England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HIS HONOUR JUDGE COLTART
T20060525

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2008

Lord Justice Thomas:

The course of the proceedings

1. On 7 May 2006 the appellant was arrested and charged with the offence of child abduction contrary to s.2(1)(b) of the Child Abduction Act 1984. It was alleged that on that same day, 7 May 2006, he had detained a child, CM, under the age of 16 "so as to keep him out of the lawful control of [MT], a person entitled to lawful control of the child". MT was the child's mother. He was remanded into custody and held at Lewes Prison; he was committed for trial to Lewes Crown Court on 5 June 2006. At the plea and case management hearing on 27 July 2006 the issue of the appellant's fitness to plead was raised.
2. The appellant was then a man aged 50. In 2003 he had been diagnosed as suffering from Huntington's Disease. This is an uncommon but progressive hereditary degenerative disease of the central nervous system. It brings on chorea (involuntary jerking movements and loss of control of limbs) and progressive mental impairment. In the appellant's case the disease had had a progressive impact, despite the support he had had from the Huntington's Disease Association and the medical practitioners that were treating him; a report on his condition, the difficulties of managing his disease in prison and the need for specialist care was made in a report on 31 May 2006 by Ms Susan Young an experienced care adviser with the Huntingdon's Disease Association.
3. Whilst on remand at Lewes Prison he was seen by three psychiatrists in relation to the issue of his fitness to plead. On 17 July 2006 he was seen by Dr Jessica Bramham, a clinical neuro-psychologist at the Maudsley Hospital and Department of Psychology at the Institute of Psychiatry and on 6 September 2006 by Dr Dene Robertson, a consultant psychiatrist at the Bethlem and Maudsley Hospital and a lecturer at University College London; the report of Dr Robertson was undated but appears to have been lodged with the court on 10 November 2006. On 29 December 2006 he was seen on behalf of the Crown by Dr Noon, a consultant forensic psychiatrist in East Sussex.
4. Each was of the opinion that the appellant was not fit to plead and there was no prospect he would become fit to plead in the light of his illness; Dr Robertson concluded that the appellant would not be able to instruct solicitors, understand the evidence or take part in his defence.
5. On 24 January 2007, the matter was again listed at Lewes Crown Court for the extension of custody time limits; the appellant's mother had written to the judge complaining of the delay. It came before HH Judge Brown DL who decided that progress should be made and decided to determine the issue of fitness to plead under the Criminal Procedure (Insanity) Act 1964 as amended. As the reports were in agreement and the court was entitled to proceed under s.4(6) of the Act on the basis of written evidence, the appellant was found unfit to plead at that short hearing.
6. Because the appellant had been long detained in Lewes where the psychiatric reports made it clear he was subjected to unpleasant treatment by his fellow prisoners, Judge Brown commendably directed that the trial of the issue as to whether the appellant had committed the act of abducting CM be heard as soon as possible. It is not clear what detailed consideration was given as to the discharge of the duty expressly placed on the court as to the appointment of counsel to represent the appellant under s.4A(2) in circumstances where the appellant could not give instructions as to the conduct of the trial of the issue and the putting of the case for the defence. We shall return to the importance of this duty at paragraph 34.iii).
7. That issue was heard before HH Judge Coltart and a jury on 30 and 31 January 2007. The jury found that he had committed the act with which he was charged. A decision as to the Orders to be made was adjourned. In fact no Orders were made until 20 September 2007. This significant further delay became less important after he appellant had been removed from Lewes Prison and admitted on 15 May 2007 to a medium secure psychiatric unit. That move was a result of an order made at the Crown Court on 17 April 2007 that the appellant be detained in a hospital within 28 days of the order; as the Governor of Lewes Prison observed in a letter to the court, he was transferred from the prison within 28 days of that order. In the light of the psychiatric reports, HH Judge Niblett made a hospital order on 20 September 2007 under s.37 of the Mental Health Act 1983 with a restriction order under s.41 without limit of time.
8. It has been a matter of concern to this court that the appellant was detained at Lewes Prison for 12 months. Although he was at the health care unit for the vast majority of the time, no satisfactory explanation was given to us in response to enquiries we directed be made as to why his detention for this long period of time had been in a prison. It appears that attempts were made soon after his arrest by solicitors acting for the appellant to transfer him on stringent bail conditions to a specialist home, but this failed as funds were not available from the local authority; we understand that the defence thereafter continued to press for his condition to be properly addressed. We were also told by the CPS custody time limits were extended on several occasions because of delays in obtaining defence psychiatric reports, but it does not appear to us that this was the cause of the delay; this in any event provides no excuse for his detention in prison. Whatever the reason for the delay in the matter coming to trial and for the appellant's detention in a prison during the period of 12 months (as no one concerned would provide any proper explanation save to say it was not their fault), what happened to this appellant is no credit to the criminal justice system. Indeed, save where the judge expedited the hearings, there is a risk of the perception that it displays certain indicia of a lack of concern for a man suffering from a devastating hereditary illness developed late in life. We hope that lessons will be learnt from what has happened in this case.
9. The appellant appeals, by leave of the Single Judge, against the verdict of the jury that he did the act charged and renews his application for leave to appeal against the hospital and restriction orders made.

The evidence in relation to the issue as to whether he did the act charged

10. It is clear from the papers provided to us that there had been concern about the appellant's relationship with young boys of a post-pubescent age. Concern had been heightened in relation to CM, a child with considerable learning difficulties; there had been allegations of sexual misconduct by the appellant in relation to CM and a written notice had been served on the appellant forbidding him from seeing CM on 3 May 2006, three day before the events which gave rise to the matters with which the appellant was charged. None of that was adduced in evidence before the jury, but it is important background to the understanding of the decision to prosecute in this case; the appellant was understandably perceived by the police and the CPS to be a real risk to children.
11. The evidence before the court was that of MT (CM's mother) and WM, CM's father (from whom the mother was divorced); a statement of police officer Constable Carruthers was read.
12. The evidence of the father was as follows:

i) He shared with CM's mother the right of control over CM.

ii) On 7 May 2006 he had taken CM and his cousin to Brighton Pier because CM was staying with him for the weekend.

iii) On the pier they met the appellant; at CM's request they went back to the appellant's flat.

iv) CM did not want to leave the flat when the father thought it time to leave. The father left him there, taking the cousin with him. The father telephoned the mother and told her that he had left CM at the appellant's flat. This was at about 1 a.m. on 7 May 2006.

13. The mother's evidence was that:

i) She telephoned the police immediately.

ii) Later, at a time the mother could not specify but it was some time between 1 a.m. and 6 a.m., CM telephoned. There was no evidence as to what CM said to her. The appellant had taken the telephone away and told her that he was in love with CM, they were going to be together, he would not let CM out of the flat and was keeping him. She replied, "No fucking way. He is coming here." The appellant had then said no and put the telephone down.

iii) She then telephoned the police.

iv) She had care with the father and had retained a right of control over CM.

14. Police Constable Carruthers had provided a statement which was read to the jury. His evidence was that he had gone to the flat with four other officers at about 6 a.m. The door was opened by CM. They found the appellant sitting in the living area wearing a pair of trousers. He was arrested for child abduction, handcuffed and taken away.
15. No evidence was called by the defence. Counsel at trial made four applications to call the evidence of Ms Young, the experienced care adviser with the Huntington's Disease Association. These applications were made on various bases including that the jury needed to be told why the appellant was unfit to plead, that his illness was relevant to the telephone conversation between the appellant and the mother, and that the jury should have evidence of the effect of Huntington's Disease on the appellant's intentions and what he meant. The Judge refused each and every application; it was by no means clear to him (or, on reading the transcripts, to us) what the basis was on which it was contended that the evidence was admissible. It plainly was not admissible as to the appellant's state of mind as the Crown did not have to prove mens rea or intention: see R v Antoine [2000] 2 Cr App R 94 approving the decision of this court given by Judge LJ in AG's Reference No 3 of 1998 [1999] 2 Cr App 214. Furthermore, no statement had been taken from Ms Young for the judge to consider until the last of the four applications was made; the statement set out Ms Young's evidence that she had never seen the appellant being confrontational, but it was not made clear to the judge as to the basis on which that evidence was said to be relevant. The fact that this fourth application was made just before counsel were to address the jury was regrettable to say the least.
16. The Judge then summed the case up to the jury very briefly. He explained to the jury what their duty was as to the finding of whether the appellant had committed the act and summarised the evidence to the jury. Having done so he directed the jury that

i) in part because of the evidence and in part because the indictment charged the appellant with keeping him out of the lawful control of his mother, there could not be any suggestion that the child was detained so as to keep him out of the lawful control of the mother until the telephone call.

