England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2017] 1 WLR 1660, [2016] EWCA Crim 2175, [2017] 1 Cr App R 26, [2017] WLR(D) 66

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Neutral Citation Number: [2016] EWCA Crim 2175

No: 201503606 B5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London , WC2A 2LL

Tuesday, 20th December 2016

B e f o r e :

LADY JUSTICE HALLETT DBE

VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)

MR JUSTICE SWEENEY

MRS JUSTICE MCGOWAN DBE

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R E G I N A

ADRIAN HOLLOWAY

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Computer Aided Transcript of the Stenograph Notes of

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Ms A Tayo appeared on behalf of the Appellant

Mr J N Davies appeared on behalf of the Crown

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J U D G M E N T (As approved by the Court)

THE VICE PRESIDENT :

Introduction

1. The applicant has a long history of mental health problems that his doctors consider justify a diagnosis of paranoid schizophrenia and detention under section 3 of the Mental Health Act 1973. Mr Holloway does not agree and he believes there are a number of conspiracies operating against him including conspiracies by his lawyers and his doctors. One of those doctors, the psychiatrist responsible for his care in 2012, is a Dr Cree. The applicant allegedly attacked Dr Cree with a homemade weapon, causing cuts and scratches to Dr Cree's left arm and a cut behind his left ear.

2. The applicant was charged with attempted murder and wounding with intent. Two consultant psychiatrists decided that he was fit to stand trial. He was initially represented by solicitors and counsel but decided to dispense with his legal representation and represent himself. His case was that he did not intend to kill Dr Cree or to cause him really serious harm, that the injury to Dr Cree's throat was minimal and it was caused accidentally. He claimed that his intention had been to take Dr Cree hostage and create a high profile incident. He hoped thereby to publicise the fact that he does not suffer from mental illness and he has been unfairly and unlawfully detained in hospital over many years both to his detriment and the detriment of his family.

3. The trial judge, His Honour Judge Lyons, left the offences of attempted murder, wounding with intent and an alternative offence of wounding to the jury. On 29 September 2014, the jury convicted the applicant of wounding with intent and acquitted him of attempted murder. On 1 December 2014, His Honour Judge Lyons sentenced him to imprisonment for life with a hospital and limitation direction pursuant to section 45A of the Mental Health Act. The period of 5 years was specified as the minimum term under section 82A of the Power of Criminal Courts (Sentencing) Act 2000.

4. He applies for an extension of time of 275 days in respect of conviction and 212 days in respect of sentence in which to apply for leave to appeal against conviction and sentence. His own grounds focus on the procedure adopted at his trial following his decision to represent himself. His explanation for the long delay in submitting the application is that he has approached a number of firms of solicitors whom he has instructed to advance his appeal but they have all sabotaged his attempts to appeal.

5. The applicant initially declined legal representation in this court. However, in September 2016 he indicated that he wished to be represented by Ms Tayo, who now appears on his behalf with the benefit of a representation order. Her Majesty's Attorney General kindly agreed to appoint an amicus, Mr Tom Little. Mr Jonathan Davies, who represented the Crown in the court below, represents the Crown before us.

Trial process

6. When the applicant dismissed his lawyers, Mr Davies applied under section 36 of the Youth Justice and Criminal Evidence Act 1999 for an order prohibiting the applicant from cross‑examining Dr Cree in person. The judge refused the application. Subsequently, the judge decided to appoint counsel, a Mr David Malone, to assist the court and the applicant with legal issues. The judge explained to the applicant that Mr Malone was counsel 'to assist the court' and was not a defence barrister but he would be available to assist him too.

7. Mr Malone remained throughout the trial, during the retirement of the jury and was present at the subsequent sentencing hearing. He performed a number of tasks including persuading the Crown to delete certain passages from their opening and cross‑examining witnesses at the applicant's request. However, the applicant himself made an opening and closing speech and he cross‑examined the complainant Dr Cree. Mr Malone felt that the applicant represented himself very effectively and that he was labouring under no particular difficulties caused by his medication. Had any difficulties been apparent or been brought to his attention by the medical staff who were looking after the applicant at court, Mr Malone stated he would have informed the judge. At the time of the trial the applicant seemed satisfied with the limited assistance provided by Mr Malone and thanked him several times for it.

