England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Tuesday 8th October 1996

B E F O R E :

LORD JUSTICE McCOWAN

MR JUSTICE OGNALL

and

MRS JUSTICE STEEL

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R E G I N A

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MICHAEL EGAN

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR D TAYLOR appeared on behalf of the Appellant

MR S PLASCHKES appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Tuesday 8th October 1996

MR JUSTICE OGNALL: Michael Egan is now 21 years of age. On 8th November 1995, in the Crown Court at Croydon, he was found by a jury to be unfit to plead, and on 10th November he was found by the jury, notwithstanding the fact of that disability, to have done the act or made the omission charged against him as theft. An admission order to hospital was made pursuant to section 5 of the Criminal Procedure (Insanity) Act of 1964. It is important to indicate, for reasons which will hereafter become apparent, that that disposal was not accompanied by a restriction order.

He now comes before this Court by way of a reference by the learned Registrar who has purported to grant legal aid for that purpose to Mr. Taylor of counsel, to whom we are greatly obliged for his arguments today. He appeals against the finding of fact that he did the act alleged in the indictment as theft.

The facts giving rise to this matter are as follows. There was no dispute that at about 11 o'clock or thereabouts on 11th January 1995, a man described as "a tall black man" had snatched Miss Craig's handbag from her while she was travelling on a train from Herne Hill to Petts Wood. The issue for the jury was whether it had been proved that the appellant was the snatcher.

It is unnecessary, we consider in the circumstances of this particular case, to set out in any detail the nature of the evidence adduced on behalf of the Crown and directed to proof of the identity of the thief of the handbag, namely the appellant. Suffice it to say that on any view it was compelling to a degree, and although a matter for the jury virtually conclusive on any sensible appraisal of all the evidence called.

Nonetheless, it is important to observe that upon arrest the appellant, who appeared strangely erratic in his behaviour, maintained at all times to the police that he had been arrested for no reason, and he denied snatching the handbag at all. He was unable to explain how property from that handbag had been found either in his possession or closely physically proximate to him or where he had been on the railway train.

The appellant gave evidence on the trial of the issue of fact. He was unable to be of any real assistance but it is sufficient to say that he told his learned counsel, Mr. Taylor, that he could remember the 11th of January, and that he denied that he had taken the handbag. Thereafter his evidence, if it can be so characterised at all, consisted essentially of shaking of the head, gesticulating or giving no intelligible answer to any further questions put to him. That is, we hope, a sufficient summary of the evidence given in this case, leading to the jury's conclusion that the appellant had perpetrated the act otherwise characterised in the indictment as the offence of theft.

In those circumstances a number of matters arise for the consideration of this Court. The first, although not alluded to by either counsel in the course of their arguments before us, nonetheless deserve brief attention from the Court. It arises in this way. It is necessary to refer to the Criminal Procedure (Insanity) Act of 1964 and, in particular, to section 4A of that Act. Section 4A reads as follows:

"(1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability. [We pause to say that as we have already indicated that was the case here]

(2) The trial shall not proceed or further proceed but it shall be determined by a jury-

(a) on the evidence (if any) already given in the trial; and

(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,

whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence."

The reason we allude to the terms in particular of section 4A(2) of the Act is this. There is no record before the Court that in fact in this instance the learned judge complied with its terms, and, in particular, there is no record that the learned judge, as was his duty under subsection (2)(b), in fact appointed anybody to put the case for the defence on the issue of fact.

It is right having said that, however, to note that this appellant continued thereafter to be more than competently represented by learned counsel, Mr. Taylor, who did everything he possibly could in undoubtedly testing, if not invidious, circumstances, to put the appellant's defence namely, 'I was not the bag snatcher.' Accordingly, in those circumstances it is necessary to consider whether the apparent failure formally to appoint Mr. Taylor, as subsection (2) of section 4A requires, was a material irregularity. This Court is quite satisfied that it was not. It was clearly a matter of form but, in our judgment, it was not a matter of substance. In reaching that conclusion we are comforted by some observations on this topic of Hutchinson L.J., giving the judgment in another division of this Court, in the case of R v. O'Donnell , (not officially reported) - a transcript of which is before us setting out the terms of the judgment of the Court given on 19th October 1995. Accordingly, although it is correct, as we believe, to draw attention to that apparent deficiency, we are quite satisfied for those reasons that it was not a material irregularity.

