Cps v P

JurisdictionEngland & Wales
JudgeLady Justice Smith,Mr Justice Gross
Judgment Date27 April 2007
Neutral Citation[2007] EWHC 946 (Admin),[2002] EWHC 946 (Admin)
Docket NumberCase No: CO/8754/2006
CourtQueen's Bench Division (Administrative Court)
Date27 April 2007

[2007] EWHC 946 (Admin)







Lady Justice Smith

Mr Justice Gross

Case No: CO/8754/2006

Crown Prosecution Service

Mr Brian Hurst (instructed by CPS)

Mr Christopher Dorman O'Gowan (instructed by Hewitts Solicitors) for the Defendant

Hearing date: 27 February 2007

Lady Justice Smith

This is an appeal by way of case stated against the decision of DJ Wood sitting in the Bishop Auckland Youth Court in which he stayed, as an abuse of process, criminal proceedings brought against the respondent P, a boy now aged 13 years. The appeal is brought by the Crown Prosecution Service (CPS).



P was born in 1993. His behaviour and development gave rise to concern when he was only 4. At the age of 5, he was referred to the Department of Child and Family Psychiatry at Bishop Auckland. At the age of 7, he was diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed Ritalin. In 2002, he was assessed as having special educational needs. In 2003, by which time he was 10, it was noted that, despite his medication, his behaviour was not well controlled.


In 2004, he was brought before the youth court to face allegations of kidnapping, false imprisonment, indecent assault, criminal damage, burglary, taking a vehicle without consent and driving without a licence. All these offences were said to have been committed within a period of 6 weeks in March and April 2004. The youth court committed him for trial at the Teesside Crown Court. On 2 nd June 2005, at that court, His Honour Judge Bryant QC was shown a number of psychological and psychiatric reports on the basis of which the prosecution accepted that P was unfit to plead. The proceedings were stayed at that stage.

The Current Proceedings in the Youth Court


In 2005, a complaint was made that P had assaulted another child on 24 th August. Then on 29 th September, the police arrested him, allegedly at the wheel of a car; he was said to be in the act of backing it out of the drive of the owner, who had left the keys in his possession, so that he could listen to the car radio. On 17 th November 2005, he appeared before the youth court and denied both allegations. By so doing, he implicitly accepted that he was fit to plead.


On 26 th April 2006, he appeared in court again at the hearing of a defence application to have the proceedings stayed as an abuse of the process of the court. It was contended that P did not have a sufficient level of maturity or intellectual capacity to understand and participate effectively in the proceedings. DJ Wood considered the same psychological and psychiatric reports as had been considered by Judge Bryant in June 2005. He also had a recent report, dated 22 nd April 2006, from Mr Charles Burdett, the consultant clinical psychologist who had previously reported.


In his first report dated 24 th July 2004, Mr Burdett opined that P had been properly diagnosed as having ADHD. He had a verbal IQ of 60 and a performance IQ of 74, giving a full scale IQ of 65. He was in the lowest centile of the population. At the age of 11 (as he then was) P had a mental age of 7 years and 4 months. Mr Burdett was of the view that, on account of his poor verbal reasoning and level of comprehension, P would have great difficulty in understanding concepts such as right and wrong and differentiating between 'seriously wrong' and 'merely naughty'. That last expression of opinion appears to be directed at the question of whether P was doli incapax.


The other professionals who had reported for the purpose of the 2005 proceedings agreed with the diagnosis of ADHD and accepted the IQ assessments. All accepted that P did not have the capacity to participate effectively in a criminal trial. Dr Surya Bhate, a consultant adolescent forensic psychiatrist, was of the view that P would only partially understand court proceedings. He had little understanding of the role of a judge or jury and an imperfect understanding of the role of his own solicitor. Although P had told Dr Bhate that he would be able to tell his solicitor if someone told lies about him, she doubted whether he would have the concentration to listen to the evidence so as to be able give such instructions. She did not think that he would be able to give evidence, due to his inability to concentrate, and also doubted whether he would be able to remember the incidents under discussion.


