England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINALDIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 27th June 2002

Lord Justice Longmore :

1. On 21st July 1999 the Criminal Case Review Commission referred to this court 4 convictions of Mr F.J. for conspiracy to steal, throwing petrol with intent to burn disfigure or disable, theft and murder. Those convictions occurred on 29th September 1976 when Mr J. was tried before Thesiger J and a jury. He was sentenced to 2 years, 18 years, 2 years imprisonment and life imprisonment concurrently on the respective counts of the indictment.
2. The Commission in its report singled out disturbing features which caused it to have doubts about the safety of Mr J.'s conviction and to refer his case to the Court of Appeal. These were (1) alleged failure by the police to disclose conversations they (the police) had with the deceased in hospital before he died; (2) the fact that the jury might have been misled by police questioning of Mr J. in interview when they put to Mr J. an incorrect version of the statement of a co-accused; and (3) the failure of an adequate defence case to be put before the jury as a result of Mr J.'s decision to dispense with the services of his lawyers and to represent himself. Pursuant to section 9(2) of the Criminal Appeal Act 1995, this reference is to be, and has been, treated as an appeal to this court. The first two features which concerned the Commission have now been abandoned by Mr J.'s fresh team of lawyers. The third ground has been considerably amplified and forms the subject of this judgment. Other grounds of appeal have been added to which it is in the event unnecessary for us to refer.
3. The facts of the case were as follows: the victim of the offences was Mr J S. He owned a newsagent/tobacconist shop at 228 Whitechapel Road and also had a lodging house in Mayflower Road, Stockwell. He lived over his shop. The appellant J. was a trusted friend, who managed the lodging house and helped in the shop. On Monday 3rd February 1975, in the evening, a Mr S., one of Mr J.'s two co-accused at trial, was driven by a second co-accused, Mr T. to the neighbourhood of the shop. S. had a jar of petrol with a cap on it, with some matches sellotaped to the side, and had also some matches sellotaped together. At about 6.30 pm S. entered the shop and threw petrol over S. and set him alight. Then he went away. The appellant was in the back room where there was a television. An ambulance was called to the shop and S. was taken to hospital. On 23rd February 1975 he died.
4. The prosecution alleged that S. was recruited by T., who was acting on the instigation of the appellant. The attack occurred after S. had drawn out a sealed parcel from a bank in October 1974. It was alleged that all 3 defendants agreed that S.'s money should be stolen (count 1). All 3 were parties to getting S. out of the way (so that the appellant could search the premises) by throwing petrol over him with intent to burn him (count 2). J. stole some money while S. was alive or after he was dead (and thus from his estate) (count 3). All 3 were responsible for the unlawful attack with petrol and flames which caused the injuries that led to S.'s death (count 4).
5. The Crown's case in outline was that the appellant was a trusted assistant to S. and was very close by when the attack took place. He was seen with T. shortly after the attack. The thieves would have needed to know the layout of the place and would have needed an inside accomplice. The dogs in the house at the time of attack did not bark and must have been under the control of Mr J.. Nothing seemed to have been stolen and, the prosecution alleged, since S. had apparently left empty-handed, the appellant must have been a party to what happened. He knew of the withdrawal of S.'s money and outsiders would not have known unless someone told them. The police did not find any money on the premises despite searching the premises in the company of Mr J. 2 days later. It would be expected that the appellant would be upset by the fact that his friend and employer had been attacked in this way and would give the police all the information in his power to lead to the detection and apprehension of the attacker. At the time of the attack he did not tell the police that he knew S. and T. or that they had propositioned him about a robbery. He spent significant sums of money on entertainment in T.'s company after the attack and the day after S.'s death was found to have £770 on him in cash. He claimed to be looking after it for S.. Even when arrests were made in December 1975, the appellant first said that he did not know S.. Later, in interview, he said that he did know S. and that S. and T. had propositioned him with regard to a theft or robbery at the shop, a proposition which he had rejected.
6. S. and T. both implicated Mr J. in their interviews on arrest; Mr J. said that they were framing him and that he had had nothing whatever to do with the attack which was a horrific assault on a trusted friend. He had no need to get S. out of the way since S. went out frequently in any event. A motion to quash the first 3 counts of the indictment was rejected by the judge, count 4 having been already been committed by the magistrates' court.
7. The case now presented by Mr Fitzgerald QC on behalf of the appellant is that there came a time, whether by or at the beginning of the trial or after the close of the prosecution case and during the presentation of his co-defendants' cases, when the appellant who had always displayed certain paranoid characteristics, started to suffer from a paranoid psychosis which prevented him from effectively participating in his trial by reason of his mental state. It is said that in law he was unfit to plead. The background to this assertion is as follows:

(1) The appellant was assessed before trial by two psychiatrists:

(a) Dr Daphne Sassani, in a report dated 26th May 1976, found the appellant had no sign or symptom of mental illness nor was there any evidence that he suffered from any illness at the time the crime was committed. She continued:

"Although he has given me some information, he has not been fully co-operative, and has indicated there are some matters he will not discuss."

(b) Dr Bearcroft, in his report dated 25th June 1976, found him "fit to answer the charge" but also stated:

"On examination, he was not very co-operative. It was very difficult to obtain reliable facts and he got agitated, claiming that he was held under false pretences and that it was all a 'frame-up'. He claims that there are matters known to authority which have not so far been disclosed, but which will be revealed in the court. Much of this seems to be related to suggested IRA activities. Mention of the other men held with him gave rise to a great deal of invective against them, and he believes that he is unjustly blamed by them and he is innocent. Much of what he says does not seem very logical or coherent and he seems to nurse a number of grievances and to be overburdened with frustration."

(2) On 14th September, the trial started and the motion to quash counts 1-3 was dealt with. This trial had to be aborted due to the illness of a juror. The appellant was represented by Alan Campbell QC (now Lord Campbell of Alloway QC) and Mr M P Singer and their instructing solicitors.

(3) On 16th September, the trial started with a fresh jury.

(4) On Monday 20th September 1976, as the court record recalls, the appellant dispensed with his lawyer's legal services:

"It was announced that the defendant J. had decided to dispense with the services of his legal advisers and to conduct his defence in person, in consequence of which the hearing was adjourned to give the said defendant an opportunity of perusing the relevant documents."

This has been supplemented by a statement from Lord Campbell of Alloway in which he records that Mr J. gave no reasons for this dismissal, that the judge gave him the opportunity of instructing new solicitors and counsel and that he declined to do so. By then a number of prosecution witnesses had been called on 16th and 17th September. There was no other business on 20th September.

(5) A note taken by a representative of the Metropolitan Police Solicitor reads as follows, as to what happened after the appellant dismissed his lawyers on 20th September:

"After nearly all the evidence had been called, J. dismissed his legal representatives and started to defend himself. He asked leave to recall certain prosecution witnesses and this was granted. He then proceeded to make allegations of a conspiracy against him by, inter alia, his co-defendants and his solicitor, the police and certain witnesses. He also said that he wanted to call about twenty witnesses on his own behalf. These included his former solicitors (Peter Hughman and David Jonas) and the deceased's nurses."

(6) On 21st September 1976 certain witnesses, including Detective Inspector Stevens and Detective Sergeant Colyer, were recalled for the appellant to cross-examine them again. Some time around then, the appellant began to be held on a rule 43 regime at the prison at his own request and he was recorded by Prison Officer Dennis as being "very disturbed and frightened for his own safety", and to have "kept mumbling about the IRA and how they were going to kill him" (report of 6th December 1976).

(7) Mr J.'s subsequent behaviour at the trial was sufficiently odd to call for some comment from the judge since the judge instructed the jury (at page 90D of the summing up):

"In view of J.'s behaviour I think perhaps I ought to tell you this. You need not worry about his state of mind in itself. The practice is that if there is any doubt about the fitness of a prisoner to stand his trial and give instructions to counsel and solicitors because he is mentally afflicted, a report is made to the court and a jury is sworn to try whether he is fit to be tried. That has not occurred in this case so you must assume that he is perfectly fit to be tried."

In fact two such reports had been made, as set out above, in May and June 1976.

(8) The prosecution case closed on Wednesday 22nd September. The case for the co-defendant, S., was then opened.

