R v M (John) (2003)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE |
| Judgment Date | 14 November 2003 |
| Neutral Citation | [2003] EWCA Crim 3452 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200301137/B1 |
| Date | 14 November 2003 |
[2003] EWCA Crim 3452
Lord Justice Keene
Mr Justice Roderick Evans
Mr Justice Cooke
No: 200301137/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand London, WC2
MR J LEE appeared on behalf of the APPELLANT
MR A CAMPBELL appeared on behalf of the CROWN
The principal issue in this appeal concerns the test to be applied as a matter of law in determining whether an accused is fit to plead to the charge, or charges, against him.
On 18th December 2002 at the Central Criminal Court before His Honour Judge Roberts QC this appellant was found fit to plead. On 20th December in that same year and in the same court he was convicted of rape, indecent assault on a female, indecency with a child, and taking indecent photographs of a child. He was subsequently sentenced to a total of eight years' imprisonment.
He now appeals against conviction following a certificate of fitness for appeal which was granted by the trial judge on the ground that:
"My directions of law to the jury as to what the defendant must be capable of doing if he is to be fit to stand trial may have set the threshold too low."
He also applies for leave to appeal against conviction on a further ground to which we shall come.
Because of the nature of the issues in this case it is unnecessary to set out the facts of the substantive offences themselves in great detail. It was the Crown's case that the appellant had sexually abused the grand daughter of his partner in various ways between 1998 and 2000 at times when she was aged between eight and ten. It was alleged that the abuse had included his partially inserting his penis into her anus, licking her vagina, inserting his finger into her vagina and putting his penis in her mouth, masturbating to ejaculation in front of her and taking the indecent photographs referred to in the indictment.
It was the defence case, when this matter was finally tried, that the offences had not taken place and that the allegations were the result of the complainant's over active imagination. He gave varying explanations for the photographs, including that he had taken them at the complainant's request.
The appellant was arrested and interviewed in July 2001 and then released on bail. He was further interviewed and charged in October 2001. The issue of the appellant's fitness to plead was raised by the defence and a jury was sworn to try that issue. For reasons into which we need not go the trial of that issue did not begin until 10th December 2002.
It was the defence case that the appellant suffered from a serious impairment to his short term memory, known as anterograde amnesia, which rendered him incapable of following the proceedings and giving evidence in his own defence and therefore unfit to stand trial. It was noted by the judge that it was the appellant's own view that he was fit to stand trial and that he wanted an opportunity to go before a jury.
The prosecution's case was that the appellant was fit to stand trial despite his anterograde amnesia. It was submitted by the Crown that when in interview with the police and with psychologists and psychiatrists he had demonstrated a good recollection of events during the relevant period, had remembered various names and details about the complainant and about visits to her grandmother. It was argued that allowances could be made for the appellant's condition by the use of frequent breaks during the trial so that he could then discuss matters with his lawyers.
Apart from the interviews with the police the jury heard evidence about the appellant's fitness to plead from a number of witnesses. Those were Tom Brabender, a clerk from his solicitors, who visited him on more than one occasion, three psychiatrists, Dr Rachel Jones, called by the defence, Dr Martin Lock, called by the prosecution, and Dr Ian Cumming, appointed by the court, and two psychologists, Dr Fisher and Dr Drennan, called by the prosecution and the defence respectively.
Mr Brabender saw the appellant in November 2001 and said that the appellant appeared to understand the charges and gave explanations for some obscene photographs found in his car, but some of what he had said did not make sense. Mr Brabender was satisfied that he had been provided on that occasion with instructions by the appellant.
Dr Jones had visited the appellant first in March 2002. She had carried out some tests. She concluded that he had performed quite well in respect of those tests on orientation, attention, concentration and immediate memory, but he had not performed well on short term memory after three or five minutes. She thought that his short term memory had been affected by brain damage resulting from alcohol abuse. She formed the opinion that he was not fit to stand trial.
In June 2002 the Crown's psychiatric witness Dr Lock first saw the appellant. He discussed the appellant's past history with him and his evidence was that he received a much more credible and reasonable account than appeared to have been provided to Dr Jones. Dr Lock also carried out the mini-mental state tests and obtained the same results as Dr Jones, in that the appellant had performed well on everything except short term memory. Dr Lock asked the appellant a lot of questions about the offences he was charged with and noted that the appellant was able to provide a reasonable summary of the case and information that he alleged was the truth. Dr lock considered that the appellant was fit to stand trial.
Dr Jones, the defence psychiatrist, visited the appellant again on 19th July. She said to the court that it was obvious that his physical and mental state had improved considerably since her previous visit. She carried out the same test and recorded a score which was not indicative of a cognitive impairment. Her evidence was that on this occasion he was orientated in time, place and person, and his attention and concentration were intact. His remote memory, language and immediate recall were also intact, but his short term memory remained impaired. She noted in her report that she considered him to be capable of understanding the charges, challenging jurors, instructing lawyers and following and commenting on the evidence. She considered that he was fit to stand trial, provided that measures were taken to cater for his memory difficulties, such as the provision of frequent breaks so that matters could be explained to him. She found no evidence to indicate that he was suggestible. That then was what she found in July 2002.
A court appointed psychiatrist, Dr Cumming, also examined the appellant in July 2002. He agreed with Dr Jones that the appellant was fit to stand trial, provided arrangements could be made to assist him in the difficulties which he might experience due his impaired memory in so far as following the proceedings and passing comments to his lawyers.
However, both Dr Jones and Dr Lock saw the appellant again on 30th September 2002. As a result of that particular visit Dr Jones returned to her earlier view that the appellant was not fit to stand trial. She said that he had been unable to recall having seen her before and had said a number of strange things, such as that he was charged with raping his now 18-year old niece when she was four.
Dr Lock said that during his visit to the cells the appellant had recalled that he had previously examined him in prison in order to produce a report for the court. The appellant said that he had already seen a psychologist and explained the tests that he had done. This was true. Dr Lock remained of the opinion that the appellant was fit to stand trial.
The two psychologists carried out psychometric tests, one in August and the other in October 2002. The final findings of both psychologists confirmed those of the psychiatrists, namely that the appellant's general intellectual performance and concentration was good, but his short term memory, beyond a couple of minutes, was poor. Both psychologists concluded that the appellant was not fit to stand trial.
In the light of the psychometric tests all three psychiatrists reconsidered their opinions. Dr Jones said that they had confirmed her changed view, namely, that the appellant was not fit to stand trial. Dr Cumming said that the results of the tests had caused him to change his opinion and that he now also believed that the appellant was not fit to stand trial. However, Dr Lock did not agree and thought that the impairment of the appellant's short term memory did not render him unfit to stand trial, although, as he previously noted, special steps would be required in order to deal with his memory problems.
The judge directed the jury with great care as to the legal test to be applied to this issue. Indeed, he put his directions into typescript after discussing them with counsel and gave the jury copies. He began by telling them that they had to decide whether the defence had persuaded them on a balance of probabilities that the appellant was suffering from a disability which rendered him unfit to stand trial. He directed them that in order to be fit to stand trial at all a defendant must be capable of doing six things. He told them that it followed that it was sufficient for the defence to persuade them on the balance of probabilities that any one of those six things was beyond the appellant's capabilities. Those six things were as follows: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the...
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