QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FORBES
| THE QUEEN ON THE APPLICATION OF B
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
EQUALITY AND HUMAN RIGHTS COMMISSION
David Perry QC and Clair Dobbin (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 19-21 November 20008
Crown Copyright ©
Lord Justice Toulson :
"Once the letter had been agreed the CPS would seek Dr C's further opinion. Based upon the reply to that letter the CPS would then consider whether or not they would continue with the trial. The issue would be the rationality of the complainer witness."
"Human evidence shares the frailties of those who give it. It is subject to many cross currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross examination and common sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, he must surely be allowable for medical science to reveal this vital hidden fact to them."
"So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise."
1. (a) on 26 December 2005,
(b) in April 2006, or
(c) in 19 July 2006
suffering from a mental disorder of a kind and to a degree which affected, or may have affected, his perception and recollection of events so as to undermine the reliability of his account of those events at those times.
2. Is [FB] now suffering from a mental disorder of a kind and to a degree which affects, or may affect his perception and recollection of events so as to undermine the reliability of his account of those events now?
3. If your answer to any of these questions is "Yes", please indicate (with your reasons) the extent to which you consider [FB's] reliability as a witness of the truth is undermined."
"Please bear in mind that your report will be disclosed to the defendants and you should therefore restrict any confidential information contained in it to the absolute minimum."
"This report is prepared for Wood Green Crown Court on the instructions of Bindman and Partners, solicitors acting for [FB], with the agreement of other parties involved in the case. The report will be disclosed only to the Crown Prosecution Service."
"The medical records suggest that [FB] has experienced episodic or persistent psychotic symptoms since the middle of 2004. When I interviewed [FB] on 24 September 2004 I found evidence of paranoid delusions that have been present for some months. For example, he believed that strangers knew things about him and that at times he believed he was followed by a spirit. He recognised that these beliefs and experiences were abnormal but they appeared real to him. He did not attend follow-up appointments and did not receive treatment. At the time of his admission to the Huntley Centre he is described as experiencing having paranoid ideas about his sister's friends as well as hallucionary voices. He was started on treatment with Olanzapine, an anti psychotic medication, which is used to treat delusions and hallucinations and to prevent relapse. On 27 February 2007 [FB] told me that he hadn't been remembering to take his medication regularly and had been missing most doses. His mood was changeable and he had been experiencing visual hallucinations when watching television. He appeared distractible and there were some problems with concentration. [FB] had subsequently missed several appointments with the Community Mental Health Team (CMHT). He was last seen by [his care coordinator] on 29 March, at which time there was no significant change in his mental state."
"1. [FB] was suffering from a mental disorder of a kind and to a degree which may have affected his perception and recollection of events so as to undermine the reliability of his account of those events on 26 December 2005, in April 20006 and on 19 July 2006. Specifically, his illness caused him to experience delusions (false beliefs that seemed real to him) and hallucinations (unreal experiences that seem real).
3. [FB] continues now to suffer from a mental disorder of a kind and to a degree which may affect his perception and recollection of events so as to undermine the reliability of his account of those events now.
4. [FB's] distractibility and impairment of concentration may make it difficult for him to recollect, for example, precise dates and the exact sequence of events. Because of his illness he may experience delusions and hallucinations (beliefs and experiences that are not linked to reality)."
"… it is accepted that in the light of Dr C's report it is necessary for the jury to hear evidence about the defendant's (sic) reliability as a witness caused by his mental disorder, considering Toohey v MPC  AC 595 and MacKenny  EWCA 3643. However, this can and should be done by adducing evidence from Dr C orally, as it is anticipated will take place on Wednesday 13 June."
"4. When I attended court on 11 June I read the background medical documents relating to FB. I believe that these referred to his history of mental illness and also to his use of cannabis in the past and that he had a history of harming himself…
5. I believe that I first saw Dr C's report dated 3 May 2007 about FB at court on 11 June. [The transcript of the hearing on 7 June 2007 shows that his memory in this respect is incorrect.]… After reading Dr C's report on 11 June I concluded that there was no realistic prospect of conviction. I believe at this time that FB had not arrived at court or at least had not made his presence known. In accordance with standing instructions I went to the CPS office in the court building to obtain further instructions in company with … the officer in the case.
6. I was referred to Mr L P of counsel, who was one of CPS lawyers based at Snaresbrook. We reviewed the factual evidence in the case and the opinion of Dr. C. There was no evidence to support the Crown's case other than that of FB. There was also the outstanding issue of a renewed application being made to disclose FB's medical records. The decision reached was to discontinue the prosecution and offer no evidence. Mr P made notes of the discussion. In my opinion this was the correct decision.
7. I have been asked to comment upon whether the contents of Dr C's report were decisive or not. The conclusion that Dr C were that on 26 December 2006 FB was suffering from a mental disorder of a kind and to a degree which may have affected his perception and recollection of events so as to undermine the liability of his account of those events on 26 December 2006. Specifically, his illness caused him to experience delusion and hallucinations. FB continues to suffer from a mental disorder of a kind and to a degree which may affect his perception and recollection of events so as to undermine the reliability of his account of those events now. In my opinion the conclusion set out in the report would have precluded me from putting FB before a jury as a reliable witness.""