We turn now to the argument which is in the forefront of Mr. Taylor's submissions. He submits, first, that in order for the jury to be satisfied that the appellant committed the act alleged against him, it was to all intents and purposes essential for the Crown to prove all the ingredients of the offence which was originally alleged against him, namely of theft.

With that submission this Court readily agrees. It will be apparent that the use of the phrase "the act" in the statutory provision to which we have already referred and in other sections of both the 1964 and 1991 Criminal Procedure Act is to avoid a person being afflicted with the stigma of a criminal conviction when at the time he or she was in fact under a disability. It would be wrong in those circumstances, manifestly for such person to be the subject of a criminal record for the commission of that offence. But that in no way exonerates the Crown in an instance of this kind for proving that the defendants conduct satisfied to the requisite extent all the ingredients of what otherwise, were it not for the disability, be properly characterised as an offence. Accordingly we are satisfied, and indeed both counsel agree, that although the words "the act" are used in the relevant legislation, the phrase means neither more nor less than proof of all the necessary ingredients of what otherwise would be an offence, in this case theft. Thus it was unnecessary undoubtedly for the Crown in this case in order to satisfy the jury that the appellant had committed the act in question to prove that his conduct surely fulfilled all the necessary ingredients of that offence. That meant that the prosecution had to satisfy the jury that he had dishonestly taken the lady's handbag, intending at the time of such taking, permanently to deprive her of it and its contents.

In those circumstances Mr. Taylor makes this complaint. He submitted to the learned judge that he should be entitled to call before the jury evidence from a psychiatrist directed to the question of whether or not this appellant was capable of forming a dishonest intent. The learned judge ruled against that submission. Mr. Taylor contends that he was wrong to do so. Secondly, it is complained that consonant with that ruling, the learned judge in the course of his summing-up confined himself to dealing with the evidence which went in proof objectively of what the Crown contended the appellant's intentions must have been.

It is submitted by Mr. Taylor that the learned judge fell into error in that regard; that there was a material failure by way of non-direction, and that it was incumbent upon the learned judge specifically to invite the jury to consider on the evidence whether this man was himself capable of acting dishonestly and forming the dishonest intention permanently to deprive. For this purpose reliance is placed on the now well-known decision of another division of this Court in R v. Ghosh (1982) 75 CrAppR 154, the judgment of the Court given by the then Chief Justice, Lord Lane. It is unnecessary for the purposes of this judgment to set out the details of the judgment of the Court in that case, suffice it to say that the Court did indicate that in appropriate circumstances it would be necessary for a jury to consider not only whether objectively they took the view that the defendant in question was proved to have acted dishonestly, but additionally, whether the defendant himself, must have recognised that what he was doing would by all objective standards of reasonable people have been characterised as dishonest. Mr. Taylor's complaint therefore is that the second limb of that direction set out in Ghosh was not in fact given by the learned judge in this case.

We have considered that criticism with care. There can be no doubt that in the course of his summing-up the learned judge did indeed confine himself to dealing with what we have described as the objective indications that this man must have had a dishonest mind and did not invite the jury to consider what we have described as the second limb of the Ghosh direction.

We do not think that in this case Mr. Taylor's submission is a well-founded one. The position is this. It is important to keep in the forefront of our minds that the sole issue raised for the jury's consideration here was the identity of the bag snatcher. As we have indicated, the appellant himself at all times said in interview "it was not me", and however succinct and no doubt sad his evidence before the jury, he reiterated that denial before them. There was, in our clear estimation therefore, no other issue before the jury than: was it surely proved that this man the bag snatcher? In those circumstances the learned judge, we are satisfied, acted appropriately in not giving the second limb of the Ghosh direction. We have in mind two earlier decisions of other divisions of this Court in support of that conclusion. The first of them is

R v. William Roberts (1987) 84 Cr.App.R. 117. The second is R v. Ronald William Price (1990) 90 Cr.App.R. 90 409. It is sufficient for present purposes to remind ourselves of the terms of the judgment in Roberts as set out in the head-note in this Criminal Appeal Report.

