ANTOINE v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Pierre Harrison Antoine, is a United Kingdom national, born in 1979 and detained in Bexley Hospital. He is represented before the Court by Kaim Todner Solicitors, lawyers practising in the United Kingdom. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, then aged 16 years, was arrested on 3 December 1995, together with another youth D. aged 17 years in connection with the murder of Michael Earridge, aged 15. The applicant was interviewed in police custody over a period of three days. He admitted being present on the premises where the killing had taken place but denied having taken an active part. He said that he left the room on two occasions and when he returned the second time, he saw D. stabbing Michael Earridge. D. was charged with murder on 4 December 1995, the applicant on 5 December 1995. The prosecution case was that the two had acted in furtherance of a joint enterprise and that the murder had been committed as an act of sacrifice to the devil. It was alleged that D. had plunged a knife into Michael Earridge’s chest in the presence of the applicant after the applicant had prevented the victim from leaving and had struck him. The applicant and D. were committed for trial to Inner London Crown Court on an indictment charging them with murder and, in the alternative, manslaughter. His co-accused, D., entered a guilty plea to manslaughter by reason of diminished responsibility. After consideration of medical reports, the plea was accepted by the Crown and D. was sentenced to committal to hospital under a hospital order subject to a restriction order without limit of time under sections 37 and 41 of the Mental Health Act 1983. The applicant appeared before the Crown Court on 13 March 1997. The evidence of three psychiatrists who had examined the applicant was that he was suffering from paranoid schizophrenia. Counsel acting on the applicant’s behalf submitted that the applicant was unfit to plead or to stand trial by reason of his mental disability. On 18 March 1997, evidence was heard before the jury from three psychiatrists (two for the defence and one for the prosecution). The trial judge, with the support of both counsel for the prosecution and for the defence, directed the jury to find that the applicant was unfit to plead or stand trial. This finding was in accordance with the R v. Pritchard case ([1836] 7 C & P 303), on the basis that the applicant was unable to instruct his legal representatives to plead to the indictment, to challenge jurors, to understand the evidence or to give evidence in his own defence. Following this finding, and in accordance with section 4A of the Criminal Procedure (Insanity) Act 1964 (the “1964 Act”), a second jury was empanelled in order to determine whether the applicant ‘did the act or made the omission charged against him’ (a “section 4A hearing”). On 19 March 1997, counsel for the applicant submitted that the applicant should be entitled to raise the issue of diminished responsibility during the section 4A hearing. The judge made two rulings: firstly, that in order to prove that the applicant had committed the act, the prosecution must prove both the actus reus and the mens rea and, secondly, that diminished responsibility could not be raised in a section 4A hearing. On 2 June 1997, the jury heard evidence concerning the events surrounding the killing, including the applicant’s interviews. The case followed the adversarial procedure of a criminal trial, with evidence being called by each side and subjected to cross-examination, closing speeches and a summing up to the jury. At the conclusion of the evidence, the second jury were satisfied that the applicant had committed the necessary act, and the judge thereupon made an order under the provisions of section 5 of the 1964 Act that the applicant be committed to hospital without limit of time. On 19 April 1999, the applicant was granted leave to appeal. On 29 April 1999, the Court of Appeal dismissed the appeal but certified that the case raised a point of law of general public importance, namely, whether it was open to a person found unfit to plead, and who was subject to a trial of the facts on a charge of murder under section 4A, to raise the defence of diminished responsibility. The House of Lords granted leave to appeal on 26 July 1999. On 30 March 2000 the House of Lords ruled that the prosecution only had to prove the actus reus and not the mens rea in a section 4A hearing. The only time when mens rea might become relevant would be where there is “objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the act unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence”. Their Lordships also ruled that the statutory defence of diminished responsibility could not be raised in a section 4A hearing. This decision was taken principally because of the effect of the wording of section 2 of the Homicide Act 1957, which established this statutory defence as being available only as an alternative to a liability for murder. Once unfitness to plead has been determined, the trial cannot proceed, the defendant can no longer be ‘liable to be convicted of murder’, and that defence is no longer available. Lord Hutton, in giving the leading judgment, commented: “The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or has made an omission) which would constitute a crime if done (or made) with the requisite mens rea.” The criminal proceedings are currently stayed against the applicant indefinitely, and the Crown Prosecution Service has indicated in this case an intention to revive the proceedings if, at any time in the future, the applicant should recover. A jury cannot make a determination that a defendant is unfit to be tried “except on the written or oral evidence of two or more registered medical practitioners” (section 4(6) of the Criminal Procedure (Insanity) Act 1964). The test for the jury is whether the defendant is able to plead to the indictment, whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he might wish to object, and to understand the details of the evidence (R. v. Pritchard [1836] 7 C. & P. 303). On a finding of unfitness to plead “the trial shall not proceed” (section 4A(2)), and a further jury must be empanelled to determine “whether they are satisfied, as respects the count or each of the counts on which the accused was to be tried, that he did the act or made the omission charged against him as the offence” (section 4A(2)). If they are so satisfied, then “they shall make a finding that the accused did the act or made the omission charged against him” (section 4A(3)). If they are not so satisfied “they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion” (section 