No: 200001340/Z3
Neutral Citation Number: [2002] EWCA Crim 1091
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday 3rd May 2002
B E F O R E :

LORD JUSTICE WALLER

SIR RICHARD TUCKER:

and

HIS HONOUR JUDGE CRAWFORD QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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J.S.

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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(Official Shorthand Writers to the Court)
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MR A EASTEAL appeared on behalf of the Appellant
MISS L LITCHFIELD appeared on behalf of the Crown
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JUDGMENT
3rd May 2002
1.	LORD JUSTICE WALLER: On 26th January 2000 in the Crown Court at Knutsford before His Honour Judge Edwards the appellant was convicted and sentenced as follows. He was convicted on count 1, robbery. He was given the mandatory life sentence, this being his second serious offence, and a minimum period of ten years' was specified. He was also convicted of possessing a firearm and life imprisonment was imposed concurrently.
2.	The case against S. was in fact overwhelming, as accepted in the advice. The advice puts it in this way.
“The evidence that it was Mr Shepherd that committed the offences is overwhelming. Three eye witnesses picked him out in lawful identification parades. The rucksack that he had been carrying earlier that day was recovered from the building society; it contained various identifying documents, including Mr Shepherd's passport. Video evidence confirmed that the robber had placed his palm upon the counter within the building society and had handled a pamphlet published by the Leek Building Society. Analysis revealed that Mr Shepherd's palm print was on the same portion of the counter and that his fingerprints were on the pamphlet; Mr Shepherd insisted in his defence that he had never been in the building.”
3.	Originally an application was made for leave to appeal on grounds that were refused by the single judge, but the matter was renewed before the full court. On that occasion the application was made on the basis that this appellant had actually been unfit to plead. At that stage there was one psychiatrist's report available from Dr Geelan, but the application was made on the basis that the Court of Appeal should invoke section 6(1) of the Court of Appeal Act 1968. That section provides:
“This section applies where, on an appeal against conviction, the Court of Appeal on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion --
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(b) that the case is not one where there should have been a verdict of acquittal, but there should have been findings that the accused was under a disability and that he did the act or made the omission charged against him.”
4.	The full court on that occasion, in a judgment delivered by Hooper J, were persuaded by Dr Geelan's report to give leave to appeal against conviction on the basis that it was arguable that section 6 should be invoked. But the section required medical evidence from two medical practitioners. Thus it was that the appellant's advisers went to obtain further reports.
5.	The first report they obtained was from a Dr Hardie, a report which we have read and seen and which the Crown have also seen. That report was not as clearly supportive of the appellant's unfitness to plead as Dr Geelan had been. Dr Hardie in essence had not seen the full transcript of the hearing, he had not seen certain other material and he did not feel able to offer a clear opinion as to what the state of the appellant was as at the time that he pleaded. In the event legal aid was supplied so that a further report could be obtained. A further report has been obtained from a Dr Earp. That in very clear terms supported the view of Dr Geelan.
6.	So it is that we, in circumstances where we have two reports, have to consider the question whether this appellant would, on the balance of probabilities, have established an unfitness to plead if the point had been taken at the commencement of his trial in January 2000.
7.	The background seems to be this. In October 1999 at a plea and directions hearing His Honour Judge Elgin Edwards was concerned as to whether the appellant was suffering from mental illness. As it would seem to us he would have been likely to form that view having read the interview which the appellant gave to the police. There are, as Dr Earp opined, clearly statements made in that interview which suggest mental illness.
8.	At that time a report had been obtained from a Dr Matthews. That report was dated 2nd October 1999. That report was not very detailed, but it concluded that the appellant was fit to plead. But of course the position was that that was in October 1999 and it was three months later that the appellant was to be tried. The appellant took, what was on any view, a very strange decision. He took the decision to defend himself. The case against him was overwhelming. As Dr Earp points out, even in his summing-up the judge drew attention to a number of statements made by the appellant during the course of the trial which indicated mental illness.