The Grounds of Appeal

8. The applicant originally lodged grounds of appeal of his own composition in which he criticised the conduct of Mr Malone and accused him of bias. He accused the judge of removing his defence from the jury, preventing crucial defence witnesses being called, allowing medical witnesses to give evidence that was biased and taken out of context, misdirecting the jury and wrongly allowing the case to proceed on the basis that he was surfing from mental illness.

9. We shall bear the applicant's grounds in mind but we shall focus of those advanced by Ms Tayo.

Ground 1: Self‑representation

10. Ms Tayo asserts that the judge should have refused to allow the applicant to represent himself. She conceded, as she must, that he had been deemed fit to plead and stand trial and in principle had a right to defend himself but she maintained that the judge was obliged to force legal representation on him because of the nature and extent of his mental illness. As she put it: "the right to a represent oneself does not take precedence over the right to a fair trial". She described the applicant as delusional, heavily medicated and in no fit state to represent himself. His decisions all stemmed from his mental condition. There could be no equality of arms between him and the prosecution.

11. Had the applicant been found unfit to stand trial, he would have benefited from the protections offered to an accused by section 4A(2) of the Criminal Procedure (Insanity) Act 1964 and counsel would have been appointed to put his case. Ms Tayo suggested that this applicant should not have been left to his own devices because, although fit to plead, he was very seriously ill. If the judge decided he could not force representation on the applicant, she expected the judge to stay the proceedings until the doctors felt that his medical condition had improved.

12. She put before us R v Cox [2012] EWCA Crim 549 in which the court held that the staying of proceedings on the particulars facts of Cox would have been unfair on the complainant and R v Akhtar [2016] EWCA Crim 390. Akhtar was described as an exceptional case and one in which a succession of judges had questioned the Crown Prosecution Service's decision to prosecute. This court upheld a trial judge's decision to refuse to allow an adjournment on the basis there had been a failure to put the necessary procedures in place and allow the appellant to participate in the trial.

13. She accepted that in this case the judge adopted a number of measures in all good faith designed to help the applicant but they were said to be 'insufficient to ensure a fair trial'. She argues, somewhat boldly, that had she represented the applicant he would have been acquitted.

14. Our conclusion on ground 1 can be stated shortly. This applicant had been certified fit to plead. The judge had no power to force representation on him and there was no basis in fact or law for staying the proceedings. Lord Bingham of Cornhill CJ in R v Milton Brown (1988) 2 Cr App R 364, having noted that some jurisdictions require a defendant to be represented, observed:

"That is not the British tradition, which has permitted individuals to represent themselves in both civil and criminal proceedings. The only notable curtailment is to be found in section 34A of the Criminal Justice Act 1988 which forbids a defendant in a criminal trial to cross‑examine a child witness personally. Even in that situation, however, a defendant is not obliged to be professionally represented."

15. It is clear that a defendant who is fit to stand trial cannot dismiss his legal representatives, insist on representing himself and then come to this court claiming he should not have been allowed to represent himself.

16. Further there was absolutely no basis for granting a stay. We note that the applicant was well able to represent himself. Those present at trial, which Ms Tayo was not, were obviously satisfied that his mental health problems and medication did not prevent him running adequately the defence he wished to run and, to an extent, he succeeded. He was acquitted of the most serious charge despite powerful evidence from the complainant. Further, the judge did everything in his power to ensure the applicant put all the relevant matters he wished to put before the jury fully and fairly.