(9) On Friday 24th September the appellant gave evidence. Although cross-examination on behalf of the co-defendants had begun, there came a time when he refused to be cross-examined further. He never submitted to cross-examination from the Crown. On 25th November 1976, he alleged that on 24th September there had been an attempt to poison him by the prison officers at the Central Criminal Court. One of these officers – Kirkbridge – denied this allegation in his report of 6th December 1976 to the governor and explained it in terms of the appellant's mental state at the time of the trial:

"I think you should know that this prisoner was on a self-imposed Rule 43, and that he made several remarks which led me to believe that there was something wrong with him mentally. He was very closely watched during his trial as threats were made against him by other prisoners, he was fed on his own and did in fact collect his own meals, after which he was locked up."

(10) Officer Dennis equally denied that the appellant had been poisoned, and noted that no such complaint had been made at the time. But he too drew attention to the appellant's disturbed mental state:

"On instructions from PO Summers i/c the CCC, I placed J. on a form of Rule 43, it was also his request that he be locked up on his own, he was at that time very disturbed and frightened for his own safety, he kept rambling about the IRA and how they were going to kill him, he seemed to have no friends within the inmate community who tended to shun him if ever they came into contact – ie meal times, etc."

(11) On 29th September the appellant was convicted. On being asked whether there was anything he wanted to say, he said:

"I have said it all, my Lord. I wish to exonerate the police or anyone else concerned with this except those two there. I was ten years out of prison and the moment I meet them I am back here after ten years. I am innocent of this murder."

(12) On 30th September 1976 Dr Speed, a prison medical officer, made an initial assessment of the appellant in prison. She described his account of the offence as "altogether a most unlikely story" and described him as "a . . . devious individual" who was "amoral" and "now full of anguish for himself". She concluded there was no evidence of mental illness, no suicidal thoughts, and recommended placement in an ordinary location.

(13) On 8th October 1976 Dr Speed records of Mr J. "says he is frightened now that T. is on the wing and there is no one he can trust (!) and he is whining about the conspiracy and false evidence that got him a life sentence".

(14) On 8th November 1976 the appellant said he believed his life was threatened. The following day he expressed concerns that his legal aid was being refused, and also that he had been given a razor blade when he already had one – which led him to believe that he was being encouraged to commit suicide. Despite these signs of paranoia, Dr Speed concluded that he was not depressed and there was no mental illness. She also stated that the appellant is a "typical anxious Irishman who doesn't like his life sentence [twenty years min] and cannot cope with his guilt – hence stories ++".

(15) On 25th November 1976 the Appellant wrote to the prison governor the letter to which we have already referred; it set out certain allegations. These included:-

(i) That his wife had promised him to come to court on 21st September; that his wife did come to court on 21st September but that she was taken out of the public gallery; but that he was handed a note by the judge saying that his wife had been in court that day, but had left rather hurriedly saying she did not want to give evidence. He had then refused to go back into court until he had seen his wife who said that the judge's claim that she did not want to give evidence was rubbish.

(ii) That when he went back to his cell that day, he was given a can of water – and that, after drinking it, he experienced "something which you cannot describe here on paper, the effects lasted about four minutes, it was very frightening". He had no doubt that an attempt had been made to poison him.

(iii) That he had asked the judge for protection, and "did not take any more part in the trial"; he said further that, when he addressed the jury on the final day, "I told them not to acquit me under any circumstances, I was so frightened but to give me a trial, but properly represented". He had not, of course, told the jury not to acquit him, quite the opposite.

(iv) That between 24th September and the final day (the 29th) a hole was drilled in the top part of the wall in his cell about ten inches from the ground, so that he could be gassed.

(16) Considerable concerns were expressed about the appellant's mental state by staff including Assistant Governor Marsh during the latter part of 1976 – despite Dr Speed's scepticism.

(17) Eventually Dr Speed's insistence that there was nothing wrong with him was overruled by the principal medical officer and the appellant was transferred to the hospital wing and prescribed antipsychotic medication.

(18) Throughout 1977 repeated medical entries confirm the presence of persisting paranoia, and antipsychotic medication was prescribed.

(19) In 1978 a diagnosis of paranoid schizophrenia was made and consideration was given to Mr J.'s transfer to Broadmoor. On 27th February of that year Detective Superintendent Atterwell made a statement, in response to various allegations being made by Mr J. at that time; he said that his performance in court "no doubt led to his conviction. He accused the prosecuting counsel Mr Mathew, his own defence solicitor, the defence solicitors for the other accused and finally the judge of being involved in the conspiracy to convict him of murder."

