Lord Justice Thomas:
- The issue in this appeal is whether, after the appellant had been tried and convicted at the Crown Court in Coventry on 26 November 2008 of offences of sexual assault on a child under 13, the court should admit under s.23 of the Criminal Appeal Act 1968 fresh evidence that he was unfit to plead at the trial. The issue involved consideration of whether the appellant's accepted low IQ and hearing disability amounted to unfitness to plead within the Pritchard criteria.
The matters of common ground
- On 30 May 2008 an 11 year old girl, P, and her female friend, C, were walking past the house of the brother of the appellant which was near to P's home. The appellant who was then 36 called out to them. He asked them if they would help feed his brother's cats. P knew the brother was away on holiday. She went into the house and her friend remained outside. She helped prepare the cat food and took it into the living room.
- From the account given the following day in a police interview in the presence of an appropriate adult and a solicitor acting for the appellant, the account thus far was similar in all material respects to the account given by the appellant then. We were told that that account was repeated at trial, though no transcript of his evidence at trial had been obtained. He said he had been to a public house at about 5 o'clock and had a couple of pints and went to his brother's house at about 6 o'clock to feed the cats. He accepted he had asked P and her friend to help. He accepted that P had gone into the house.
The alleged sexual assault
- The evidence of P was that when she went into the living room with the cat food, the appellant pushed her onto the sofa, lifted up her shorts and touched her legs. She tried to leave but he pulled her back, put her on the sofa again and touched her legs. She left the house and told her brother who confronted the appellant saying that he had touched his sister inappropriately.
- Although the appellant accepted that P's brother had come to the house, he denied both in his interview and at trial touching her in any way.
- At the trial there was another prosecution witness who did not materially add to the account.
- The appellant was charged and the case sent for trial on 14 July 2008. The appellant was indicted on a four count indictment with two counts of sexual assault on a child under 13 contrary to s.7(1) of the Sexual Offences Act 2003, each count relating to the separate times in which it was alleged he had touched her, a count of false imprisonment and a count of committing an offence with intent to commit a sexual offence. A Plea and Case Management Hearing was held on 23 July 2008 when the trial was fixed for 24 November 2008.
- The trial commenced on 24 November 2008 before HHJ Cleary. It appears that at the outset of the trial the judge asked the advocate for the defendant if he had obtained a psychological profile of the appellant. He said he had not. The trial then began with the judge making no further comment. The Crown proceeded to call the evidence for the Crown which we have summarised. The advocate for the defendant called the defendant. The judge summed the case up to the jury.
- In the course of his summing up he set out the evidence that the appellant had given. Amongst the very large number of questions that the judge suggested in his summing up the jury should ask themselves were questions such as, "You may want to ask yourselves who is the brighter of the two?" "The little girl or the defendant?" "Was the defendant acting?" "Is he effectively pretending that he is suffering from a degree of difficulty?" "Is this pretence that he doesn't actually understand long and complicated words?" "Is he being clever when he answered to my question, 'I didn't understand that question'?" "Was it a device?" At another passage in his summing up he posed further questions such as, "Has he contradicted himself, given any difficulties to which you might find he suffers from? When he is cross-examined by the Crown, did he waver? On the other hand, because he is unsophisticated, because he may have the difficulties which are perhaps hanging somewhere in the backdrop of this case, is he stupid enough and criminal enough to do it thinking he can get away with it?"
- After a retirement of some two hours the jury found the appellant guilty on the two counts of sexual assault contrary to s.7(1). After being given more time they found by majority the defendant guilty of the count of committing an offence with intent to commit a sexual offence.
- Immediately after the verdict had been returned, the judge asked the court to be cleared save for the advocates for the Crown and defence, court staff, the appellant and his brother. He pointed out a number of failings of the defence advocate including, as relevant to this appeal, the defence advocate's failure to obtain a psychological profile of the appellant. The appellant's advocate said that consideration had been given to obtaining a psychological profile but it had been decided against; although the appellant had learning difficulties, he was capable of functioning independently in day-to-day life and capable of holding down a job. He added that there never had been any issue in the case of whether there was any fitness to plead and so in the circumstances a psychological profile would have been of no assistance in the preparation of the defence.
