Unfit to Plead or Unfit to Testify? R v Orr [2016] EWCA Crim 889
| Author | Abenaa Owusu-Bempah,Natalie Wortley |
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
| DOI | http://doi.org/10.1177/0022018316670081 |
| Subject Matter | Court of Appeal |
Court of Appeal
Unfit to Plead or Unfit to Testify?
RvOrr [2016] EWCA Crim 889
Keywords
Unfitness to plead, effective participation, ‘trial of the facts’, cross-examination, s. 35 Criminal Justice and Public
Order Act 1994
The appellant, a solicitor, was convicted of being concerned in a money laundering arrangement. He was
first tried in 2012, but the trial was terminated when the appellant became ‘unfit’ shortly after his cross-
examination had begun. A new trial commenced in October 2014. The appellant gave evidence-in-chief
but, on the day that the prosecution was due to commence cross-examination, the appellant was unwell.
The trial judge adjourned the trial to allow the appellant to be examined by a psychiatrist. The psychia-
trist, applying the principles set out in the Mental Capacity Act 2005, was of the opinion that
the appellant was ‘unable to participate in his trial’ (at [14]). A second psychiatrist indicated that the
appellant’s mental state was such that he was now ‘unable to give evidence in his own defence’,
rendering him ‘unfit to plead’ (at [16]). Counsel for the appellant presented two options to the judge.
The first option was to continue the trial with the appellant not undergoing cross-examination, but on
the condition that the prosecution could not make a closing speech. The second option was to find the
appellant unfit to plead and commence a ‘trial of the facts’, following the procedure set out in s. 4A of the
Criminal Procedure (Insanity) Act 1964 (‘the 1964 Act’).
The trial judge eventually decided that the appellant was unfit to be cross-examined, but that he had
been fit to give evidence-in-chief. The judge allowed the trial to continue, but ruled that the prosecu-
tion’s closing speech must not refer to any subject that the appellant had not been in a position to meet in
cross-examination. The judge directed the jury on the issue, including that the inability to give evidence
was not the appellant’s fault and that the jury should not speculate about the answers the appellant may
have given had he been cross-examined (at [18]).
The appellant was convicted and appealed on the following grounds:
1. If the trial judge found the appellant was unable to be cross-examined by virtue of his inability to
properly respond to questions asked in cross-examination, he should have ruled that he was not fit
to be tried, discharged the jury from returning verdicts and then, proceeded to a determination by
the jury as to whether the appellant had done the act or made the omission charged against him in
accordance with section 4A(1) of the Criminal Procedure (Insanity) Act 1964;
2. In the alternative the appellant’s conviction is unsafe since he did not receive a fair trial (at [19]).
HELD, allowing the appeal, the way in which the case progressed had not disadvantaged the
appellant, as he had dealt with the Crown’s case in detail in his evidence-in-chief, the prosecution’s
closing speech had been restricted, and the jury had been directed on the issue (at [20]–[22]). However,
The Journal of Criminal Law
2016, Vol. 80(6) 391–402
ªThe Author(s) 2016
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DOI: 10.1177/0022018316670081
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