England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BLACKFRIARS CROWN COURT
HIS HONOUR JUDGE CLARKE QC
T21047237

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/07/2015

Mrs Justice Patterson:

1. On 10 December 2014 at Blackfriars Crown Court the appellant was found guilty, in his absence, of Causing Death by Dangerous Driving. On 22 of December he was sentenced by HH Judge Clarke QC to a term of imprisonment of 18 months, which was reduced on appeal to a term of 12 months imprisonment.
2. The appellant appeals against his conviction with limited leave of the single judge on one ground, namely, that the trial judge's ruling on 2 December 2014 that the appellant was fit to plead but unfit to attend his trial was wrong.
3. Before us the appellant has renewed his application to appeal his conviction on one other ground which we will deal with at the end of this judgment.
4. At the hearing on 9 July 2015 we announced that the appeal was dismissed and that we refused the appellant permission to appeal on his renewed application. We said that we would give our reasons later. These are those reasons.

Factual background

5. The appellant is now aged 85. He was 83 at the time of the events which gave rise to the hearing before us.
6. On 10 November, 2012 at about 8.30pm the appellant was returning home in his Mercedes motor car, having played for some seven hours in a bridge tournament in Barnet. The tournament finished at about 7pm. The appellant had had something to eat and a coffee. He had had no alcohol to drink. A bridge partner drove the appellant to where he had parked his car and the appellant drove off.
7. His journey was largely uneventful until he reached West Hampstead. There, he paused outside West Hampstead Underground Station. The appellant's car was seen stationary for about ten seconds. Witnesses observed that the engine was running, was being heavily 'revved' and the vehicle was emitting exhaust smoke. The car then took off at speed along West End Lane. Within the next twenty seconds the car accelerated to a speed of 55 miles per hour in an area where the speed limit is 20 miles per hour. The car failed to negotiate a left hand bend and veered onto the north bound lane which it crossed and mounted a kerb. There were some nine pedestrians on the pavement. The car clipped Mr Mairat, narrowly missed Mr Brooks-Dutton who was pushing his two year old son in his pushchair but hit his wife, Desreen Brooks, with full impact. She died almost immediately. She was aged 33. The car continued along the pavement and struck Amy Werner, aged 23, who had recently come to this country to study. She suffered life threatening injuries. The car then crashed into a garden wall.
8. The incident has been tragic for all concerned. The effect on Mr Brooks-Dutton and his young son was set out in his written victim impact statement to the Court of Appeal when it considered the appeal against sentence. The victim impact statement said that their grief and loss were palpable.
9. Ms Werner has lost the sight of her right eye. She sustained haematoma to her brain from which she recovered but which has left long lasting and permanent injury. She does not underestimate the difficulties in pursuing a fulfilling career.
10. There was some delay in charging the appellant due to, amongst other matters, medical issues as to what caused him to drive in this way. The Appellant finally appeared at Highbury Magistrates Court in May 2014 when the case was sent to Blackfriars Crown Court. The appellant made his first appearance there on 6 June 2014.
11. In August 2014 the appellant attempted to commit suicide and was admitted to a private psychiatric hospital as a voluntary patient. He was an inpatient for some three weeks.
12. Meanwhile, at Blackfriars Crown Court, a listing date was fixed for the case on 5 September which the appellant was excused from attending due to his ill health. A date was set for a hearing to dismiss the charges on 17 November 2014.
13. On 17 of November the Appellant attended court. The application to dismiss was rejected and a trial date fixed for 1 December. We deal with the hearings of 17 November and 1 December in greater detail later in this judgment.
14. On 1 December the appellant did not attend court. He was represented then, as he was before us, by Mr Donnellan QC. He made an application that the proceedings should be stayed because the appellant was unfit to plead and unfit to stand trial. That application was rejected and full reasons given for its rejection the following day.
15. On 2 December the case was opened to the jury in the absence of the appellant. The prosecution case was that the appellant was an elderly driver who became confused with tragic consequences. For some reason the car had slipped into neutral and out of gear. Without realising what had happened the appellant pressed right down on the accelerator so that when he put the car into gear the car shot forward. The prosecution case was that a competent driver would not mistake a brake and an accelerator. When the car was examined the accelerator pedal was seen to be fully depressed. It was the view of the police accident investigator, not disputed by the defence at trial, that the appellant had been pressing the accelerator when he thought it was the brake; he had suffered from pedal confusion.
16. In his police interview the appellant said that he seemed to be on the wrong side of the road going at racing speed. He realised that the speed was uncontrollable. He had tugged on the handbrake with no effect and he thought that he had to crash the car to bring it to a halt. He did not see any pedestrians.
17. The defence case was that the incident occurred because, at the relevant time, the appellant was in a state of automatism relating to a medical episode. Medical evidence was called by the defence and prosecution at trial on that issue.
18. The judge directed the jury that the issue for them was whether the Crown had shown that this was not a case of automatism.
19. The jury convicted the appellant on 10 December.
20. The appellant then attended court for his sentencing hearing on 22 December 2014.