The pre-sentence report and the sentence
- A pre-sentence report was ordered. The court was provided at the end of March 2009 with a pre-sentence report dated 25 March 2009 and a psychological report requested by the Probation Service dated 23 February 2009. The psychological report set out the fact that from the age of 12 the appellant had attended a special school for children with moderate learning difficulties; he left that school at the age of 16. He had held a number of jobs and had lived independently, including a period with a project in Coventry that provided assistance. Since moving out of that project, he had lived on his own but had found it a struggle with independent living skills such as cooking, cleaning and care. He was given a full scale IQ test which produced the result that his IQ fell between 63 and 71 - the extremely low to borderline range of intelligence. The recommendation was that he was a suitable candidate for a community version of the Adapted Sex Offender Treatment Programme, a national offending behaviour programme designed for men with cognitive difficulties.
- The pre-sentence report drew attention to the fact that the appellant's independent learning skills were woeful but, despite his well-defined learning difficulties, he appeared to be stoical in his approach to life. The probation officer concluded there was little doubt he exhibited some cunning in enticing the victim into the house and he was viewed as posing a high risk of harm to children. The pre-sentence report advised that he would be subject to bullying in prison and recommended a community order for three years with attendance at the Adapted Sex Offender Treatment Programme.
- The judge held a hearing on 31 March 2009. In a note made prior to that hearing which he passed to a new advocate subsequently instructed on behalf of the appellant, he recorded his view that the appellant required help before and during the trial that he never received. He set out some of his observations on the appellant's condition.
- It appears that new solicitors were instructed for the appellant on 29 May 2009; on 1 June 2009 the new advocate, Mr Speed, appeared before the judge. On 24 June 2009 the judge sentenced the appellant to a community order with a three year supervision requirement and a requirement that he attend and complete the Adapted Sex Offender Treatment Programme.
The psychiatric reports on the appellant and the application to this court
- On 28 September 2009 Dr Tom Clark, a consultant forensic psychiatrist at the Reaside Clinic, saw the appellant. He produced a report dated 2 November 2009. The conclusion expressed in that report was that on the balance of probabilities the appellant was currently unfit to plead and to stand trial and if Dr Clark had seen the appellant prior to trial, he would have also considered him unfit to plead.
- On 14 March 2010, on the basis of that report, the appellant applied for leave to appeal out of time contending that his conviction was unsafe on the grounds that he was unfit to plead.
- On 7 October 2010 the Crown obtained a psychiatric report from Dr T M Morgan, a consultant psychiatrist at the Brown Oliver Centre in Birmingham. He saw the appellant on 6 October 2010 at a time when the appellant was working as a delivery man for a firm in Birmingham. He also concluded that the appellant at the date of his assessment was unfit to plead and he also believed he had been unfit to plead at the time of the trial.
- The application was referred to the full court by the Registrar. It was suggested by the advocate for the appellant that the matter be heard without the attendance of the psychiatrist; the Crown was prepared to assent to that course, as it felt it had no alternative but to accept the psychiatric evidence satisfied the Pritchard criteria. Neither Dr Clark nor Dr Morgan mentioned the Pritchard criteria at all in their reports; the reports showed that the appellant was working as a delivery driver. As it is the duty of the court to decide whether a person is unfit to plead on the basis of all the evidence, the court ordered that the psychiatrists should attend to give evidence so that their views could be subjected to examination and analysis. A hearing was arranged for 15 February 2011.
The test of unfitness to plead
- The classic test for fitness to plead was set out by Alderson B in Pritchard (1836) 7 C&P 303:
"There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence - to know that he might challenge any of you to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation."
That test was reaffirmed in Podola  1 QB 325 where it was made clear that the question was:
"He is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence – to know that he might challenge (the jurors) to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation, upon this issue, therefore, if you think that there is no certain mode of communicating details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind."
Furthermore it was made clear by Parker LJ as follows:
"As to the word "comprehend", we do not think that this word goes further in meaning than the word "understand". In our judgment the direction…is not intended to cover and does not cover a case where the prisoner can plead to the indictment and has the physical and mental capacity to know that he has the right of challenge and to understand the case as it proceeds."