(20) The appellant was in due course considered to have benefited from the "calming effect" of antipsychotic medication and to have improved by later in 1978. He was found to be showing no evidence of mental illness when he was assessed at Parkhurst in 1989.

8. It should be added that Mr J. applied for leave to appeal but his application was rejected by the single judge. On 7th November 1977 the Full Court refused a renewed application for leave to appeal. No record of the proceedings before the Full Court has survived.
9. Since the date of the reference, both the appellant and the Crown have instructed distinguished psychiatrists, Professor Kopelmann and Dr Joseph respectively, both Fellows of the Royal College of Psychiatrists. They have produced reports and we gave leave for them to give evidence before us pursuant to section 23 of the Criminal Appeal Act 1968, since it appeared to us that their evidence might afford a ground for allowing the appeal and their evidence was not (and could not have been) available at the trial. They reached a considerable amount of common ground; they were both satisfied that Mr J. was suffering from a paranoid psychosis at least from 24th September and that he was, at least from that date, unable to participate effectively in his trial even while he was representing himself. This was at a stage of the trial when Mr J. was giving evidence and still had to make a speech on his own behalf. As we have said, although he gave evidence, he declined to be cross-examined.
10. The difference between the psychiatrists related to the time when such psychosis began. Professor Kopelmann considered that Mr J. was psychotic and thus unable to participate at his trial effectively at least as from the time when he dismissed the entirety of his legal team. Dr Joseph accepted that at this time he was suffering from paranoid disorder but, he said, Mr J. had not in his view at that stage "tripped into psychosis".
11. We do not consider that this difference between the psychiatric witnesses is crucial to our decision since from Mr J.'s point of view critical parts of the trial were still ahead of him on 24th September viz presentation of his own case, his evidence, speeches (not least his own) and the summing up. We record, however, our own preference for the view of Dr Joseph that, before 24th September, Mr J., though exhibiting signs of paranoid disorder, was not suffering full blown psychosis. Indeed, it may well have been the fact that he was representing himself that brought on the psychosis.
12. The reasons why the expert psychiatric witnesses concluded that, at any rate, by 24th September, Mr J. was suffering from paranoid psychosis were as follows:

(1) that, whereas before 24th September, his complaints eg of conspiracy and persecution were of a generalised nature, he was then and thereafter much more specific. He said, for example, that Mr John Mathew (appearing for the prosecution) was part of a conspiracy against him; this was apparently because Mr Mathew had represented a particular individual known to Mr J.; the judge was said to be part of the conspiracy because he had handed down for transmission to Mr J. a note in relation to Mr J.'s wife which showed that he (the judge) accepted (or even arranged) the fact that his wife was kept away from court so that she could not give evidence on Mr J.'s behalf. The truth of that matter was that his wife did not wish to give such evidence. Moreover Mr Johnson gave an exact date for the beginning of his belief that he had been poisoned by the police officers and, indeed, that a hole had been made in the wall of his cell, 24th September;

(2) that, having said he wanted to call numerous witnesses, Mr J. in fact did not do so, merely cross-examining further some witnesses already called;

(3) that the prison officers, 3 months after the event, said that Mr J. was behaving oddly and was mentally ill; this was effectively confirmed by Detective Superintendent Atterwell;

(4) that the judge himself had considered it necessary to warn the jury about the oddity of his behaviour.

13. Having come to their conclusion that Mr J. suffered from paranoid psychosis during the trial, the experts both concluded that he was mentally ill and was thus unfit to plead in the sense that (whatever his state of mind when actually tendering his plea at the beginning of the trial) he was unfit to take or participate in his trial at least from 24th September. It is well settled that the concept of fitness to plead embraces both the time of plea and the duration of the trial, see R v Sharp (1957) 41 C.A.R 197. As the current edition of Archbold puts it:-

"The questions put to witnesses called to give evidence upon this issue are based upon the test enunciated in R v Pritchard (1836) 7 C&P 303 and deal with the question whether the defendant has sufficient intellect . . . to understand the evidence and to give evidence."

