.  Persons under mental disabilities, whose condition does not prevent their being fit to plead to a criminal charge, may well be under a disadvantage in legal proceedings, whether civil or criminal.  The Court should do its best to minimise that disadvantage, but it may be unable to remove it totally.  A trial in civil or criminal proceedings where that disadvantage has been minimised can be “fair”.
32.	Reliance was placed on the decision of the European Court of Human Rights in T v UK and V v UK [2000] Crim LR 187.  However, that was a case in which the state had failed to minimise the disadvantages of young persons in criminal proceedings.  On analysis, that decision is inconsistent with the submissions made to us.  Young persons of the age of V and T are undoubtedly at a disadvantage in a criminal trial as compared to ordinary adults.  However, the Court did not suggest that a trial of such young persons complying with Article 6 is impossible.  In our judgment, the crux of that decision is to be found in paragraph 87 of the judgment in V (paragraph 85 of the judgment in T):
“It follows that, in respect of a young child charged with a grave offence attracting high levels of media and public interest, it would be necessary to conduct the hearing in such a way as to reduce as far as possible his or her feelings of intimidation and inhibition.”
The italics are ours.  The Court found that the proceedings against T and V had not been conducted so as to reduce as far as possible their feelings of intimidation and inhibitions, and that, consequently, they had been denied a fair hearing.  In contrast, as mentioned above,  in the present cases it is accepted that, if the defence submissions are well founded, a fair trial of the charges is impossible.
33.	While the right to a fair hearing is absolute, T v UK and V v UK show that the content of that right varies.  What is a fair hearing for a normal adult may not be a fair hearing for a young child.  In Brown v Stott [2001] 2 WLR 817, Lord Bingham said, at 836:
“The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute.  Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.  The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances.  But this approach has been consistently eschewed by the court throughout its history.  The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree.  Ex facto oritur jus.  The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lonnroth v Sweden [1982] 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52.”
We can also conveniently borrow the citations in the judgment of the Right Hon. Ian Kirkwood at 862:
“In Soering v United Kingdom [1989] 11 EHRR 439 the European Court observed as follows, at p 468, para 89: ‘Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.’ 
In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 384 Lord Hope of Craighead stated: 
‘There is also the question of balance, as to the interests of the individual as against those of society.  The Convention jurisprudence and that which is to be found from cases decided in other jurisdictions suggests that account may legitimately be taken, in striking the right balance, of the problems which the legislation was designed to address ...  As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual: see also Sporrong and Lonnroth v Sweden [1982] 5 EHRR 35, 52, para 69.’”
See too the judgment of Lord Steyn at 840C.
34.	The object of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which introduced the present procedures in relation to the trial of those unfit to plead and amended the 1964 Act into the form set out in paragraph 9 above, was to protect  accused persons  under a disability.  It was passed as a result of the case of Valerie Hodgson, who had confessed to the murder of her father, had been found unfit to plead and, without any investigation of the facts in any hearing, had been committed to prison, and subsequently, to a secure hospital.  It was later found that she had not committed the act of murder.  Sections 4 and 4A, in our view, constitute a fair procedure, providing an opportunity for investigation of the facts on behalf of a disabled person, so far as is possible.  In our judgment, it fairly balances the public interest both in ascertaining whether acts have been committed  and in identifying and treating, or otherwise dealing with, persons who have committed the acts, and the interests of those persons.  If Article 6 applies, it has not been infringed in any of the cases before us.
35.	As to the refusal of Hooper J and HHJ Adams to order a stay, the court has, of course, an inherent power to suppress abuses of process and a right in its discretion to decline to hear proceedings on the ground that they are oppressive.  (see R v Telford Justices ex parte Badhan [1991] 2 QB 78, Connelly v DPP [1964] AC1254 and Humphrys [1977] AC 1) at least in so far as the power is not plainly contrary to the intention of parliament.
36.	There is, in our judgment, no reason why an application to stay for abuse should not be made before determination of the question of fitness to plead.  The words “shall be determined” in ss4(4) and (5) only come to bear “where on the trial of a person the question (of disability) arises” (see s4(1)) and the defence can therefore make an abuse application as soon as the case comes on, before arraignment, and before any question of disability falls to be determined.  This is consistent with the power to delay the issue under s4(2).  Once the question of disability has been decided under s4, ss4A(1)(2)  provides that, where a jury has determined that the accused is under a disability, “it shall be determined by a jury” whether the defendant has committed the acts or omissions.  However, if,  as was held in ex parte Badhan,  there can be a plea in bar despite the mandatory wording of s6(1) of the Magistrates Courts Act 1980 and there can, as we have held, be an abuse application before embarking on the s4 proceedings, there is, in our judgment, no reason in principle why application that the proceedings against the defendant should never have been entertained by the court should not be made at any stage.  The ability of the court to entertain such an application retrospectively or raise the question of its own initiative, would, again, chime harmoniously with the provisions of s4(2) relating to postponement of the question of disability.  It would also make good sense where, for instance, oppressive conduct by the prosecution,  which may justify a stay, comes to light only after a s4(5) finding of disability.  In such circumstances, an application to stay could, in our view, properly be made between the s4 and s4A stages and we are not persuaded that the apparently mandatory terms of s4A(2), which must be construed in the context of the unfitness to plead procedures themselves, preclude such a course.