The appellant in that case was charged with dishonest handling of stolen goods. There was a body of evidence demonstrating that the appellant had not only received those stolen goods but had in fact dishonestly done so. The appellant himself did not give evidence and was convicted. On appeal it was contended that the principal question was one of dishonesty, and accordingly the principles set out in Ghosh should have been stated in full in the summing-up.

In giving the judgment of the Court, O'Connor L.J. stated in the clearest terms that in the context of that case the full Ghosh direction was unnecessary since the appellant had never raised the issue of whether he thought such conduct was dishonest or not. In those circumstances the appeal was dismissed. That principle was cited with approval in the subsequent case of Price.

It seems to us that that principle is of equal application to this ground of appeal. As we have said, it was never contended on this appellant's behalf as an issue before the jury, or at least properly before the jury, that this appellant probably failed to recognise that what he was doing would by the ordinary standard of members of society be recognised as dishonesty. The only defence on the evidence before the jury was 'not me'. Accordingly it was not for those reasons incumbent upon the trial judge to give what is described as the second limb of the Ghosh direction and accordingly there is nothing in that point.

That suffices to dispose of the substance of this appeal. But there arises for consideration an interesting point not free from difficulty which involves the Registrar's grant of legal aid to Mr. Taylor to pursue this appeal before this Court.

In those circumstances, it is unnecessary for the Court to consider whether (had the subjective test been necessary for the jury to apply) psychiatric evidence would have been admissible on that issue. We express no view about it.

In the light of the conclusions we have arrived at and which we shall refer in a moment we wish to say this by way of emphatic preface. First, as we have already indicated, we are greatly obliged to Mr. Taylor not only for the conspicuous assistance he rendered to his client in testing circumstances in the court below, but for the assistance he has given to this Court today. We do not know whether the Registrar has what we shall describe as inherent discretionary powers to grant legal aid in circumstances outwith the Legal Aid Act or Regulations thereunder. If he does, we would urge that he gives consideration to the exercise of those powers in this case.

Having said that, however, it is necessary to note that the Registrar in granting legal aid to counsel for the purposes of pursuing this appeal relied upon Regulation 10 of the Legal Aid in Criminal and Care Proceedings (General) Regulations of 1989 to do so. We must consider whether in fact the appellant in this case fell in the category of persons who was entitled to legal aid under the Act or Regulation thereunder. We are satisfied with some regret, that he was not.

The starting point of the statutory trail leading to that unhappy conclusion is to be found in paragraphs 4, 1 and 2 of the first schedule to the Criminal Procedure (Insanity) Act 1991. It reads as follows:

"If, while a person is detained in pursuance of an admission order made by virtue of section 5(1)(b) of the 1964 Act (findings of unfitness to plead...) the Secretary of State, after consultation with the responsible medical officer, is satisfied that that person can properly be tried, the Secretary of State may remit that person for trial either-

(a) at the court of trial; or

(b) to a prison; or

(c) to a remand centre...

(2) For the purposes of sub-paragraph (1) above, a person shall not be treated as detained in pursuance of such an order as is there mentioned if-

(a) no direction has been given in his case under paragraph 2(1)(b) above..."

Paragraph 2(1)(b) in its material part reads as follows:

"A person who is admitted to a hospital in pursuance of an admission order made otherwise [known as] section 14A of the 1968 shall be treated for the purposes of the 1983 Act-

...

(b) if the court so directs, as if an order restricting his discharge had been made under section 41 of that Act, either without limitation of time or during such period as may be specified in the direction."

In effect, the conjunction of those two paragraphs of the first schedule to the 1991 Act make it plain, for the purposes of this case, that unless the trial judge upon the adverse findings of fact made a restriction order in tandem with the hospital order, then albeit that subsequently the person in question recovers and is no longer under a disability, nonetheless the Secretary of State has no power to require him to stand trial for the matter originally alleged against him. It will be apparent in the circumstances of this case that absent any restriction order the Secretary of State had no such power in this case.

We turn now to section 4A of the Criminal Procedure (Insanity) Act of 1964. That is a section which we have already read out in giving the earlier judgment of this Court on the matter of substance raised by Mr. Taylor in the course of his submissions to the Court. It is unnecessary to reiterate its provisions at this stage.