Fitness to Plead and Unfitness to Attend Trial

21. Mr Donnellan QC submits that the appellant was medically unfit to attend court and unfit to be tried. The court should not have proceeded to a trial in his absence.
22. Medical experts were instructed by the appellant to appear on 1 December when the appellant was due to answer to his bail. They were Dr Beckett, a consultant psychiatrist who had been treating the Appellant since August 2013, and Professor Yorston, a forensic consultant neuropyschiatrist. Professor Yorston had been instructed after the suicide attempt in August 2014.
23. On 1 December the Appellant did not attend court. The medical experts gave evidence. Dr Beckett diagnosed the appellant as suffering from depressive illness and post traumatic stress disorder. He saw the appellant generally every two weeks. He found that the appellant had a tendency to replay the accident frequently and was suffering from intrusive thoughts and memories. He said:

"My conclusion is that he is unfit to stand trial essentially, and that is in the most part because of potential impact on him, the potential impact on his mental state and his risk of suicide, completed suicide, of him being required to attend court and stand trial." [27D-E]

24. He was asked about fitness to plead and replied:

"Yes, that is a difficult judgment. I mean based upon my review – my assessment on Thursday that was my feeling, that he would be broadly speaking able to follow proceedings and you know, answer questions et cetera. But there is some debate about that I suppose inasmuch as he is changeable and also that he does – he is prone to occasional periods of dissociation and there does seem to be evidence of a deterioration in his mood and to a certain extent in his cognitive abilities over recent weeks.

So I'd say as of last Thursday it's a difficult judgment to make but on balance I'd say that he was just about able to follow court proceedings but that may change.

…

As of Thursday I've said at this point that on balance I'd say that he's cognitively intact enough to be able to follow things but that could change depending upon how things go on the day in court." [36B-E & 38E]

25. In re-examination he was questioned again about the appellant's understanding of the nature of the proceedings. He was asked "Can he plead guilty or not guilty? Can he give instructions? Over a period of time, in the circumstances of each of those your answer is in the circumstances, as you see them, he can in fact do each of those?" Dr Beckett's answer, as recorded on the transcript, is "Uh-huh" [48D].
26. Professor Yorston saw the appellant on 11 September, 5 October and 27 November. In his reports he set out the appellant's account of the accident. When he gave evidence he referred to his report of 15 October and said:

"I think my conclusion was at the time that he was --- he was just above the threshold for fit to plead but I thought it highly likely that as the trial date approached his mental state would deteriorate and that would put him below the threshold" [58D]

27. Professor Yorston's report of 27 November was to offer an opinion about the appellant's fitness to plead and to stand trial. In his report he said that the appellant:

"…simply cannot get past the terror of appearing in court and potentially being deemed a liar. The cerebrovascular disease that has caused the impairment in his executive functioning will not improve and is likely to get progressively worse over time. In my opinion therefore it is highly unlikely that Mr Lederman will regain the mental capacity to stand trial."

28. When he was asked about fitness to plead on 1 December, he said:

"My view is that he is not currently fit to plead and stand trial. Because he simply wouldn't be able to follow proceedings in court. He may be able to understand some questions and respond intelligently to some questions but other questions would totally throw him. When I say "questions" again, I mean discussion going on in court, questions between other people, not necessarily towards him. But some issues will – he will be totally thrown and unable to follow even get a vague gist of what is being discussed." [88C-E]