9.	Following his conviction, the appellant was very soon seen by a prison doctor, Dr Morris. Dr Morris said this in a letter:
“He [that is the appellant] arrived here in September 1999 when he obviously had fixed religious delusions and they referred him to our non-forensic visiting psychiatrist and I enclose a report. When seen on his conviction on 27th January he was obviously grossly psychotic, thought disordered and paranoid. As he had appeared to settle into the prison routine well it was at first assumed that this was sort form of conversion reaction but he has continued with extremely bizarre behaviour with no sign of improvement. I am sure that if he is as psychotic as he appears, his conviction must be unsound. I feel he wants warrant assessment and possibly
transfer to a secure hospital or unit.”
10.	Then Dr Geelan saw the appellant in April 2000. The appellant was then under the care of Dr Geelan over a period at Arnold Lodge. It is absolutely plain that the appellant does suffer from mental illness, paranoid schizophrenia. The only problem is as to when that illness developed. It is quite clear that he suffers from it, and did suffer from it, in April 2000, but was he suffering from it as at the date of the trial?
11.	Dr Geelan in a report, which was dated 26th January 2001 and which was before the previous full court, expressed this view in relation to fitness to stand trial:
“In my view he did understand the charge, and understood the difference between guilty and not guilty. In my opinion it was his grandiose beliefs about his own abilities in combination with mistrust of the legal profession which led to the decision to represent himself. In my opinion his judgment in these matters at that time was impaired by the effects of his schizophrenic illness. Consequently I do not believe that he could instruct his lawyers. Additionally there is sufficient evidence to suggest that his thinking was disordered sufficiently that he could not really comprehend the course of the proceedings, so as to make a proper defence.”
12.	As indicated Dr Hardie then provided an opinion in September 2001, but Dr Hardie, as already indicated, did not see all the documents. Dr Hardie did not in fact interview the appellant because the appellant was too ill to be interviewed in September 2001. Dr Earp did interview the appellant in October last year. He had full access to all the information. He sets out at the commencement of his report the statements, transcripts and the previous psychiatric reports that he had seen. Those include the report of Dr Matthews to which we have referred and obviously the report of Dr Geelan. They also include the report of Dr Hardie. So he had before him the full information. His conclusion was this:
“From my interview with [the appellant], some details of which are recorded in the foregoing pages, I have no doubt that he suffers from paranoid schizophrenia to a serious degree and that so far his response to treatment had not been very encouraging.”
13.	He then sets out the references to the other reports and goes on to say this:
“From subsequent developments, including my reading of the summing-up of the learned trial judge and my recent examination of [the appellant] I think it is safe to say that at the time of his trial he was suffering from a significant degree of (untreated) mental illness which would have seriously impaired his thinking and that whilst he knew the nature of the charges and the difference between 'guilty and not guilty', his ability to plead meaningfully to the indictment to construct a proper defence was seriously impaired. I do not believe that he would have been able to give sensible instructions to his legal representative.
I believe therefore that had the question of unfitness to plead been raised at the time, a jury would have had little difficulty in finding him to be under disability.”
14.	He suggests that the appropriate disposal would be an admission to a secure unit under the provisions of the Criminal Procedure Act.
15.	On the basis of the reports of Dr Geelan and Dr Earp the Crown have thought it right not to resist the quashing of this conviction and the making of an admission order under the relevant statutory provisions. We think it right to conclude that the appellant would have succeeded in establishing his unfitness to plead, but of course, on the overwhelming evidence, the jury would also have concluded that he committed the offences the subject of the two counts on the indictment.
16.	On that basis we think it right to quash the conviction but to make an admission order without limit of time under Schedule 1 Paragraph 1 of the Criminal Procedure Insanity and Unfitness to Plead Act 1991.
17.	Are there any other terms that need to be put into that order?
MR EASTEAL: My Lord, perhaps the point should be made that it is with restriction under section 41 of the Mental Health Act 1983 which then governs the terms under which he is held.
LORD JUSTICE WALLER: That should be made clear and should become part of the order. Thank you very much. Thank you for your help.