4A(4)). The burden of proof is on the prosecution and, in order to prove that the defendant was guilty of doing the act charged, the prosecution must prove their case beyond reasonable doubt. A finding under this procedure is not a finding of guilt (R. v. Southwark Crown Court ex parte Koncar [1998] 1 Cr.App.R. 321, DC). Under section 5, if the accused is found unfit to plead and the jury determines that he did the act or made the omission charged, then the court may make one of the following orders: (a) an admission order to such hospital as the Secretary of State specifies; (b) a guardianship order under the Mental Health Act 1983; (c) a supervision and treatment order; or (d) an order for the accused’s absolute discharge. Where however the offence to which the finding relates is murder, then the court must make an admission order together with an order restricting his discharge without limitation of time. If the jury are not satisfied that the accused did the act or made the omission charged they must return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion (section 4A(4)). If, while a person is detained under an admission order, the Secretary of State is satisfied that he can be properly tried, he may remit the person for trial (Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, paragraph 4(1)). Following the decision in the applicant’s case and the entry into force of the Human Rights Act 1998, the Court of Appeal gave leave to appeal to the House of Lords in the case of R. v. H. and the Secretary of the Home Department, certifying as a point of law of general public importance the question whether the section 4A procedure was compatible with an accused’s rights under Article 6 §§ 1, 2 and 3(d) of the Convention. In the House of Lords judgment of 30 January 2003, Lord Bingham endorsed the views expressed in the applicant’s case by Lord Hutton (see above) and referring to the Engel v. the Netherlands case (judgment of 8 June 1976, Series A no. 22) in considering whether the section 4A procedure fell within the scope of Article 6 of the Convention, held, inter alia: “16. It is first necessary to know how the issue is classified in domestic law. This test is far from decisive and rightly so, since the Convention seeks the achievement of broadly equivalent standards among the member states of the Council of Europe and such aim would be defeated if domestic rules were determinative. But this is the starting point, and it is clear that the domestic law of England and Wales does not treat the section 4A procedure as involving the determination of a criminal charge. When a finding of unfitness is made it is provided that the trial (meaning the criminal trial) “shall not proceed or further proceed”. Section 4A(2) is expressed in terms which make it clear that the task of the jury is not that carried out by a jury in a criminal trial: ... the jury have the power to acquit but they have none to convict. The jury take an oath different from that in a criminal trial. There can be no verdict of guilty. There can be no punishment. In a case such as the present, as the legislation has been amended to make clear, an order of absolute discharge may be made in the absence of any conviction and without consideration of the expediency of punishment. It is true that by virtue of section 1(4)b of the Rehabilitation of Offenders Act 1974 references in that Act to a conviction are expressed to include reference to a finding that a person has done the act or made the omission charged, but this was an Act designed to promote the rehabilitation of offenders by enabling them to live down past convictions and the obvious purpose of this provision was to give persons subject to adverse findings under section 4A the benefit of that protection. It is also true that a person found to have done the act or made the omission charged is subject, by virtue of section 1(1)b of the Sex Offenders Act 1997, to the notification requirements of that Act. But I regard it as clear, as a matter of domestic law, that this provision is designed to protect the public and not to punish the subject of the order. The non-punitive nature of the order was recognised by the Commission in Ibbotson v. the United Kingdom (1998) 27 EHRR CD 332. The registration order is analogous to a sex offender order or an anti-social behaviour order ... 17. The second Engel test, and that on which the appellant’s argument depended, directed attention to the very nature of the offence. ... 18. It would be highly anomalous if section 4A, introduced by amendment for the protection of those unable through mental unfitness to defend themselves at trial, were itself to be held incompatible with the Convention. It is very much in the interest of such persons that the basic facts relied on against them (shorn of issues concerning consent) should be formally and public investigated in open court with counsel appointed to represent the interests of the person accused so far as possible in the circumstances. The position of accused persons would certainly not be improved if section 4A were abrogated. In my opinion, however, the argument is plainly bad in law. Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the section 4A procedure is not to decide whether the accused person committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment. Even an adverse finding may lead, as here, to an absolute discharge. But if an adverse finding leads to the making of a hospital order, there is no bar to a full criminal trial if the accused person recovers, an obviously objectionable outcome if the person has already been convicted. ... 19. ... [As regarded the third Engel test] Mr Smith for the appellant accepted that he could not rely on this test, because he accepted that the orders which the court could make on a finding by the jury adverse to the accused under section 4A were none of them punitive. But the fact that the procedure cannot culminate in any penalty is not neutral. The House was referred to no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. It is, indeed, difficult if not impossible to conceive of a criminal proceeding which cannot in any circumstances culminate in the imposition of any penalty, since it is the purpose of the criminal law to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society to merit the imposition of penal sanctions.” Section 2 provides for a defence of diminished responsibility to a charge of murder: “(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind ... as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. ... (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. (3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.”