"3. I have checked my diary and can confirm that I was present at Snaresbrook Crown Court on 11 June 2007. I was in court myself on that day, appearing for the prosecution in pleas and case management hearings PCMH. I recall that prosecution counsel Mr AW came to see me in the CPS office at the court accompanied by … the officer in the case. AW wished to discuss the trial of HR which was listed that day and whether the prosecution case continued to satisfy the evidential test in the Code for Crown Prosecutors in the light of the psychiatric report which had been prepared about the victim and witness, FB. Until then, I had nothing to do with the trial of HR.
AW and I discussed the evidence in the case and, in particular, the psychiatric report of Dr C dated 3 May 2007. That report concluded amongst other things, that FB "continues now to suffer from a mental disorder of a kind and to a degree which may affect his perception and recollection of events so as to undermine the reliability of his account of those events now". My recollection of that discussion is that we concluded that, due to the essential importance of FB's evidence to the prosecution case and the doubt cast upon it by Dr C's conclusions, there was no longer any realistic prospect of a conviction. In particular, we concluded that we could not rely on FB's evidence as to which of the people present when he was assaulted was actually responsible. In the light of our conclusions I decided that the prosecution should offer no evidence, with the result that HR would be formally acquitted.
"5. I have a habit of recording such decisions in my notebook, and I am sure I did so in this occasion. However I have not been able to find any note of this discussion and decision…"
"4. I met AW, the barrister who was prosecuting the matter. He provided me with a copy of the psychiatric report from Dr C. This was the first time that I had seen this report and I was shocked of how blunt it was. It had two or three lines, which, in effect, stated that the claimant would be an unreliable witness due to his mental health problems and that his testimony could not be relied upon due to his history.
5. AW suggested that we should seek the advice of a member of the Crown Prosecution Service… We spoke to the Duty Lawyer who viewed the psychiatric report. I believe that, due to the content of that report it was felt that there was no other option but to offer no evidence.
6. I went to the Witness Service Room to check whether the claimant had arrived yet but he hadn't. I then went into court to hear the matter being dealt with. When the hearing had finished I went to the main reception to see whether the interpreter had arrived and was waiting in the reception area…
7. I met the claimant C for the first time at court, in the witness room. By this time the interpreter had also arrived. I explained to the interpreter about the content of the report from Dr C, what had happened in court, the reason why this had happened and asked him to explain this to the claimant. I checked that the claimant understood what had been explained to him and the claimant confirmed that he did understand it.
8. The claimant was upset; I could see tears in his eyes. He kept on asking me if he could leave - he didn't want to sit and discuss the matter further. I asked him if he was ok to travel and he left the court building. "
Facts in summary
1. FB suffered a serious assault on Boxing Day 2005 in which part of his ear was bitten off.
2. Whoever may have been responsible for the first use of violence, no one could plausibly suggest that the biting of FB's ear could have been an act done in lawful self defence, so the only real issue in relation to the assault was the identity of the ear biter.
3. FB gave a coherent and, on its face, credible account of events at a time when they were still fresh in his mind, in which he identified HR as the ear biter. He later identified HR, whom he knew, at an identification parade.
4. There was no doubt that FB was right in his identification of the time and place of the incident, the number of people present and (subject to one possible exception) who they were. Whether or not FB was right in his identification of HR as the ear biter, his general account of the episode was not an imaginary account of something which had never taken place.
5. FB had a history of psychotic illness in which he at times held paranoid beliefs about certain people and also suffered auditory and visual hallucinations.
6. He had insight into his condition in that he recognised that such beliefs and experiences were abnormal but they appeared normal to him.
7. There was no evidence that FB had shown previous hostility towards HR or held paranoid beliefs about him.
8. Dr C concluded that at all material times FB suffered from a mental condition which might affect his perception and recollection of events so as to make his account unreliable. Dr C did not suggest that FB was incapable of giving reliable evidence. His opinion was expressed in general terms. He was not asked, for example, to comment on whether there was any medical reason to think that FB's identification of HR as the ear biter, in the context described above, might suggest that he was hallucinating or be explicable on that basis. Although no attempt had been made to explore such matters with Dr C, he was due to attend the trial when further questions could be put to him.
9. No attempt was made to discuss Dr C's report with FB or his solicitors, or to explore with FB his ability to discern when his beliefs and auditory or visual experiences were abnormal, although he was expected at court at the time when the decision to offer no evidence was being taken (and arrived shortly after the decision had been carried out).
The MIND Report
The Code for Crown Prosecutors
"THE FULL CODE TEST
5.1 The Full Code Test has two stages. The first stage is consideration of the evidence. If the case does not pass the evidential stage it does not go ahead no matter how important or serious it may be. If it does pass the evidential stage, Crown Prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The evidential and public interest stages are explained below.
THE EVIDENTIAL STAGE
5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a "realistic prospect of conviction" against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.
5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing the case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant's guilt.
5.4 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable…."
Irrationality and the proper application of the Code
"In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the tests were too exacting an effective remedy would be denied."
Disability Discrimination Act 1995
"(1) Every public authority shall when carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life."
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"The requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law."
Mr Justice Forbes: