R v Burles
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 16 December 1969 |
| Neutral Citation | [1969] EWCA Crim J1216-1 |
| Judgment citation (vLex) | [1969] EWCA Crim J1216-6 |
| Docket Number | No. 2623/69,No. 3623/69 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 December 1969 |
[1969] EWCA Crim J1216-1
The Lord Chief Justice of England (Lord Parker)
Lord Justice Megaw
and
Mr. Justice Bridge
No. 2623/69
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. GEOFFREY, HOWE Q. C. and MR. M. J. BRODRICK appeared as Counsel for the Appellant.
MR. W. HOWARD, Q. C. and MR. R. M. G. SIMPSON appeared as Counsel for the Crown.
On the 25th April of this year at Essex Assizes this Appellant was indicted upon a charge of manslaughter of a fellow patient at a mental hospital. He was in fact found to be under a disability and was ordered to be admitted to such hospital as the Secretary of State should specify. It is against that finding of disability and order of the learned Judge that he now appeals by leave of the single Judge.
What happened here was that the learned Judge had before him the Medical Reports. In particular he had a report of a Dr. Harfst, which disclosed that this Appellant aged 22 was severely subnormal, and when he was under 5 years of age had been admitted to the South Ockendon Hospital where he had remained ever since. The doctor reported thus: "He appeared to respond to his name but showed no signs of any other understanding of spoken language. He does not speak intelligently and communicates only in a crude fashion by using his arms and grimacing, and only those who know him well can understand such communications and respond to them appropriately".
Having that report in front of him, the learned Judge at the very outset of the proceedings drew the attention of Mr. Howard for the Prosecution to this report. In addition, having read the depositions, the learned Judge asked Mr. Howard whether in the light of the evidence or statements there was a case to go to the Jury. Mr. Howard very frankly, having himself considered that there was a lacuna in the evidence, said: "In my view there would not be sufficient evidence upon which I could properly invite a Jury to convict".
That being so, the question arose as to whether the fitness to plead should be tried forthwith or as it envisaged in Section 4 of the Criminal Procedure Insanity Act, 1964 be postponed, in which case of course a plea of not guilty would have been entered, and Mr. Howard would have tendered no evidence; and as a result the Appellant would be acquitted.
The learned Judge having heard argument from Mr. Howe on behalf of the Appellant, said this: "Now, my view is that this Act was passed to deal with the case of somebody who was, unhappily, deaf and dumb but perfectly sane in the sense that he was, provided with the proper translation, able to follow the proceedings in a Court and able to tell people what had really happened. This Court has to consider whether if having regard to the nature of the supposed disability it is "expedient to postpone trial as to whether this man is fit to plead and, apart from the interests of the Accused, if consideration of that question should be postponed.
"In this particular case, having seen what the medical report says, I am of the opinion that it is not expedient to postpone consideration of the question of the Accused's fitness to be tried. It looks from the medical report that he is so mad that it would be quite wrong to take any plea from him. It looks as if he cannot understand any communication or make any communication. In those circumstances, stricly speaking a solicitor has no authority to act for him. I think therefore I ought to take the responsibility of calling a medical witness after a Jury has been sworn to try whether this man is so insane as to be unfit to take his trial".
In the result, evidence having been called and the trial Judge having summed up, the Jury returned a verdict that the prisoner was under a disability so that he could not be tried on the indictment. Thereupon the Order was made that he be admitted to such hospital as may be specified by the Secretary of State. In fact he has gone back to the South Ockendon Hospital; that is the place where he had been throughout his life, and as far as anybody can see would remain whether or not he was acquitted on this indictment.
The section, as is well known, resulted in part, at any rate, from the observations of Mr. Justice Devlin as he then was in the case of Roberts reported in 37 Criminal Appeal Reports at page 86, where Mr. Justice Devlin said this at page 89: "To insist upon the issue of fitness to plead or not being tried might result in the grave injustice of detaining as a Broadmoor patient a man who was quite innocent; and it might result in the public mischief that a person so detained would be assumed, in the eyes of the police and of the authorities, to have been the person responsible for the crime, whether he was or was not, and investigations which might have led to the apprehension of the true criminal would not take place."
In Webb's case reported in 53 Criminal Appeal Reports at page 360, Lord Justice Sachs in giving the judgment of the Court said this at page 363: "Before the passing of the 1964 Act, the issue of fitness to plead had of necessity to be disposed of before arraignment. If the jury found unfitness to plead, then the order of the court was in all cases that the appellant be detained at Her Majesty's Pleasure. One of the main objects of the Act was, of course, to enable the accused to avoid this much dreaded order in cases where the defence was in a position to demolish the case for the prosecution by cross-examination or upon some point of law before the time came for the defence to be opened. It was for this reason that the courts were given the discretion provided by section 4 (2) of the Act so to postpone the trial of the issue of fitness to plead that it need no longer, as formerly, be of necessity dealt with before the arraignment".
It being clear that that was the object of the Act, it is nevertheless true to say that the section, and in particular sub-section (2) of Section 4, is by no means easy to construe. Sub-section (1) of Section 4 provides that: "Where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under disability, that is to say under any disability such that apart from this Act it would constitute a bar to his being tried, the following provisions shall have effect". I will read sub-section (3) first: "Subject to the foregoing subsection, the question of fitness to be tried shall be determined as soon as it arises". The foregoing sub-section, sub-section (2), provides: "The court, if having regard to the nature of the supposed disability the court are of opinion that it is expedient so to do and in the interests of the accused, may postpone consideration of "the said question (hereinafter referred to as 'the question of fitness to be tried') until any time up to the opening of the case for the defence, and if before the question of fitness to be tried falls to be determined the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried that question shall not be determined".
It seems to this Court that a trial Judge must in applying this sub-section first consider the apparent strength or weakness of the Prosecution case as disclosed on the depositions or statements as the case may be. He should then go on to consider the nature and degree of the suggested disability, something which will be disclosed in the medical reports before the Judge; then having paid attention to those two matters he must ask himself: what is expedient and in the prisoner's interest. Approaching the matter on that basis one can envisage cases to which there can really only be one answer: thus the prosecution case may appear so strong and the suggested condition of the prisoner so disabling that postponement of the trial at issue would be wholly inexpedient. Again, the prosecution case may be so thin that whatever the degree of disablement it clearly would be expedient to postpone the trial. Between these two extremes it falls to the Judge to weigh up the various considerations, and as a matter of discretion to order that the issue be either tried forthwith or postponed.
One consideration, as was pointed out by Lord Justice Sachs in Webb's case 53 Criminal Appeal Reports, at the foot of page 364, is as to what would be likely to happen to the prisoner in the normal course of events. In other words would acquittal result in his being a free man or would acquittal merely result in his continued detention in some mental hospital? That in the opinion of this Court was not the sole criterion so far as the nature and degree of disablement is concerned and in the opinion of the Court a Judge must also consider the ability or inability of the prisoner, based on medical reports, to give some instructions to Counsel to test the prosecution case. There may be cases where some instructions can clearly be given, other cases where no coherent instruction at all could be given.
Approached in that way, this case is really an a fortiori case; there is not merely a reasonable chance but a 100 per cent certainty of the prosecution not proving their case, and in such circumstances it is clearly expedient and in the interests of the Prisoner to postpone the trial of the issue, and that whatever the nature and degree of the suggested disability. It follows that in the opinion of this Court the learned Judge in the present case erred in law. It may be that he was misled in his approach by what he said in the opening words of his reason which I have just read, namely his view that this section was dealing and dealing only with the cases of somebody who was, as he put...
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