It seems to us that it is important now to remind ourselves of the terms of the relevant criminal legal aid legislation, namely Regulation 10 of the Legal Aid in Criminal Care Proceedings (General) Regulation of 1989. The Regulation under which the learned Registrar of this Court purported to act, reads as follows:

"Subject to the provisions of section 21(2), (3) and (5) of the Act [that is the Legal Aid Act 1988] and to regulation 23, nothing in Part II or in regulation 36 shall affect the power of a court, a judge of the court or of the registrar to make a legal aid order, whether an application has been made for legal aid or not..."

In order to determine therefore the legitimate ambit of the Registrar's powers under Regulation 10, we must, as the regulation itself dictates, go back to section 21 of the 1988 Act. It reads as follows in its material part:

"(1) Representation of this part of the purposes of any criminal proceedings shall be available in accordance with this section to the accused or convicted person, but shall not be available to the prosecution."

The question therefore at the end of that analysis comes to this: in the light of the Criminal Procedure (Insanity) Acts of both 1964 and 1991, and the position in which the appellant was at the time the learned Registrar purported to grant legal aid, could it properly be said he falls to be treated either as

an "accused" or "convicted person" within the true meaning of section 21 of the 1988 Legal Aid Act? The answer we arrive at with regret is "no".

First, it will be apparent by virtue of the very procedure under those Acts to which the appellant fell subject that he cannot fall to be treated as a convicted person. The whole purpose of the conclusion that he was under a disability is to exonerate him from any criminal conviction. Accordingly he is not and could not be characterised as a convicted person. That leaves only for consideration whether he could be described upon the proper construction of section 21 as a person "accused" for the purposes of the Registrar granting legal aid.

The reasons we were at pains a little earlier to read out as we did that section which invests the Secretary of State with the power in certain circumstances to bring back a person hitherto under a disability to stand his trial is this: if, in the light of the order made in this case, the Secretary of State had indeed the power to require, in the event the appellant recovered his mental health to direct that he stand his trial for this offence of theft, then we think it could be legitimately asserted that he falls to be treated as a person still under jeopardy of a criminal conviction for that offence. In those circumstances, it would certainly be arguable, at the very least, that he falls properly to be treated as a person, if not accused, under the threat of being accused of that offence. That would undoubtedly have fortified the Registrar in the exercise of his powers. But for the reasons we have already indicated, in the light of the form of order made here, the Secretary of State has no such power. His power is restricted by the expressed terms of the first schedule to the 1991 Act. Accordingly this appellant is not in jeopardy of ever now being prosecuted for this offence of theft.

An attempt has been made by Mr. Taylor, to argue that since section 15 of the Criminal Appeal Act of 1968 Act undoubtedly afforded the appellant a right to appeal in this particular case, it is necessarily implicit in that right that the legislature must have intended in an appropriate case he should be the recipient of legal aid. We are unable to accept that submission. It seems to us the obvious purpose of section 15 is to invest the appellant who has been the subject of a finding of disability and an adverse finding of fact to a right of appeal, which otherwise ostensibly he would not have. But we do not read that section as carrying with it any implication of itself of a right to legal aid.

Accordingly, and as we have indicated now more than once, with regret, we are satisfied that this appellant, at the time the Registrar purported to grant legal aid, was not either a convicted person or a person still accused of the criminal offence in question and, as such, section 21 of the 1988 Act and paragraph 10 of the 1989 Regulations have no application. Accordingly, he is not and was not entitled to legal aid and in so far as it is necessary the purported grant must be quashed.

MR TAYLOR: Given that the Registrar's purported order has been quashed, would your Lordships consider an application for costs out of central funds?

MR JUSTICE OGNALL: May we be referred to the provisions which give us that power?

MR TAYLOR: Having not come into court....

LORD JUSTICE McCOWAN: One possibility suggested to me is that you go first to the Registrar, and see whether he can find the means of reimbursing you.

MR TAYLOR: Your Lordship grants me leave to come back to this Court, if my efforts prove in vain?

LORD JUSTICE McCOWAN: That is right, you may, unless there is some plain right you can point to now, we let you do that.