R v Webb
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS,MR. JUSTICE CAULFIBLD |
| Judgment Date | 14 March 1969 |
| Judgment citation (vLex) | [1969] EWCA Crim J0314-1 |
| Docket Number | No. 80/69 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 March 1969 |
[1969] EWCA Crim J0314-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Sachs
Lord Justice Fenton Atkinson
and
Mr. Justice Caulfield
No. 80/69
MR. A.C. MUNRO-KERR appeared on behalf of the Appellant.
MR. D.P. O'BRIEN appeared on behalf of the Crown.
On 1st January, 1969, the appellant, a young man of 26, surrendered to his bail at Dorset Quarter Sessions to answer an indictment charging him with indecently assaulting a girl aged 9. Immediately after the case was called on, Counsel for the Prosecution stated that there was available evidence to the effect that the appellant was unfit to plead, being of a mental age incidentally of less than the girl whom he assaulted.
Counsel for the appellant did not admit that he was thus unfit to plead, and pressed for him to stand his trial in the ordinary way. Indeed, Mr. Munro-Kerr, with the great experience that is at his command, stated that he was content to accept instructions from the appellant, and today has repeated that he would even now be similarly content. He put it plainly to Dorset Sessions that he did not wish the issue of unfitness to plead to be raised if it was possible to prevent it, and that in any event he desired it to be postponed as long as practicable.
After some discussion as to the facts and the position created by section 4- of the Criminal Procedure (Insanity) Act 1964, Mr. Munro Kerr correctly conceded that the question of unfitness to plead must be tried some time before the Defence opens; thereupon the learned Deputy Chairman ruled: "yes, that being so it should be tried now". The jury having then been sworn and empanelled, the preliminary issue of fitness or unfitness to plead was tried. The medical witnesses - two in number -were called for the Prosecution and cross-examined for the Defence. Next there was called the Defendant's father, who spoke to the degree of his son's understanding. Then the jury were directed on the issue, and found that the appellant was unfit to plead. (It should be mentioned that Mr. Munro-Kerr in this Court has staed that he would have wished to impugn some parts of the summing up to the jury; but in the view which this Court takes of the matter, that point does not arise.) The verdict of the jury having been taken, the appellant was ordered to be detained in the terms provided by the Statute, and the trial did not proceed to arraignment.
On appeal to this Court, it has been submitted on behalf of the appellant that the learned Deputy Chairman misapprehended the law when making his order for the issue to be tried before arraignment, and that he either did not really exercise his discretion or alternatively, that having misdirected himself on principles, he did not exercise it judicially in the way that he should have done. It is further submitted that on the particular facts of the case the trial of the issue should have been postponed until after the evidence by the Prosecution had been given and tested, so that the appellant might have had a chance of an acquittal.
In those circumstances, before further examining the facts of the case, it is first convenient to read the relevant parts of section 4- of the 1964 Act, and to consider what is the position which they create in law. The first three subsections of section 4 read:
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"(1) 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 would constitute a bar to his being tried, the following provisions shall have effect:
(2) 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.
(3) Subject to the foregoing subsection, the question of fitness to be tried shall be determined as soon as it arises."
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 prosecution case by cross-examination of 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, to so 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. The direction in subsection (3) as to the question being tried as soon as it arises is specifically made subject to the provisions of subsection (2) which precedes it; and it follows as between these two that it is subsection (2) which is the controlling subsection. The discretion to be exercised is, of course, a judicial discretion.
The Court next turns to the matters to which regard must be had by virtue of the provisions of the latter subsection. One is the nature of the supposed disability; another is expediency in the interests of the accused. As regards the second, it is of course clear that if there are reasonable chances of the prosecution case being successfully challenged so that the defence may not be called upon, then clearly it is as a rule in the interests of the accused that trial of the issue be postponed until after arraignment. Whether, and to what degree lesser chances of success may warrant such a postponement, is something on which this Court will say no more than that if there are sufficient chances to warrant such a challenge the issue should be postponed until after that challenge has "been made. To the relevant facts of this particular case the Court will advert later; for each case must necessarily obtain on its own facts.
As to the way in which regard must be had to "the nature of the disability", this is a somewhat difficult matter. Suffice it to say that in the present case the appellant was, upon the medical evidence, a simple young man, subnormal in intelligence, but capable of going about - at any rate by day - on his own. He was in employment entailing the performance of a simple set of tasks - washing bottles. It may well of course be that he owed that employment in some degree to the kindliness of his employer, but the fact remains that he had held it for a considerable time. It is indeed to be observed that in the report of the Welfare Officer there appears this passage: "In 1960 Colin started work at the Rax Dairies, Bridport, under a firm but sympathetic employer. He enjoyed his work, and settled down well at home. Apart from one or two isolated incidents, Colin has been happy and settled over the past eight years."
The appellant moreover was in no way an aggressive type, nor was he a man unable to speak or to give at any rate some account of what happened to him in the normal course of events. There was nothing in the nature of a disability which would entail his being kept within the confines of a hospital, if he was found not guilty of the offence in question. In other words, in this particular instance, the accused was not a man of whom it could be...
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