The decision was followed in Robertson (1968) 52 Cr App R and in Berry (1978) 66 Cr App R 156, where the court emphasised that although a person was highly abnormal, it did not mean that he was incapable of doing those things set out in Pritchard. In R v John M  EWCA Crim 3452, this court, after referring to these authorities made clear that they established the law on the subject. It rejected criticism of the careful directions of His Honour Judge Roberts QC elucidating the test in a case where the issue was determined by a jury at the Central Criminal Court; it described his directions as admirable directions for a jury which explained the established law.
- The Pritchard criteria have been subject to much criticism which is clearly summarised in the Law Commission Consultation Paper: Unfitness to Plead (2010) and discussed in judgments of this court including Murray  EWCA Crim 1792, Moyle  EWCA Crim 3059 and Diamond  EWCA Crim 923. The criteria are as the decisions of this court have made clear the firmly established law. The duty of the court is to consider whether the defendant is unfit to plead according to those criteria in the light of all the evidence before it, including the expert psychiatric evidence.
- In R v Erskine  EWCA Crim 1425, the Lord Chief Justice, giving the judgment of this court emphasised the importance of a contemporary assessment and the duty of the trial judge in these terms at paragraph 89:
"Assuming that the defendant is legally represented (and in cases like these, he will normally be represented by leading and junior counsel, as well as solicitors) his legal representatives are the persons best placed to decide whether to raise the issue of fitness to plead, and indeed to seek medical assistance to resolve the problem. There is a separate and distinct judicial responsibility to oversee the process so that if there is any question of the defendant's fitness to plead, the judge can raise it directly with his legal advisers. Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead, or close to being unfit or that his decision to deny the offence and not advance diminished responsibility can properly be explained on this basis. The situation is, of course, different if, as in Erskine, serious questions about his fitness to plead were raised in writing or expressly before the judge at the trial."
The psychiatric evidence called before the court
- We heard the evidence of Dr Clark and Dr Morgan under s.23. We must record our particular gratitude to Mr Butterfield for the careful way in which he questioned each of the witnesses; he rightly took the position that he should test the evidence given and he did so in a clear manner in the questions addressed to the two psychiatrists.
- The appellant had no history of psychiatric illness. The issue was the effect of his low IQ and his learning disability on his ability to participate in a criminal trial in the light of the Pritchard criteria.
- The evidence of Dr Clark was that the appellant's IQ was associated with significant disability and social handicap; he was vulnerable to anxiety under stressful conditions; his IQ assessment demonstrated relative weakness in relation to attention and concentration and verbal skills. He considered those matters to be of particular importance to a defendant in court. He considered the appellant did know what he was accused of doing and the meaning of guilty in simple terms; however the appellant would not discuss his own situation in detail. In the course of his evidence Dr Clark made clear that although the appellant could discuss the events leading to the allegation, he became anxious when asked about the allegation of touching P and was unable to talk about it. He had a very considerable level of anxiety and could not accept that he had done anything wrong. That level of anxiety and his level of sophistication were such that he could not defend himself properly.
- In his report Dr Clark said he could not satisfy himself that the appellant was able "to understand the components of a particular offence or the nature of his particular offence in the same way that most people would do so". He was very concerned that in consequence the appellant would not be able properly to instruct counsel, as he would either stick rigidly to a position based on inadequate understanding or because he would accept suggestions made uncritically.
- Dr Clark considered the appellant would be liable to become highly anxious when questioned about the alleged offence because he would struggle to understand why an advocate would need to ask questions beyond simply, "Did you do it?". He lacked the social and verbal skills of the more cognitive person to cope with the anxiety. He considered that this might lead the appellant to act in a way that would prejudice his defence because anxiety might be misinterpreted by a jury as being indicative of guilt rather than an inability to cope with the situation that demanded verbal skills. In court this would lead to difficulty understanding and following the evidence. In his oral evidence to us he considered that the jury would not be able to understand the impact of his low IQ upon his presentation. The trial would put him at a substantial disadvantage because of the effect of the stress and anxiety it would cause him in the light of his learning disability.