17. Ground 2: the power to appoint and the role of the court advocate.

18. We shall come back to this ground later in the judgment.

Ground 3: Alternative Counts and Verdicts

19. Ms Tayo observed that the judge in his sentencing remarks recognised that the wounds inflicted were not serious. On that basis, she advanced the rather curious argument that alternative verdicts of section 20 wounding, section 47, assault occasioning actual bodily harm, and attempted grievous bodily harm should all have been included as counts on the indictment. She acknowledged that an alternative charge under section 20 wounding was left to the jury but complained that it was not a specific count on the indictment. It was important to include counts on the indictment, she claimed, so that the jury was in a position "specifically to analyse" the count. By which she meant the jury could focus on the individual elements of each of the offences.

20. This ground is unarguable. The issues for the jury were straightforward: was the wound inflicted deliberately or accidentally? If deliberate, what, if anything, did the applicant intend? The counts on the indictment coupled with the alternative of wounding simpliciter gave the jury a full and fair opportunity to reach a proper verdict on the evidence. We confess we did not follow the argument that it would have been fairer to the applicant to put additional counts on the indictment or fairer to him to add a count of attempting to cause really serious bodily harm.

Ground 4: Available Defences

21. During the course of the trial the applicant asked the judge if the defence of necessity could be left to the jury. The judge indicated that he would not prevent the applicant from saying whatever he wanted to say, namely that he was forced to behave as he did, but he would not leave duress of circumstances or necessity to the jury.

22. Ms Tayo argues that he should have done so in respect of all the counts save the attempted murder count. She relied upon a definition prepared by the learned editors of Archbold, that there are a number of elements to the crime of duress by circumstances or necessity. The learned editors at chapter 17‑132 state this:

"A person will have a defence to a charge of crime if: (a) the commission of the crime was necessary, or reasonably believed to have been necessary [a number of citations are then given], for the purpose of avoiding or preventing death or serious injury to himself or another; (b) that necessity was the sine qua non of the commission of the crime; and (c) the commission of the crime, viewed objectively, was reasonable and proportionate having regard to the evil to be avoided or prevented. It will not avail the defendant that he believed what he did to have been necessary to avoid the evil if, viewed objectively, it was unnecessary, or, though necessary, was disproportionate."

23. On that basis, Ms Tayo submitted there was sufficient evidence for this defence to be left to the jury. We pressed her to provide more details of what that evidence of duress or necessity was and all she could provide was the evidence of the applicant's beliefs that he had to assault or take the doctor hostage to draw attention to his detention and the alleged plight of his daughter.

24. Again this ground is unarguable and we are surprised that it was advanced. There could have been no defence of duress on the facts here. There was not sufficient evidence to leave it to the jury and the judge was well within his powers to decline to leave it to the jury. If the applicant wished to challenge his diagnosis and his detention on any objective assessment of the facts, there is a perfectly proper system of review by the mental health review tribunal, in which forum the applicant has succeeded in the past. There was no arguable necessity to behave as he did.

Ground 5: The Admissibility of Evidence

25. Ms Tayo complained that evidence was admitted from Dr Sainz‑Fuertes. Dr Sainz‑Fuertes gave evidence that he had taken over the applicant's care after the incident. During conversations in Broadmoor the applicant had told him that he thought Dr Cree was a child abuser, that he had been the man in charge keeping him away from his child and that he had deserved to be attacked. He had said that he had made the weapon with the intention of attacking Dr Cree but he had stopped short of accepting he intended to kill. After the conversations, the doctor said he had made notes of what had been discussed. He was one of the witnesses cross‑examined by Mr Malone and he admitted that he had not recorded in his notes a question he said he had put to the applicant about whether he had intended to kill him.

26. Ms Tayo likened these interviews to interviews by the police, yet none of the safeguards that would apply to police interviews were applied here since the safeguards in the Police and Criminal Evidence Act 1984 ("PACE") Code C were not seemingly relevant. She called the contents of the interviews 'self‑incriminatory hearsay' and said they should have been excluded pursuant to section 78 of PACE.