The 1976 edition of Archbold was in almost identical terms, see R v Berry (1978) 66 CA.R. 156, a decision of this Court of which, as it happens, Thesiger J was a member.

14. We recall that the doctor who examined Mr J. at the time most close to the onset of his paranoid psychosis, namely Dr Speed, considered that he was not suffering from any mental illness. That is a matter by which we have been troubled. She is still alive but the Crown decided not to call her. Professor Kopelmann and Dr Joseph were both satisfied in their expert view that she was wrong to make the diagnosis that she did. We therefore accept that communal opinion and conclude that, as it now turns out, there came a time in the course of the trial when Mr J. could not effectively participate in it.
15. In a careful submission on behalf of the Crown, Mr Victor Temple QC submitted:

(1) that the court should be cautious about accepting the views of psychiatrists about the mental health of a person on trial 26 years ago especially since such opinions had to be largely (if not entirely) based on what the appellant himself now told the psychiatrists; for this submission he relied on the speech of Lord Hobhouse in R v Pendleton [2002] 1 WLR 72 and paragraphs 98-100 of the judgment in the recent appeal in R v Hanratty;

(2) that it was difficult if not impossible to distinguish those parts of the appellant's behaviour which showed paranoid disorder from those which might show full blown paranoid psychosis;

(3) that neither doctor could state the extent of Mr J.'s mental impairment so that it was open to the court to find that, even if there was impairment, it was not significant;

(4) that in a case where the appellant had brought about his own predicament by dismissing his legal advisers, we could take into account the strength of the prosecution case as summarised in our narrative and decide that the conviction was safe; and

(5) as a fallback position, that we should invoke section 6 of the Criminal Appeal Act 1968 as amended and state that we are of the opinion that the case is not a case in which there should have been a verdict of acquittal but a case in which there should be or should have been findings that the defendant was under a disability and did the act charged against him. It would then follow that Mr J. showed be remitted to mental hospital pursuant to the section.

16. Grateful as we are for these submissions we cannot accept them. This court is naturally cautious about accepting expert opinions formed long after the event which are contrary to expert opinions formed at the time, but it can only act on the evidence available to it; if that evidence is, indeed, persuasive it has to be accepted. We do not agree in any event that the psychiatric evidence in this appeal is based largely on evidence from the appellant himself, since there is a number of sources of evidence, independent of that of the appellant, on which the doctors have relied. Those sources, such as the prison officers, Detective Superintendent Atterwell, the representative of the Metropolitan Police Solicitor and the judge himself are, moreover, contemporary or nearly contemporary. Lord Hobhouse in his speech in Pendleton was, moreover, urging caution about the evidence of psychologists in relation to confession evidence; he did not have in mind the evidence of medically qualified psychiatrists on the issue of fitness to plead.
17. As for the Crown's second and third submissions, the position is that both doctors were, in this case, able to disentangle the elements of paranoid disorder from the elements of paranoid psychosis. Nor is it correct to say that they were unable to state the extent of Mr J.'s impairment. In his first report of 5th February 2002 Dr Joseph stated in terms that at the time of his trial:-

"the appellant was suffering from mental illness, namely a paranoid psychosis which was of sufficient severity to have significantly affected his ability to conduct his own defence . . . it is likely that he was suffering from a paranoid psychosis which started at some stage during his trial."

Dr Joseph's later qualification was that the onset of the psychosis probably began only on 24th September, but he made no qualification to his evidence as to the extent of the psychosis when it arrived.

18. The Crown's fourth submission is, with respect, misguided. However strong the Crown case might be on the facts, the jury should, as it now turns out, not have proceeded to a verdict at all while Mr J. was mentally unfit and unable to participate effectively in his trial. It is for that reason that the conviction is unsafe and must, in our view, be quashed. The strength (or otherwise) of the Crown's case is nothing to the point.
19. There remains the question whether section 6 of the 1968 Act should be invoked. This section requires the Court of Appeal to order that an appellant be admitted to mental hospital where the Court:-

"On the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved are of the opinion

(a) . . .

(b) that the case is not one where there should have been a verdict of acquittal but there should have been findings that the accused was under a disability and that he did the act or made the omission charged against him."