Dr Alison Westman, a consultant child and adolescent psychiatrist, took a slightly different view of P's difficulties. She said that he was not fit to plead. She accepted the IQ assessment of Dr Burdett but she was of the view that P's intellectual deficit would not of itself prevent him from understanding the issues and following proceedings in court. She thought that he was so 'disengaged from any process in which he could learn effectively or accept advice' that he would be unable to cope with or follow the proceedings. As I understand her report, she was saying that it was not so much his intellectual problems that made it impossible for P to take part in the proceedings but his behaviour. Dr Westman added a section about the disposal that would be appropriate if the court proceeded to find that P had done the acts alleged. She opined that his mental health difficulties did not warrant the making of an order under the Mental Health Act 1983. She recommended that, if the court were minded to discharge P, before it did so, 'a robust and comprehensive multi-agency package should be put together' with the aim of 'improving his behaviour and emotional and social functioning' and also 'with the important aim of offering ongoing risk assessment and risk management'. It is not clear to me under what power Dr Westman had in mind that her suggestions could be put into effect.


Pausing there, it is not difficult to understand why, in June 2005, the prosecution accepted, without argument, that P was unfit to plead in the Crown Court proceedings. Mr Burdett had implied that he was unfit to plead; Dr Westman had said so in terms and Dr Bhate had not disagreed. There was no other evidence to gainsay this apparently unanimous view. I do not know whether Judge Bryant considered the possibility of proceeding further. In theory he could have applied the procedure set out in sections 4, 4A and 5 of the Criminal Procedure (Insanity) Act 1964 as amended. He would have had to swear a jury to find whether P had done the acts alleged against him. If the jury had found that he had, the judge could then have considered obtaining further evidence with a view to making a hospital order (which Dr Westman had said was inappropriate) or a supervision order. Judge Bryant may have thought that that procedure, involving a jury, was inappropriate for a child of P's age. In any event, this procedure was not followed and it appears that the proceedings were stayed and no order was made against P.


Mr Burdett's report of 22 nd April 2006, prepared for the hearing in the youth court confirmed and enlarged upon his earlier views. He said that P's level of intellectual functioning was within the learning disabled range. His verbal intellectual skills, his general memory functioning and his ability to pay attention and concentrate were all within the severely disabled range. He was diagnosed as having ADHD and a conduct disorder. He would not be capable of understanding the nature of court proceedings. He would not be able to concentrate on the evidence and argument in a courtroom. His memory capacity was so impaired that he would not remember what had gone before. He would not understand much of what was going on during the proceedings. Also, he would have very little understanding of the significance of his own behaviour. He would not be capable of forming the necessary intent for the offences he was said to have committed. In effect, there was no change from the position in 2004. The Prosecution did not challenge Mr Burdett's report and did not commission any other report.


It should be noted that the reports addressed a number of issues. They considered whether P knew that what was being alleged against him was seriously wrong and they also addressed fitness to plead, the formation of intent and the question of whether he would be able to play an effective part in a criminal trial.


It appears from the skeleton arguments prepared for the hearing before the youth court that the defence submitted that, since the abolition in 1998 of the common law rule relating to doli incapax, the only way in which a child of P's age with cognitive disabilities could be protected from criminal proceedings which he did not have the capacity to understand was by an abuse application. It was submitted first, that if the rule relating to doli incapax were still in force, the prosecution would not have been able to demonstrate that P knew that what he was alleged to have done was seriously wrong. Also, it was submitted that the psychological and psychiatric reports showed that he would not be able to understand and effectively participate in any court proceedings. Therefore there should be a stay.


The prosecution response to this was to submit that the correct procedure to follow in cases before the youth court, where the issue of the defendant's fitness to plead or capacity to understand the proceedings was raised, was provided for in section 37(3) of the Mental Health Act 1983 (MHA 1983) read together with section...

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    • United Kingdom
    • House of Lords
    • 29 April 2009
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    ...to in Lord Hutton’s judgment. [72] In this regard Mr MacDonald referred me to the authority of Crown Prosecution Service v P [2007] EWHC 946 (Admin). 15 [73] In that case P had been diagnosed as having Attention Deficit Hyperactivity Disorder at the age of seven and had been assessed as req......
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9 books & journal articles
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    • International Journal of Evidence & Proof, The No. 22-4, October 2018
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