29. Attendance at court of the appellant, in Professor Yorston's view, "might be just enough to tip him over." [85B]
30. Neither medical expert thought it necessary to section the appellant so as to require his admittance to a psychiatric hospital.
31. Mr Donnellan QC said that the decision on whether to call the appellant to give evidence as part of the defence was to be taken at the end of the prosecution case. It had been thought that if appellant was at court his memory might be triggered. They had anticipated that the appellant would want to give evidence. The appellant had read, and signed a defence statement on 26 November. The defence statement was filed with the court and served on the prosecution.
32. Despite at one time contending to the contrary, Mr Donnellan QC accepted that the appellant did not have to attend at the hearing for the determination of his fitness to plead as it was not a determination to which Article 6 of the European Convention on Human Rights (ECHR) applied. The judge was entitled to make a ruling on the issue of unfitness in the absence of the accused.
33. The appellant's submission was that the judge should have made a finding that the appellant was not fit to plead and that there should then be a trial of the issue.
34. It was not a case where the appellant was voluntarily absent.
35. The prosecution submitted that the appellant's absence was entirely voluntary. If he was adjudged fit to plead then the obligation upon the appellant was to attend court. If he was not fit to plead then there had to be a trial of the issue.
36. The psychiatrists called to give evidence by the defence did not agree with each other. Dr Beckett thought that the appellant was fit to plead. References to suicide risk were not part of the Pritchard test, see R v Pritchard (1836) 7 C&P 305, [1836] EWHC KB 1.
37. Professor Yorston went the other way. The judge had, therefore, to make a choice between the two psychiatrists and evaluate their evidence against the Pritchard criteria.
38. Without two medical practitioners in agreement it was impossible for the judge to find that the appellant was not fit to plead: see Section 4(6) of the Criminal Procedure (Insanity) Act 1964.
39. The appellant had attended court on 17 November for the dismissal proceedings and had entered pleas of not guilty to the indictment after the dismissal application was rejected. He had watched the CCTV footage of the driving of his vehicle and he had signed a full defence statement on 26 November, days before the opening of the trial. The fluctuations in his mental state were evident. He was able to attend his sentencing hearing by which time it was remarked that his mood had lightened.
40. It was the defence application that, if the application failed, the proceedings should not be delayed and the appellant should not have to attend court:

"Our submission is that he is not deliberately refusing to come to court in the context in which we've heard that evidence and he should not attend court for a trial if a trial is to continue. [110G]

…

An alternative is that he is excused attendance and the trial proceeds in his absence. [112C]

…

If your Honour is against us then he is not fit to attend and that is a matter for the court whether the trial should – if you find him fit to stand trial, first can you excuse his attendance on medical evidence and the trial will proceed in his absence." [140C]

41. The prosecution submitted that the reality was that:

i) the appellant could have attended court; and

ii) there was no application for evidence to be adduced from the appellant in any other form, whether by video link or to have a statement from the appellant read. In fact, the defence was fully set out in the police interview and in accounts that he had given to his medical advisers, in particular, to Professor Yorston who had seen him as recently as 27 November. All of that content was before the jury. There was nothing further which could have been said on the appellant's behalf.

42. Once the decision was made on whether the appellant was fit to plead the next decision was whether he was to attend his trial.
43. The judge was loathe to adjourn to enable the prosecution to obtain their own medical report, which could not be obtained before the following Friday. He said:

"…as the medical men have all said, the sooner the better. And the sooner his trial starts and he can go home, the trial having started, it seems to me the better."

44. It was clearly a case where there was a strong public interest in the trial taking place. It could not be said that the trial was unfair.
45. The judge found and announced on 1 December that the Appellant was not unfit to plead. He was entirely satisfied that there had to be trial; his concern related to fragile mental state of the appellant. He said:

"My concerns are encapsulated by Professor Yorston's description that bringing him to court would tip him over. In other words, to use his term, and adopted as a lay man, he hasn't tipped yet. That I find troubling in that, as you say, it is slightly – and all these terms sound pejorative and they are not meant to, it is holding a gun at the court's head saying: don't you dare tip him over the edge." [132E-G]

46. The judge gave his reasons for his decision that the appellant was fit to plead the following day. He summarised the evidence of the medical experts and said:

"I should say for all those involved in this case, particularly those emotionally involved, that though the defendant attended at dismissal proceedings, it was quite obvious to me that his mental condition was I think in layman's terms best described as not normal. He was listening. He was paying attention but it was quite apparent to me that the attention paid to him was something that caused him to quail. Having said that, after the dismissal was rejected he did enter pleas of not guilty to the indictment and I am entirely satisfied that Geoffrey Lederman was fit to plead and fit to give instructions not only to medical examiners but also, given the way it was argued very ably by Mr Donnellan QC, that he had given extensive instructions to his lawyers which will be used in this forthcoming trial." [10G-11D]

47. He continued:

"Matters that are common ground, although touched on by Mr Donnellan quite rightly, are that it is really not arguable that this is a state of affairs which should cause a stay of the prosecution. In circumstances such as this I always disapprove of the term 'abuse'. Mental conditions such as the defendant is suffering from might be examined to see whether a stay of prosecution should take place but it seems to me that, given the case in the state that it is, a stay of prosecution is not applicable.

