Robert Marcantonio v R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones |
| Judgment Date | 24 February 2016 |
| Neutral Citation | [2016] EWCA Crim 14 |
| Docket Number | Case Nos: 2013 05021 C3, 2015 00606 C2,2013/5021/C3 and 2015/606/C2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 February 2016 |
[2016] EWCA Crim 14
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd Jones
Mr. Justice Edis
and
His Honour Judge Wait,
Sitting as a Judge of the Court of Appeal (criminal Division)
Case Nos: 2013 05021 C3, 2015 00606 C2
On Appeal From HhJ Goldstaub QC T20117306
Case No: 2013 05021 C3
On Appeal From Hhj Bishop T20140055
Case No: 2015 00606 C2
Mr. Duncan Atkinson, Mr. Paul Mitchell, Mr. Richard StevensandMr. Matthew Curtis(instructed by Crown Prosecution Service) for the Respondent
Ms. Brenda Campbell (instructed by G.T. Stewart) for Marcantonio
Mr. Chitolie appeared in person
Mr. Louis Mably (instructed by the Registrar) as amicus curiae
Hearing dates: 16th & 17th December 2015
HTML VERSION OF JUDGMENT
This is the judgment in two cases, an appeal against conviction ( R v. Marcantonio) and an application for permission to appeal against conviction ( R v. Chitolie), which have in common the submission that the appellant/applicant in each case was unfit to plead, within section 4, Criminal Procedure (Insanity) Act 1964, at the time of his trial, and that this court should therefore quash his conviction and consider the exercise of its powers under section 6, Criminal Appeals Act 1968. A third case ( R v. T) was heard at the same time. A separate judgment is handed down in that case which, because of the orders made, is subject to reporting restrictions. A fourth case ( R v. John Cawley) in which an application was made for leave to appeal against conviction and which raised the same issues was originally listed to be heard at the same time as the other cases but was abandoned the day before the hearing.
Legal principles
The applicable test
The question whether an accused is fit to plead is determined by the application of tests laid down at common law. The direction of Baron Alderson to the jury in Pritchard (1836) 7 C&P 303, 304–5 remains the foundation of the current law.
"There are three points to be enquired into: First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings on the trial so as to make a proper defence — to know that he might challenge [any jurors] to whom he may object — and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary matters."
In Podola [1960] 1 QB 325, 353, a case concerning hysterical amnesia, Lord Parker CJ stated that these tests had been followed so often that they may be said to be "firmly embodied in our law". Lord Parker observed:
"So far as "make a proper defence" is concerned, it is important to note that the words do not stand alone, but form part of a sentence the whole of which is "whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence". In other words, this passage itself defines what Alderson B. meant by "make a proper defence". As to the word "comprehend", we do not think that this word goes further in meaning than the word "understand". In our judgment the direction given by Alderson B. is not intended to cover and does not cover a case where the prisoner can plead to the indictment and has the physical and mental capacity to know that he has the right of challenge and to understand the case as it proceeds." (at p. 354)
The Pritchard test has been reinterpreted by the courts to make it more appropriate for the modern trial process. This is apparent, for example, in John M [2003] EWCA Crim 3452, where this court, following the earlier authorities including Pritchard and Podola, approved the written directions of His Honour Judge Roberts QC at first instance. ( John M was decided before section 22, Domestic Violence, Crime and Victims Act 2004 provided that the decision whether an accused is unfit to plead shall be taken by a judge alone, rather than by a jury as had previously been the case.) The judge directed the jury that they had to be sure whether the defence had persuaded them on a balance of probabilities that the accused 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 and 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 defendant's capabilities. Those six things were: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his rights to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; (6) giving evidence in his own defence.
The judge provided an explanation of each in terms which included the following:
(1) The ability to instruct his solicitor and counsel (para.21):
"This means that the defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence. It involves being able (a) to understand the lawyers' questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishes to give. It is not necessary that his instructions should be plausible or believable or reliable, nor is it necessary that he should be able to see that they are implausible, or unbelievable or unreliable. Many defendants put forward cases and explanations which are implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for."
(2) The ability to follow the course of the proceedings (paras. 22–23):
"This means that the defendant must be able (a) to understand what is said by the witness and by counsel in their speeches to the jury and (b) to communicate intelligibly to his lawyers any comment which he may wish to make on anything that is said by the witnesses or counsel. Few defendants will be able to remember at the end of a court session all the points that may have occurred to them about what has been said during that session. It is, therefore, quite normal for the defendant to be provided with pencil and paper so that he can jot down notes and pass them to his lawyers either as and when he writes them, or at the end of the session. (Lawyers normally prefer not to be bombarded with too many notes while they are trying to concentrate on the evidence). There is also no reason why the defendant's solicitor's representative should not be permitted to sit beside him in court to help with the note taking process… It is not necessary that the defendant's comments on the evidence and counsels' speeches should be valid or helpful to his lawyers or helpful to his case. It often happens that a defendant fails to see what is or is not a good point to make in his defence. The important thing is that he should be able to make whatever comments he wishes."
(3) The ability to give evidence (para.24):
"This means that the defendant must be able (a) to understand the questions he is asked in the witness box, (b) to apply his mind to answering them, and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable. Many defendants and other witnesses give evidence which is either in whole or in parts implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for. Nor is it necessary that the defendant should be able to remember all or any of the matters which give rise to the charges against him. He is entitled to say that he has no recollection of those events, or indeed of anything that happened during the relevant period."
The Pritchard criteria have been subjected to much criticism. In this regard we draw attention to the judgments of this court in Murray [2008] EWCA Crim 1792, Diamond [2008] EWCA Crim 923 and Walls [2011] EWCA Crim 443 and to the Law Commission's Report on Unfitness to Plead (Law Com No 364; 13 January 2016). However, as matters presently stand, the Pritchard criteria are firmly established as the law which has to be applied by this court.
It seems to us, however, that in applying the Pritchard criteria the court is required to undertake an assessment of the defendant's capabilities in the context of the particular proceedings. An assessment of whether a defendant has the capacity to participate effectively in legal proceedings should require the court to have regard to what that legal process will involve and what demands it will make on the defendant. It should be addressed not in the abstract but in the context of the particular case. The degree of complexity of different legal proceedings may vary considerably. Thus the court should consider, for example, the nature and complexity of the issues arising in the particular proceedings, the likely duration of the proceedings...
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