The detention of the claimant under a hospital order was lawful as a matter of domestic law, albeit that the order was irregular in that the Crown Court had no power to make it, and there was no breach of Art.5 European Convention on Human Rights 1950.Application for judicial review of an order made at Harrow Crown Court on 11 September 2002 under the Mental Health Act 1983. The claimant sought: (i) an order quashing the Crown Court order; (ii) an order requiring the Crown Court to amend its records; and (iii) a declaration that his detention resulting from the order infringed his rights under Art.5 European Convention on Human Rights. The claimant had been charged with two counts (counts one and two) of causing grievous bodily harm with intent and one count of affray, and was committed to Harrow Crown Court for trial. Psychiatric reports were obtained from consultants who were of the opinion that the claimant was unfit to plead and stand trial, and, pursuant to s.4 Criminal Procedure (Insanity) Act 1964, the jury found that the claimant was under a disability and unfit to plead. A jury was empanelled to determine whether the claimant had in fact done the acts charged, and HH Judge Bailey ordered that count two be reduced to a charge of assault occasioning actual bodily harm. On 26 June 2002, the jury determined that the claimant had done the act charged in count two, but that he had not done the acts charged in counts one or three. At a hearing on 11 September 2002, HH Judge Bailey made a hospital order under s.37 of the 1983 Act and a restriction order under s.41 of that Act. The claimant argued that by reason of the order made on 11 September 2002, which was not a lawful order, his rights under Art.5 of the Convention had been infringed as he had been deprived of his liberty "otherwise than in accordance a procedure prescribed by law". The defendant and first interested party argued that the procedure leading to the order of 11 September 2002 was one "prescribed by law", and that the claimant's detention was lawful within Art.5 as that Article focused on the lawfulness of the detention rather than on the lawfulness of the order from which the detention resulted.HELD: (1) The order of 11 September 2002 was one that the Crown Court had no power to make, as an order under s.37 of the 1983 Act may only be made if a person is convicted of an offence. The order was quashed and it was ordered the court records be brought in line with the legal position. (2) The requirement of Art.5(1) that the procedure should be "prescribed by law" referred to the substantial requirements of a fair procedure. Errors in what was said by counsel or a judge would not, of themselves, result in a procedure being unlawful. In the instant case, there was no breach of any fundamental procedural requirement. The evidence before the court justified the detention, and the procedure leading up to the order was a procedure prescribed by law. (3) The order made on 11 September 2002 was legally effective unless and until set aside. The consequential detention of the claimant was lawful as a matter of domestic law, albeit that the order was irregular. (4) On the basis of Benham v United Kingdom (1996) 22 EHRR 293, the claimant's detention would be "lawful" provided it was not arbitrary. The detention, which was based on a finding that the claimant had committed an act which constituted an assault occasioning actual bodily harm and on the necessity to detain him for medical treatment, was not arbitrary. (5) The finding in Tsirlis & Anor v Greece (1997) 25 EHRR 198 did not justify a similar conclusion in the present case. There was no infringement of the claimant's Art.5 rights.Judgment accordingly.

[2003] EWHC 2020 (Admin)

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