The High Court found that an anonymised man detained at the Central Mental Hospital was not in lawful custody, after concluding that the Central Criminal Court had not followed a required statutory procedure before ordering his committal. It directed that he be released under Article 40.4.2 of the Constitution, but adjourned the making of any order, including an order for release, pending further argument on the appropriate remedy.
The judgment, delivered by Mr Justice Hogan on 3 July 2012, concerned a man who had been found unfit to plead in criminal proceedings and committed to the hospital by the Central Criminal Court on 26 March 2012 under the Criminal Law (Insanity) Act 2006. The judge noted that the applicant had not been convicted. An order prohibited identification of the applicant and any member of his family.
Under the Act, the court was required to consider evidence from an approved medical officer adduced after an initial assessment process. The judge found that the Central Criminal Court had heard evidence from a medical officer before making its committal order, but had not completed that statutory process. Instead, what the legislation prescribed as a two-stage process had been compressed into one. The omission was apparent on the face of the committal order.
The judge held that the statutory safeguard was neither trivial nor peripheral, even though he considered it unlikely that compliance would have changed the outcome. He concluded that the detention became unlawful after the initial 14-day period. A subsequent review by the Mental Health (Criminal Law) Review Board had not made a further detention order, so it had not replaced the original court order as the legal basis for custody.
The judgment also addressed whether the High Court could hear an Article 40.4.2 application concerning a detention order made by another High Court judge sitting as the Central Criminal Court. Hogan J concluded that it could, while describing the jurisdiction as limited to checking whether the statutory limits of the power were met on the face of the order. He also held that the existence of an appeal route to the Court of Criminal Appeal did not bar this application, since the applicant had not been convicted.
Although Hogan J directed release, he did not make a final release order at that stage. He adjourned the making of any order pending further submissions, including on the applicant’s welfare and the possible implications of the ruling for other people. The judgment left those remedial questions for later argument.