27. In our judgment, the interviews were not subject to PACE. They were potentially admissible and probative in providing the jury with a motive for the offence and the applicant's reaction after the incident. No objection had been taken to the admissibility of this evidence even when the applicant was legally represented. Even if there had been breaches of the spirt of the Code or if the material had been prejudicial, neither of which assertion do we accept, it does not follow that the judge was obliged to exclude the material or that it would have been in the applicant's best interests to exclude it. Again when we pressed Ms Tayo for further information on what she claimed was prejudicial to the applicant's interests, it seemed that it was simply the way in which the doctor had recorded the applicant's explanation as opposed to the explanation itself. The explanation as recorded by the doctor was similar to that advanced at trial albeit expressed in rather more extreme terms.

Ground 2

28. Finally, we turn to the second ground and the one which, to our mind, has the greatest substance and this is whether or not the judge had the power to appoint an advocate to assist the court in the way that occurred.

29. Mr Davies began the proceedings before us by asserting that the judge did have the power to appoint counsel to assist the applicant. He could not point to any provision save the Criminal Procedure Rules 3.9(3)(b) which requires the court to take every reasonable step to facilitate the participation of the defendant. It was his contention that the judge had done just that, that he had set out to facilitate the participation of the applicant and to provide him with the voice of an experienced criminal barrister if he wished to take advantage of it.

30. Ms Tayo disputed that the judge had the power to appoint Mr Malone in any circumstances. If he did have such a power, contrary to her submission, she argued he should have gone further and appointed Mr Malone to present the defence case. The advocate appointed to represent the applicant, she argued, should have been pro defence rather than neutral to ensure equality of arms and a fair trial.

31. Mr Little, our amicus, questioned whether the judge did have an inherent power to appoint Mr Malone to assist the applicant. In his very full and helpful written submissions, Mr Little took us in some detail through the various statutory provisions that may be relevant.

32. First, he took us to the statutory framework under the Youth Justice and Criminal Evidence Act 1999 (the "YJCEA"). He noted that no formal order of the court appointing David Malone under that Act was ever made. There was a reference to the judge having exercised a power under 30 of the YJCEA (that provides for special measures as aids to communication) in a letter of 28 February 2015 written by a court official but this seems to have been an attempt to assist Mr Malone in his claim for payment rather than an accurate reflection of the judge's order.

33. Further, Mr Little observed that the judge having ruled against Mr Davies' application under section 36 of the YJCEA to prohibit the applicant from cross‑examining Dr Cree, he could find no power within the Act for appointing an advocate to act in the way that Mr Malone acted by cross‑examining on behalf of the applicant.

34. In passing, he invited us to note that had Mr Malone been appointed under the provisions of the YJCE, the statute provides for explicit warnings to be given to the jury on the fact that a defendant has been prevented from cross‑examining a witness so that the jury are not prejudiced against him. The judge gave a warning to the jury alerting the jury to difficulties that existed for the applicant but not specifically in relation to special measures.

35. Mr Little also examined whether there was a power under the Criminal Procedure Rules to appoint an advocate to assist the applicant. We were referred to R(C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), reported at [2010] 1 All ER 735 at paragraph 16, where the Administrative Court endorsed the principle that the court has an inherent power/duty to appoint an intermediary to enable a defendant to follow proceedings and give evidence. Further, it was suggested there "may" also be a power to do so under the overriding objective and case management powers of the Criminal Procedure Rules

36. However, this was a power to appoint an intermediary and we are concerned with the power to appoint an advocate. Mr Little suggested there are a number of points that suggest there was no power to appoint an advocate in these circumstances. First, there is no decision on this point. On at least two occasions this court has been faced with the very difficult issue of balancing a defendant's right to a fair trial and the right of a witness to be treated fairly. The first in time was R v De Oliviera [1997] Crim LR 600. The second was R v Milton Brown 1998 2 Cr App R 364 in which Lord Bingham of Cornhill CJ giving the judgment of the court endorsed passages from the judgment in Oliviera to the effect that where a defendant was prohibited by statute from cross- examining a witness, the trial judge should him/herself ask what questions are necessary of the witness. No mention was made of appointing an advocate for that purpose under an inherent power. Second, there is no academic material that he could find advocating the existence of a power to appoint advocates in this situation. Third, the power would be inconsistent with the principles of an adversarial trial, which remains at the heart of our criminal justice system.

