User:Viennese Waltz/Koncar

R v Southwark Crown Court, ex p Koncar [1998] 1 Cr App Rep 321
The applicant, who suffered from mental illness, was arrested and charged with affray and common assault after attacking a police officer in the erroneous belief that the police officer had killed his girlfriend. After being committed for trial to the Crown Court, a jury determined that the applicant was a person under a disability in accordance with s 4 of the Criminal Procedure (Insanity) Act 1964, a second jury determined in accordance with s 4A of the 1964 Act that he had done the act of common assault but acquitted him of affray, and the judge then proceeded to make an admission order under s 5 of the 1964 Act and sched 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Following the making of the admission order the applicant was transferred from a hospital to a secure unit. The applicant applied for judicial review of the decision to make the admission order and for habeas corpus. It was argued that the judge had no power to make the admission order, on the basis that s 40(2) of the Criminal Justice Act 1988, only gave the Crown Court power to deal with the applicant in respect of the summary offence of common assault in the same way a magistrates' court could have done. Section 40(2) provided inter alia that, '… the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him.' Held Section 40(2) of the 1988 Act was concerned with the Crown Court's powers on conviction, this could be seen from the use of the word 'offender' which referred to a person who had been convicted, in contradistinction to the word 'accused' which was used in ss 4 and 4A of the 1964 Act and referred to a person found to be unfit to plead and not convicted. Once a jury concluded that an accused person was unfit to plead there could be no conviction in respect of any of the offences charged. The subsequent trial of the issue as to whether or not the accused did the act or made the omission charged against him as an offence could not result in a conviction but might affect the way in which the court ultimately decided to dispose of the matter. If Parliament had intended to limit the Crown Court's powers to deal with an accused tried on indictment for a summary offence and found unfit to plead to those powers applicable to the magistrates' court, it could readily have included such a limitation in the section. Accordingly, s 40(2) had no application and the admission order made by the judge was lawful, as were the subsequent transfer orders.