20. Mr Temple submitted, once again relying on the matters we have set out in paragraph 5 above, that the case against J. was so strong that the court should be of the opinion that the case was not one where there should have been a verdict of acquittal but there should now be findings that Mr J. was under a disability and did the act charged against him. We received no argument on the question whether it is in law open to us now to apply section 6 of the 1968 Act, which was not in its current form in 1976. But we have come to the conclusion that, despite the apparent strength of the Crown's case, this court cannot, in any event, say with confidence that there should be a finding that Mr J. did the act charged, let alone that there should not have been a verdict of acquittal. There are now no transcripts of the prosecution evidence. There was some debate whether the court could consider the evidence of the co-defendant S. who had heavily implicated Mr J. or whether the court's inquiry should be confined to the evidence of the prosecution and the individual accused, if he gave evidence. We consider that it would be open to the court to consider the evidence of a co-defendant for this purpose but there is no transcript of Mr S.'s evidence either. In these circumstances it would be inappropriate for us now to express the view that the case is one where there should not have been a verdict of acquittal or that there should have been or should be a finding that Mr J. did the act charged against him.
21. We add that the section is, in any event, somewhat difficult to apply to a defendant who is accused not of actually doing that act which led to the killing (in this case the dousing of Mr S. with petrol) but of instigating, and being complicit in, the killing. In such cases, of which this one, it is not easy to disentangle the actus reus and the mens rea as the statute requires the court to do.
22. Mr Fitzgerald QC for Mr J. had a yet further point that it would, in any event, be quite wrong to commit Mr J. to mental hospital to await a review of his case by a mental health tribunal when, on the evidence before the court, he had recovered from his paranoid psychosis by late 1978 or at least 1989. To the point that that was what the statute required once the court was of the opinion that there should not have been an acquittal but there should be a finding that the accused did the act charged, he responded that such an interpretation would conflict with Article 5 of the European Convention on Human Rights which only authorises the detention of persons of unsound mind if they are of unsound mind at the time of detention.
23. It is unnecessary for us to express any view on that argument and we do not do so. For the reasons we have given, however, we decided yesterday that Mr J.'s conviction was unsafe and must be quashed.

Reflections

This is a most exceptional case. It is, of course, regrettable that Mr J. should have served 26 years in prison as a result of what we have had to conclude is an unsafe verdict. It must, however, be remembered that, if the judge at trial in 1976 or the Court of Appeal or 1977 had received the evidence which we have now received, that court would, pursuant to the Criminal Procedure (Insanity) Act 1964, have sent Mr J. to a mental hospital in the hope that he would recover from his mental illness. If, as appears to have been the case, he had recovered by some time in 1978, the Secretary of State would in all probability then have remitted him to prison for the purposes of trial, pursuant to section 5(4) of the 1964 Act; he would then have been properly tried and a jury would have determined whether he had indeed committed the offences with which he was charged. No such trial is now possible; although we are not now of the opinion that the case is not one where Mr J. should have been acquitted nor that there should be a finding that Mr J. did the acts charged, the position might well have looked very different in 1978.

The real reason why this case has gone so badly wrong for the appellant is that he decided, for no apparent reason, to dismiss his solicitors and counsel on Monday 24th September 1976 before the close of the prosecution case. His legal advisers, if he had had them, would have been bound to consider Mr J.'s state of mind as the trial progressed and if, while having the benefit of that advice, he had shown signs of passing from a state of paranoid disorder to one of paranoid psychosis, his advisers should have applied to the judge for a fresh psychiatric examination of their client. Of course it is also one of the many responsibilities of Crown counsel and the judge to consider the option of a psychiatric examination during the trial if there is evidence that it is necessary; in the nature of things, however, signs of psychosis are much less likely to be apparent to Crown counsel or the judge than to a legal team whose dominant concern is that of the defendant whom they are instructed to defend. We do not find it possible, these many years later, to criticise Crown counsel or the judge for not intervening in the trial and requesting or ordering a further psychiatric examination of the appellant. We can only say that, in the event, Mr J. was unfit to plead and no verdict in respect of him should have been then returned.

Lastly, it is a matter of legitimate concern that Mr J. should still be in prison after 26 years when the learned judge's recommendation was that he should serve 20 years of his life sentence. We cannot speculate as to the reasons for this but, as we said yesterday, since, as the Crown accepts, any retrial is now impossible, he can be discharged.