37. Mr Little finally took the court to the procedure whereby Her Majesty's Attorney General may appoint an advocate to assist the court, as he has done in this case today. The circumstances in which an advocate is appointed are very restricted. A memorandum dated 19 December 2001 agreed between the then Attorney General and Lord Chief Justice states in clear terms that an amicus will not be appointed for the purposes of cross‑examination in criminal trials and they will not be appointed "simply because a defendant in criminal proceedings refuses representation". Her Majesty's Attorney may consider appointing a special advocate in the Crown Court but only to perform a very limited role in relation to disclosure of sensitive documents. Mr Little invited us to note that in such a situation, it is not the court who appoints the advocate but the Attorney and the advocate does not act on behalf of an accused in cross‑examining witnesses or presenting arguments before a jury.

38. By the close of argument, Mr Davies was inclined to agree with Mr Little for the reasons he gave, that the judge had no power to appoint Mr Malone and this ground was, therefore, virtually conceded; in our view rightly.

39. It is now accepted that a court has an inherent power (and possibly a power under the Criminal Procedure Rules) to appoint an intermediary to ensure the effective participation of a vulnerable defendant in a trial. In this case, however, an intermediary was not necessary. HHJ Lyons, with the best of intentions, purported to appoint an amicus "to assist the court" who in truth was appointed to act as a defence advocate and adviser. We see considerable force in Mr Little's submissions that, save where statute provides, there is no power to appoint an advocate in these circumstances to perform such a role. Further, there is no need for any such power. The court now has ample powers to ensure a fair trial without resorting to appointing a defence advocate where legal representation has been refused. Accordingly, we can find no basis for the appointment of Mr Malone, as helpful as he undoubtedly was to the court and to the applicant. Through no fault of his, the boundaries of his role became somewhat blurred. He began as something akin to an amicus but he argued points with the prosecution on the applicant's behalf, explained to the applicant the effect of the judge's rulings and he cross-examined witnesses. On at least one occasion he was referred to by the judge as "your counsel" or "your barrister". On any view, he was not the applicant's advocate. The applicant had dispensed with the services of his advocate and his solicitors.

40. Conclusion on application for leave to appeal conviction

41. There remains, however, the ultimate question for us namely whether the appointment of Mr Malone to assist the court and the applicant has in any way undermined the safety of the conviction. We are satisfied it did not. On the contrary, Mr Malone was of great assistance to the applicant, whatever the applicant's present views.

42. The applicant was fit to stand trial. He did not require an intermediary. The issue or issues at trial were narrow. He was able to make an opening and closing speech and he was able to cross‑examine the main witness himself. He was also able to give evidence and give the account that he wanted to give. Mr Davies decided not to make a closing speech. Mr Malone's involvement therefore, did not prejudice the applicant.

43. In the light of the applicant's numerous complaints and any possible cumulative effect of his complaints and those of Ms Tayo, we have stood back and we have asked ourselves whether in all the circumstances the applicant had a fair trial. We are satisfied that he did.

44. Accordingly, although we would be prepared to give leave on the second ground, the appeal against conviction must be dismissed.

Application for leave to appeal sentence

45. The applicant is now aged 50. He has five convictions for 10 offences including an offence of battery. The most relevant convictions for our purposes are an offence of wounding in 1992 for which he received a hospital order (having stabbed his brother in the back with a kitchen knife so far that the blade went up to the hilt) and a conviction for manslaughter (diminished responsibility) in 1995 for having stabbed a fellow resident. A hospital order under section 37 of the Mental Health Act 1983 with a restriction under section 41 was imposed.

46. The author of the pre‑sentence report was of the opinion that he poses a very high risk of violent reoffending, a very high risk of serious harm and he meets the statutory criteria of dangerousness. A hospital order with a limitation direction was recommended.