ii) There was evidence on which they could conclude that the mother retained her right to control CM.

iii) The issue which the jury had to consider was put in the following terms:

"So, members of the jury, the first question for you is whether there was such a telephone call. If there was not then that is the end of the Crown's case and you would not need to consider the matter any further. But if you are sure there was a telephone call between the two of them then you have to go on to consider what was said. If you are sure that the mother's version is reliable what does it tell you? Does it prove, as the Crown suggest, that the defendant by his actions was detaining Charles, or at least contributing in a more than minimal way to that detention, and I say it in that way because it is quite obvious that Charles, certainly at an earlier stage, was expressing the view that he wished to stay there himself, so this was not, if it was detention at all, detention against Charles' will."

17. The jury asked questions after their retirement about various telephone calls; one of the answers is the subject of a complaint on behalf of the appellant because the judge referred to the witness statement of MT, though no reference had been made to it when MT had given evidence.
18. The verdict returned by the jury was unanimous.

The case for the Crown

19. Apart from the complaint in relation to the judge mentioning the witness statement of MT, the principal ground of the appeal related to the judge's refusal to allow the appellant to call the Regional Care Adviser during the course of the trial. Ms Young of the Huntingdon's Disease Association signed a witness statement on 27 July 2007 which was prepared pursuant to the direction of single judge and an application was made to call this witness under s.23 of the Criminal Appeal Act 1968.
20. Before the appeal was opened before us, we raised with counsel for the Crown the question as to what act was said to constitute the abduction – a point not raised in the grounds of appeal. We gave counsel time to consider this question. When the appeal was opened before us, we invited counsel for the Crown to set out his contention as to the act that constituted an abduction. It was as follows:

i) The offence under s.2 of the Child Abduction Act 1984 was committed if a person

"without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen— "

(a) so as to remove him from the lawful control of any person having lawful control of the child; or

(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child."

ii) The case of the Crown was that the appellant had detained CM so as to keep him out of the lawful control of his mother; detention was defined in s.3 (c):

"a person shall be regarded as detaining a child if he causes the child to be detained or induces the child to remain with him or any other person"

iii) The evidence of the mother, as set out at paragraph 13 above, was that CM's mother had had a call from CM during the night; the appellant had taken the phone and the mother had said she wanted him back. The appellant had said he would not let CM out of the flat and was keeping him there. It was therefore open for the jury on the evidence to consider under s.3(c) whether the appellant had detained CM by inducing CM to remain with him through the words used in the conversation.

iv) As it was likely that CM was present when the appellant said he would not let CM out of the flat and was keeping him there, it could be inferred by the jury that his words had been heard by CM and had induced CM to remain with him.

21. Counsel told us, in his oral submissions, very candidly that the case had not been put that way to the judge; he then accepted that the way in which the case was summed up to the jury was not in accordance with the way in which the Crown put the argument to us. As set out at paragraph 16.iii) above, the judge had summed up the case to the jury simply on the basis that if they were satisfied that there had been a telephone call then it was open to them to find that the defendant was detaining CM by his actions.
22. We formed the view that we should invite further submissions from counsel for the Crown so that we could consider whether the summing up was adequate given the way in which the case had developed before us, as the point had not been taken in the grounds of appeal.
23. We also tried to ascertain what the current position of the appellant was, as there was nothing in the written materials before the court to indicate what it was. We were helpfully told by his social worker and Ms Young of the Huntington's Disease Association that there did indeed exist civil orders in respect of the appellant. No copies had been provided to us.
24. In the circumstances we therefore decided to adjourn the matter for further written argument so that we could consider whether, on the basis of full submissions by the Crown, the summing up was adequate in the light of the way in which the case had been advanced to us by the Crown. We also directed that counsel experienced in mental health issues be assigned by the Registrar to put the case for the defence on the appeal in discharge of the court's duty under s.4A(2) of the Criminal Procedure (Insanity) Act 1964.