- Dr Clark was examined in detail about the interview with the police. As we have set out above, in that interview the appellant was able to give a good deal of detail about the events prior to the alleged touching. Dr Clark accepted that the appellant was always entirely clear in his response that he had not touched anyone, that the appellant was able to articulate the fact that P was lying and that he could understand the elements of the offence. However Dr Clark maintained he would not be able to understand a synthesis of the elements within a sequence or a context. He added that people of the appellant's IQ level struggled with social questions.
- We very much regret to have to conclude that we found Dr Clark a somewhat unsatisfactory witness on whose evidence we could not, on analysis, place reliance. He had not prepared himself for the hearing; he had failed to address the Pritchard criteria in his report; the appellant's interview with the police was not a document listed in his report as a document he had considered. Although he claimed he had considered it before giving evidence in the appeal, we find that claim difficult to accept. He was reluctantly prepared to agree, when cross-examined about that interview, that the appellant was able to give an explanation of what had happened and maintain a consistent account (as he did at trial). He was, however, dogmatic in maintaining the assessment that he had made in his report that the appellant was unfit to plead; he could not provide satisfactory answers to the questions posed to him that called into question the basis on which he had made that assessment or how his views related to the Pritchard criteria. For example, Dr Clark suggested that the appellant could accept suggestions uncritically, but it was clear from his interview that he did not do that. As appears from the summary of his evidence we have set out, his reasons for doing so came nowhere near the Pritchard criteria. We regret that we must reject Dr Clark's evidence as evidence on which the court could not rely. Furthermore it would not in any event have formed a basis for concluding that the appellant was unfit to plead.
- Dr Morgan was a more impressive witness. He had particular experience in learning disability. In his report he concluded that the appellant had significant cognitive defects, particularly slow information processing, difficulty in understanding causality and with abstract concept and holding multiple concepts in his memory. He had below average comprehension and vocabulary. He had reasonable verbal reasoning, but was unable to interpret ambiguous language; his reading age was 9 years. He presented as having a mild learning disability. Superficially he could be seen as functioning adequately, but on closer analysis his learning disability affected his social functioning.
- The appellant was able to explain the function of the judge and jury in the court; he understood that the Magistrates' Court tried less serious offences; he was able to understand the charges against him, he was able to understand he could challenge a juror when put in simple language, but the appellant struggled to understand the concept of pleading on issues rather than facts.
- Dr Morgan gave an account of the appellant's current work, including that the appellant could drive, had a delivery job and could operate a satellite navigation system into which others had put addresses; his salary was paid weekly into his building society account; his rent was paid by standing order and he drew money out as he needed it and his account was normally empty at the end of the week.
- He explained in his evidence to us that he considered that the appellant was unfit to plead because he could not understand the details of the evidence or the charge and could not instruct lawyers effectively. A lawyer could not be instructed properly unless a defendant understood the nature of the evidence against him or fully understood the charge which this appellant did not. When he was taken through the appellant's interview, his approach was open. He accepted, for example that there was no sign of suggestibility, that the appellant's account of what had happened was in the right order and clear and that he could understand the concept of a lie. He would be able to understand he was in trouble though he might not understand its precise nature.
- At the conclusion of the evidence, Mr Speed for the appellant submitted that the appellant had been unfit and that we should in the exercise of our powers under s.6 of the Criminal Appeal Act 1968 substitute a finding that the appellant was under a disability and that he had done the act charged against him. The Crown did not accept this. It was contended by Mr Butterfield that the evidence showed that the appellant was fit to plead.
The other evidence
- Although we have rejected the evidence of Dr Clark as evidence on which we could not rely, it is necessary for us to consider the evidence of Dr Morgan against the Pritchard criteria and the other evidence.