37.	However, the defendant’s disability, or matters related to it, cannot, in our judgment, in themselves found a successful abuse application.  This would avoid the whole point of ss4 and 4A, as both HHJ Adams in H and Rougier J in M pointed out.  (See also per Lord Bingham in Antoine [1999] 2 Cr App R 225 at 235).  An abuse application, whenever made, must be founded on matters independent of the defendant’s disability, such as oppressive behaviour of the Crown or agencies of the State, or circumstances or conduct which would deprive the defendant of a fair trial e.g. destruction of vital records during a long period of delay, or an earlier assurance that he would not be prosecuted.  
38.	Accordingly,  K’s personal circumstances and conditions,  the likelihood of an absolute discharge, and the lack of risk to the public are, in our view, irrelevant to the question of stay for abuse.  Nor, in our judgment, is it appropriate, in relation to the ss4 and 4A procedure, to conduct a balancing exercise as Hooper J did, taking account of the public interest in having serious allegations against medical practitioners investigated and hearing the complainant’s allegations investigated in a public forum.  All these factors are, no doubt, matters for the CPS to consider when deciding whether to prosecute in the first place, or to pursue a prosecution, once started.  The public interest in having serious allegations investigated is a factor behind the general principle that the power to order a stay should be exercised sparingly, even where there are proper, i.e. non-disability related, grounds.  For the reasons which we have given, even had Hooper J approached the matter as, in our judgment, he should, the outcome in K’s case could not have been different, for there was no ground on which a stay could properly have been ordered.  We therefore refuse his application for leave to appeal.
39.	HHJ Adams in our view approached the matter impeccably.  In relation to abuse he disregarded the disability points as to age and mental handicap, but he entertained the points as to failure to investigate before finding that they had no merit in the particular circumstances of the case.  Accordingly H’s appeal is dismissed.

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THE VICE PRESIDENT:  For the benefit of the shorthand writer, there are two further corrections to the judgment in its present form, paragraph 7, line 3 should read "preliminary" rather than "preparatory".  Paragraph 18, the name of the case is Winter Werp not just Werp. Subject to that, for the reasons given in the judgment handed down of which Bell J, who is not able to be here today, agrees, there is no jurisdiction to entertain an appeal by M and in any event we would have refused him leave to appeal. K's application for leave to appeal is refused and H's appeal is dismissed.
MR SMITH:  May I simply tell your Lordship Mr Rose and myself are here out of courtesy to your Lordship to assist in any way. The Court having refused leave, there is no further application that we can make in the circumstances.
THE VICE PRESIDENT:  We thought that might be so Mr Smith although we are grateful for the formulation of the question which has reached us.
MR SMITH:  It may assist Mr Wright and I pose the document in his hands, the formulation of the point lies now with him.
Mr WRIGHT:  I am grateful to my learned friend, Mr Smith, for formulating the point and I adopt it.  I would invite your Lordships to certify that point as  being one of general public importance. I invite your Lordships to consider granting leave to appeal to their Lordships' house.
THE VICE PRESIDENT:  Mr Lofthouse, you are for the Crown.
MR LOFTHOUSE:  In M not in H, I better say.
MR WRIGHT:  My learned friend Mr Malcolm Taylor appears for the Crown.
THE VICE PRESIDENT:  Well, do you have anything to say about the certified questions?
MR LOFTHOUSE: No my Lord.
THE VICE PRESIDENT:  We shall certify that question and we refuse leave.  Thank you.
MR LOFTHOUSE:  I have been asked by the law reporter to seek your Lordships' guidance on one matter concerning the reporting on the case of M.  She is concerned that there are automatic reporting restrictions under the 1996 Act in respect of preparatory hearings.  It raises a circular argument, I suppose, as to whether your Lordships held there was not one, the reporting restrictions apply. Your Lordships could in any event impose one. My learned friend, Miss Navijou, and I have spoken about the matter. I think the position is we, subject to your Lordships' view of the matter, will be content so long as initials were used.  But there may be  other things that my learned friend preferred not to be mentioned but in principle there is no objection to the reporting of the case in the law reports.
THE VICE PRESIDENT:  Miss Navijou.
MISS NAVIJOU:  I endorse what was said.
THE VICE PRESIDENT:  In view of what counsel have said we shall direct that this case can be reported but so far as M is concerned, he should be referred to simply by the initial M.
MR LOFTHOUSE:  The other matter, I am grateful to your Lordship in respect of the amendment on page 4. My Lords that I think came from my observation.  My Lord, probably the text I sent is badly written. It was the other way round, I was inviting the Court to substitute, cross out "preliminary" in line 18 and insert  "preparatory", I am sorry.
THE VICE PRESIDENT:  Let us get it right even at this stage Mr Lofthouse.  The two references in lines 17 and 18, on page 4, of paragraph 7, "to preparatory" or "to preliminary"?
MR LOFTHOUSE:  "Preparatory".
THE VICE PRESIDENT:  Then they will be.
MR LOFTHOUSE:  I am sorry.