The direction to the jury

25. We have set out in paragraph 20 above, the way in which the Crown explained their case to us at the oral hearing. In the Crown's written submissions it was contended that in the passage which we have set out at paragraph 16.iii), the judge gave a sufficient direction to the jury.
26. We do not agree. In our view, if the case had been put to the judge in the way in which it was explained to us (and that was the only basis upon which the Crown could have advanced a case), then it was necessary for the judge to have given the jury a much more careful direction.

i) First the judge would have had to point out to the jury that they had to be sure as to the precise words spoken. CM had been left with the appellant by his father in the middle of the night; the precise words relied on as amounting to an inducement to the child to remain with him in such circumstances were important.

ii) Second they would have to be sure that CM had heard and understood the words spoken by the appellant to the mother over the phone, as those words were the only matters relied on as constituting the inducement to CM.

iii) Third they would have to be sure that the words were the effective cause of the child remaining with the appellant and not returning to his mother. Such a direction would have been necessary in the light of two decisions of this court. In R v A [2000] 1 Cr App R 418 (at page 424), this court held that a person took a child within the meaning of the Act if his actions were an effective cause of the child accompanying him; the consent of the child was irrelevant. In R v Leather (1994) 98 Cr App R 179, this court held that no spatial or geographic element was involved; the question was whether the child was deflected by some action of the appellant from what he would, with parental consent, have been doing.

27. Unfortunately, the jury were given no direction on the only way the case could be put for the Crown on the facts of the case where:

i) CM had been left with his father with the appellant in the middle of the night.

ii) CM had obvious learning difficulties

iii) CM had been allowed to speak to his mother

iv) CM opened the door to the police when they arrived

v) There was no direct evidence that CM had heard the conversation and no direct evidence that the words had had any effect on him.

The direction to the jury that if they were sure that the mother's words were spoken, then they had to consider whether it proved that the appellant was by his actions detaining CM, omitted entirely the essential element of the Crown's case that it was the words of the appellant (and not his actions) which had induced CM to remain with him. We cannot criticise the judge for the way in which he summed the case up. It appears that the case was never put in the way in which the Crown set it out for us on this appeal. If it had been, then the judge would no doubt have given the jury the careful and tailored direction to the jury we have outlined. It was plainly insufficient to have directed the jury in the way in which we have set out. As this was the only issue before the jury and as the way in which the case was advanced was never explained to them, in our view their verdict that the appellant did the act with which he was charged was unsafe and must be quashed.

The application to admit the evidence of Ms Young

28. At trial counsel putting the case for the defence sought, as we have set out at paragraph 15, to call Ms Young to give evidence in relation to the effect on the appellant of Huntingdon's Disease. It is clear from the transcripts that counsel did submit that the evidence was relevant to the telephone conversation on the basis that knowledge that the appellant was suffering from Huntingdon's Disease was relevant, but that relevance was stated to be in relation to his problem solving abilities. As we have set out at paragraph 15 above when the issue of the appellant's inability to be confrontational was raised just before counsel were to address the jury the relevance of the evidence was never explained to the judge. Furthermore that was one submission amongst many and it is not the least surprising, given the way the matter proceeded, that the submission was not refined by counsel so that it could be considered properly by the judge in the light of a proper statement from Ms Young.
29. However, in the written submissions we directed be filed from additional counsel appointed by this court pursuant to its duty under s.4A(2) of the Criminal Procedure (Insanity) Act 1964, the basis on which it was sought to adduce the statement of Ms Young dated 27 July 2007 (to which we have referred at paragraph 19) was made clear. It was submitted that, as the appellant could not give evidence, then the jury should have had before it evidence to challenge the mother's account of the telephone conversation; it was Ms Young's evidence that the appellant was never confrontational, as he agreed with everything that was said to him; he was unlikely to have made the replies alleged because his cognitive disability impaired his ability to give spontaneous replies. It was submitted that the evidence was admissible as there was no other way in which the mother's account of the conversation could have been challenged. We were asked to take into account the observations of this Court in R v M (KJ) [2003] 2 Cr App 322 at page 344 that such cases were cases where:

"being unfit to plead, the defendant would have no realistic opportunity of going into the witness box and defend himself, nor to give coherent instructions to his advisers."

30. In view of the conclusion which we have reached in relation to safety of the verdict in the light of the summing up, it is not necessary for us to express a view on this cogent submission; nor is it right for us to do so without the benefit of argument from the Crown on this submission. We do not consider any useful purpose would be served by adjourning the matter again for such submissions from the Crown as the issue would be academic and it would result in yet further delay to the resolution of the position of the appellant.

The position of the appellant

31. It follows that the finding in the verdict must be quashed and a verdict of not guilty substituted. A re-trial is not possible under the terms of s.16(4) of the Criminal Appeal Act 1968; the sub-section provides that the court must, in addition to quashing the finding that he did the act, direct a verdict of acquittal be recorded. This was not a case where there was any procedural irregularity which would permit a venire de novo: see R v O'Donnell [1996] 1 Cr App R 286, R v Hussein ( 16 December 2005 reported at [2005] EWCA Crim 3556 and 5 May 2006, not reported under any reference).
32. In the light of our concern for the appellant's welfare and for the public interest as no retrial is permitted, we asked, as we have set out, for detailed information about the appellant's current status.
33. The appellant is also detained under s.3 of the Mental Health Act 1983; an assessment and order was made on 15 May 2008, shortly before the hearing of the appeal. On 23 June 2008, he was transferred to HMT Home at Herne Bay on leave under s.17 of the Mental Health Act; this is a specialised home for those suffering from Huntingdon's Disease. We were told that in the event the finding of the jury is quashed, his s.17 leave would be reviewed as to whether an application should be made under s.25A. It would always be open to detain him in a more secure unit under the s.3 order, if his condition could not be managed at Herne Bay. In this case therefore, the public interest and the interests of the appellant are both properly protected.

Postscript

34. Although it appears from the careful research of Professor R.D. MacKay and others set out in their paper Continued upturn in unfitness to plead - more disability in relation to the trial under the 1991 Act published at [2007] Crim LR 530 that the number of cases where unfitness to plea arises is relatively small (though rising), it is an area of some difficulty where serious problems can arise as the circumstances arising from this appeal demonstrate. It may therefore be helpful if we add the following observations:

i) Once it is clear that there is an issue, such cases need very careful case management to ensure that full information is provided to the court without the delay so evident in this case.

ii) When full information is available, the court will need carefully to consider whether to postpone the issue of trial of fitness to plead under s.4(2), given the consequences that a finding of unfitness has for the defendant – see for example the judgment in R v M (Edward) [2001] EWCA Crim 2024 where the court held that the provisions of Article 6 of the HR Convention did not apply to the trial of the issue as to whether he committed the act with which he was charged. In this case, it was plainly apposite for Judge Brown to try the question of fitness to plead as soon as reports were available.

iii) If the court determines that the appellant is unfit to plead, then it is the court's duty under s.4A(2) of the Criminal Procedure (Insanity) Act 1964 carefully to consider who is the best person to be appointed by the court to put the case for the defence. As we have observed it is not clear what happened in this case. The duty under s.4A(2) is a duty personal to the court which must consider afresh the person who is to be appointed; it should not necessarily be the same person who has represented the defendant to date, as it is the responsibility of the court to be satisfied that the person appointed is the right person for this difficult task. As is evident from Professor MacKay's paper to which we have referred, there are relatively few cases where the trial of the issue as to whether the defendant did the act are contested and are therefore outside the experience of most. The responsibility placed on the person so appointed is quite different to the responsibility placed on an advocate where he or she can take instructions from a client. The special position of the person so appointed is underlined by the fact that the person is remunerated not through the Criminal Defence Service, but out of central funds. Given the responsibility that the Act places on the court, it would not be unusual if the judge needed a little time to consider who was the best person to be so appointed.

iv) Under present legislation, this court cannot order a retrial, as we have explained at paragraph 31, save in very limited circumstances. Although in this case the public interest is protected, there could well be cases where it would not be and serious public concern could arise where this court considered a verdict unsafe and was compelled to enter an acquittal, but nothing further could be done. We would hope that Parliament might give consideration to this lacuna in the statutory provisions and consider granting this court power to order a re-trial of the issue as to whether the defendant did the act with which he is charged.