- That evidence included:
i) The detailed and clear account he was able to give to the police in interview.
ii) The fact that no-one at his interview, where he was accompanied by a solicitor and an appropriate adult, questioned the appellant's ability to understand what was being asked of him or questioned his responses.
iii) In making the decision to prosecute, the CPS would have had a duty to consider the appellant's position and whether, given the nature of the offence, it was in the public interest to prosecute. The decision to prosecute was taken.
iv) Although at the outset of the trial the judge had enquired about a psychological profile, he had at no point before or during the trial raised the issue of fitness to plead. If there was doubt about his fitness to plead, it would have been the judge's clear duty (as set out in Erskine) to have raised this point at the outset of the trial or, if a doubt arose during the trial, during the trial. This very conscientious judge did not do so.
v) We were told by the advocate for the Crown that there was nothing during the trial that suggested the appellant was unfit to plead. That was also the view of the Crown Prosecution Service.
vi) No one raised the question of the court appointing an intermediary in the exercise of the court's powers clearly set out by Openshaw J in R(C) v Sevenoaks Youth Court  EWHC 3088 (Admin).
vii) Although we have to have regard to the judge's criticisms of the appellant's advocate at the conclusion of the trial, there has been no waiver of privilege so that the court could examine what was set out in the appellant's instructions or in his statement. Nor was any evidence made available from his trial advocate as to his view of the appellant in the light of the two psychiatric reports. As was made clear in Erskine, the contemporaneous views are of great importance.
- It is important to underline three matters:
i) A finding that a defendant is unfit to plead has the consequence that the court must determine whether he did the act in accordance with the procedure set out in s.4A of the Criminal Procedure (Insanity) Act 1964. The court appoints a representative to put the case for the defence, but the defendant himself will not give evidence and ex hypothesi, his ability to give instructions or the ability to obtain an account from the defendant is limited. Depriving the defendant of these very significant rights is a very serious step.
ii) There are available to those with learning disabilities in this age, facilities that can assist. Consideration can now be given to the use of an intermediary under the court's inherent powers as described in the Sevenoaks case, pending the bringing into force of s.33BA (3) and (4) of the Youth and Criminal Evidence Act 1999 (added by the Coroners and Justice Act 2009). Plainly consideration should be given to the use of these powers or other ways in which the characteristics of a defendant evident from a psychological or psychiatric report can be accommodated with the trial process so that his limitations can be understood by the jury, before a court takes the very significant step of embarking on a trial of fitness to plead.
iii) A finding that a defendant did the act in question, has the consequence that the court's powers of disposal are limited to a hospital order (where the issues are too well known to need stating), a supervision order for a specified period of no more than two years or an absolute discharge – see s.5 of the Criminal Procedure (Insanity) 1964. The court's ability either to protect the public or to assist the defendant is severely limited.
These are issues which are also discussed in the Law Commission's Consultation paper.
- It is our understanding that there has been a significant increase in the number of cases where the issue of unfitness is raised. In the light of the considerations we have set out in the preceding paragraphs, we consider that, save in clear cases, a court must rigorously examine evidence of psychiatrists adduced before them and then subject that evidence to careful analysis against the Pritchard criteria as interpreted in Podola. Save in cases where the unfitness is clear, the fact that psychiatrists agree is not enough, as this case demonstrates; a court would be failing in its duty to both the public and a defendant if it did not rigorously examine the evidence and reach its own conclusion.
- A rigorous examination in this case has led us to reject the evidence of Dr Clark for the reasons we have given. As to the evidence of Dr Morgan, we have tested that against the Pritchard criteria as interpreted in Podola. It seems to us clear that on a view of Dr Morgan's evidence as a whole, the appellant was not unfit to plead applying those criteria. Thus although we have granted leave to appeal, we dismiss that appeal.
- It is plain from the most up-to-date report before us that the appellant is benefiting from the 3 year community order made by the judge and is holding down a job; it is of benefit to him that this will continue for a further year which would not be possible if he had been found unfit to plead. If he had been unfit to plead, consideration would have to have been given by us, on the evidence of Dr Morgan, to the making of a hospital order. If the requirements of the legislation which restrict the court's ability to make hospital orders had been satisfied and a place found, that would have been an outcome to the appellant and to the public which would have been far less satisfactory than the order to which he is currently subjected. If, however, in such circumstances, a hospital order could not have been made, the court would have had concerns in relation to the protection of the public.