There is no question either of insanity. Neither doctor regards this defendant as being what is referred to as sectionable, so it is not a question of a jury having to decide merely whether he did the act after a judicial finding that he was not fit to be tried. The finding that I make is not that he is not fit to be tried but that he is not in a state to attend his trial which is a different finding and a narrow one and very unusual and should be adopted by the court in very, very exceptional circumstances." [12G-13F]

48. He then proceeded to consider whether the trial should proceed in the absence of the appellant.
49. Before dealing with that issue we need to deal with whether the learned judge was right in his determination that the appellant was fit to plead. In our view he clearly was.
50. First, as the prosecution submitted a finding of unfitness can only be made if there is written or oral evidence to that effect from two or more registered medical practitioners, at least one of whom has special experience in the field of mental disorder. The only medical evidence before the court was from Dr Beckett and Professor Yortson. As set out above the experts took divergent views on whether the appellant was unfit to plead. On their evidence the statutory requirement to make such a finding was not met.
51. Second, there was the possibility that the trial be adjourned to enable the prosecution to instruct its own psychiatrist. The Crown had undertaken enquiries and a report from an expert could not be available until the end of the week. But, in the circumstances, no party was asking for an adjournment to enable that to happen. The overriding consensus was that the hearing should proceed. The judge considered the prospect of adjourning but concluded that the mental pressure that would impose upon the appellant would exacerbate his mental condition which meant that was not a course worth pursuing.
52. Third, the Pritchard criteria – to understand the charges, to understand the plea, to challenge jurors, to instruct counsel and his solicitor, to understand the course of the trial and to give evidence if a defendant chooses to do so, the judge concluded, were all met very clearly on the evidence of Dr Beckett which it was open to the judge to prefer. Concerns about suicidal ideation and mental fragility are not part of the Pritchard criteria for consideration of unfitness to plead. It would, therefore, have been wholly wrong for the judge to have made a determination in any way other than he did and to have gone on to consider a trial of the issue.
53. Once the question of unfitness to plead had been determined the appellant was then under a duty to answer to his bail and attend court for his trial.
54. There was no incapacity on the part of the appellant that made attendance at court impossible. The concerns expressed by the medical experts were as to his mental health yet that was not of such a degree for the appellant to require certification under the Mental Health Act 1983. In short, the appellant's mental state provided no justification for his absence from court.
55. It follows that the absence of the appellant from the court was entirely voluntary. That was also the conclusion of the trial judge. The issue of suicide risk was one to be managed by the appellant's medical team or, failing that, if a warrant had to be issued for the appellant's arrest, the prison authorities.
56. As the appellant decided voluntarily to absent himself from a trial where he was represented by counsel, the judge was entirely right to continue. None of the issues that arose in R v Anthony Jones [2002] UKHL 5, R v Hayward & Others [2001] EWCA Crim 168 and R v Kaur [2013] EWCA Crim 590 arise in this case.
57. It follows therefore that the judge was right in the decision that he took and there was no procedural unfairness or irregularity in this case. In any event the conviction was entirely safe. The evidence against the appellant was strong. His case was fully put before the jury by experienced and able counsel. At the trial there had been full cross examination of all witnesses, medical evidence was called on behalf of the appellant and there was no complaint about the summing up.

Renewed Application for Leave to Appeal

58. On 17 November, 2014, prior to the trial proceeding the Judge heard two applications. The first, and the one upon which a renewed application is made for permission to appeal, was an application to dismiss the charges against the appellant.
59. The application was focused upon the appellant's lack of recollection of his actions. It was submitted that in his view the car had a mind of its own. His first awareness was of a speeding car which he had to stop. He aimed it at the wall to stop it; his state of mind was to avoid causing further damage. His acts were involuntary.
60. The prosecution submitted that the applicant must have put the car into gear for it to take off at such speed. The car went through an s-bend and the applicant took a deliberate decision to crash the car. There was substantial evidence as to what occurred, supported by what the applicant said in his police interview.
61. In his ruling on 17 November the judge said:

"Mr Donnellan, quite understandably, concentrates on the complete lack of recollection of that action by the defendant and asserts that the Crown's inability to fill that gap as far as the defendant's knowledge and intentions were concerned is and should be fatal to the ability of any jury properly to convict.

The difficulty is that in my view as far as dismissal is concerned which is insurmountable is the defendant's acknowledgement that the driving into the wall was deliberate and was effectively a safety manoeuvre.

The particular matter that is relied on by the Crown in page 3 of the first interview is, 'I thought to myself, "This is madly out of control. I've got to crash the car, otherwise I'm going to do some damage" and I think I visualised the wall the other side and the clear patch of road and I thought, "You've got to crash it", and that's what I did.'

It means two things. Firstly, there is evidence, even if he did lose some mental stability outside West Hampstead station, that within the 300 yards of the station and the crash he not only regained full mental control, but made a positive decision to plough his car across the road into front garden walls on that pavement which was actually highly populated at the time.

In my view, it is the decision to cross that road and the consequences of that crossing that is the actus reus and, for that matter, the mens rea of the offences with which Mr Lederman is charged." [3C-4F]

62. We entirely agree with the learned judge and for the reasons that he gave. There was ample evidence for the count to go before the jury and for the jury to decide whether to convict the applicant. The ground is not arguable.