No: 200301137/B1 
Neutral Citation Number: [2003] EWCA Crim 3452
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 
Date: Friday, 14th November 2003
B E F O R E:

LORD JUSTICE KEENE 

MR JUSTICE RODERICK EVANS 
 
MR JUSTICE COOKE 

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R E G I N A 

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JOHN M
 
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MR J LEE appeared on behalf of the APPELLANT
MR A CAMPBELL appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE KEENE:  The principal issue in this appeal concerns the test to be applied as a matter of law in determining whether an accused is fit to plead to the charge, or charges, against him.
2.	On 18th December 2002 at the Central Criminal Court before His Honour Judge Roberts QC this appellant was found fit to plead.  On 20th December in that same year and in the same court he was convicted of rape, indecent assault on a female, indecency with a child, and taking indecent photographs of a child.  He was subsequently sentenced to a total of eight years' imprisonment.  
3.	He now appeals against conviction following a certificate of fitness for appeal which was granted by the trial judge on the ground that:
"My directions of law to the jury as to what the defendant must be capable of doing if he is to be fit to stand trial may have set the threshold too low." 
4.	He also applies for leave to appeal against conviction on a further ground to which we shall come.
5.	Because of the nature of the issues in this case it is unnecessary to set out the facts of the substantive offences themselves in great detail.  It was the Crown's case that the appellant had sexually abused the grand daughter of his partner in various ways between 1998 and 2000 at times when she was aged between eight and ten.  It was alleged that the abuse had included his partially inserting his penis into her anus, licking her vagina, inserting his finger into her vagina and putting his penis in her mouth, masturbating to ejaculation in front of her and taking the indecent photographs referred to in the indictment.
6.	It was the defence case, when this matter was finally tried, that the offences had not taken place and that the allegations were the result of the complainant's over active imagination.  He gave varying explanations for the photographs, including that he had taken them at the complainant's request.  
7.	The appellant was arrested and interviewed in July 2001 and then released on bail.  He was further interviewed and charged in October 2001.  The issue of the appellant's fitness to plead was raised by the defence and a jury was sworn to try that issue.  For reasons into which we need not go the trial of that issue did not begin until 10th December 2002.  
8.	It was the defence case that the appellant suffered from a serious impairment to his short term memory, known as anterograde amnesia, which rendered him incapable of following the proceedings and giving evidence in his own defence and therefore unfit to stand trial.  It was noted by the judge that it was the appellant's own view that he was fit to stand trial and that he wanted an opportunity to go before a jury.
9.	The prosecution's case was that the appellant was fit to stand trial despite his anterograde amnesia.  It was submitted by the Crown that when in interview with the police and with psychologists and psychiatrists he had demonstrated a good recollection of events during the relevant period, had remembered various names and details about the complainant and about visits to her grandmother.  It was argued that allowances could be made for the appellant's condition by the use of frequent breaks during the trial so that he could then discuss matters with his lawyers.
10.	Apart from the interviews with the police the jury heard evidence about the appellant's fitness to plead from a number of witnesses.  Those were Tom Brabender, a clerk from his solicitors, who visited him on more than one occasion, three psychiatrists, Dr Rachel Jones, called by the defence, Dr Martin Lock, called by the prosecution, and Dr Ian Cumming, appointed by the court, and two psychologists, Dr Fisher and Dr Drennan, called by the prosecution and the defence respectively.
11.	Mr Brabender saw the appellant in November 2001 and said that the appellant appeared to understand the charges and gave explanations for some obscene photographs found in his car, but some of what he had said did not make sense.  Mr Brabender was satisfied that he had been provided on that occasion with instructions by the appellant.
12.	Dr Jones had visited the appellant first in March 2002.  She had carried out some tests.  She concluded that he had performed quite well in respect of those tests on orientation, attention, concentration and immediate memory, but he had not performed well on short term memory after three or five minutes.  She thought that his short term memory had been affected by brain damage resulting from alcohol abuse.  She formed the opinion that he was not fit to stand trial.
13.	In June 2002 the Crown's psychiatric witness Dr Lock first saw the appellant.  He discussed the appellant's past history with him and his evidence was that he received a much more credible and reasonable account than appeared to have been provided to Dr Jones.  Dr Lock also carried out the mini-mental state tests and obtained the same results as Dr Jones, in that the appellant had performed well on everything except short term memory.  Dr Lock asked the appellant a lot of questions about the offences he was charged with and noted that the appellant was able to provide a reasonable summary of the case and information that he alleged was the truth.  Dr lock considered that the appellant was fit to stand trial.
14.	Dr Jones, the defence psychiatrist, visited the appellant again on 19th July.  She said to the court that it was obvious that his physical and mental state had improved considerably since her previous visit.  She carried out the same test and recorded a score which was not indicative of a cognitive impairment.  Her evidence was that on this occasion he was orientated in time, place and person, and his attention and concentration were intact.  His remote memory, language and immediate recall were also intact, but his short term memory remained impaired.  She noted in her report that she considered him to be capable of understanding the charges, challenging jurors, instructing lawyers and following and commenting on the evidence.  She considered that he was fit to stand trial, provided that measures were taken to cater for his memory difficulties, such as the provision of frequent breaks so that matters could be explained to him.  She found no evidence to indicate that he was suggestible.  That then was what she found in July 2002.  
15.	A court appointed psychiatrist, Dr Cumming, also examined the appellant in July 2002.  He agreed with Dr Jones that the appellant was fit to stand trial, provided arrangements could be made to assist him in the difficulties which he might experience due his impaired memory in so far as following the proceedings and passing comments to his lawyers.
16.	However, both Dr Jones and Dr Lock saw the appellant again on 30th September 2002.  As a result of that particular visit Dr Jones returned to her earlier view that the appellant was not fit to stand trial.  She said that he had been unable to recall having seen her before and had said a number of strange things, such as that he was charged with raping his now 18-year old niece when she was four.  
17.	Dr Lock said that during his visit to the cells the appellant had recalled that he had previously examined him in prison in order to produce a report for the court.  The appellant said that he had already seen a psychologist and explained the tests that he had done.  This was true.  Dr Lock remained of the opinion that the appellant was fit to stand trial.  
18.	The two psychologists carried out psychometric tests, one in August and the other in October 2002.  The final findings of both psychologists confirmed those of the psychiatrists, namely that the appellant's general intellectual performance and concentration was good, but his short term memory, beyond a couple of minutes, was poor.  Both psychologists concluded that the appellant was not fit to stand trial.
19.	In the light of the psychometric tests all three psychiatrists reconsidered their opinions.  Dr Jones said that they had confirmed her changed view, namely, that the appellant was not fit to stand trial.  Dr Cumming said that the results of the tests had caused him to change his opinion and that he now also believed that the appellant was not fit to stand trial.  However, Dr Lock did not agree and thought that the impairment of the appellant's short term memory did not render him unfit to stand trial, although, as he previously noted, special steps would be required in order to deal with his memory problems.
20.	The judge directed the jury with great care as to the legal test to be applied to this issue.  Indeed, he put his directions into typescript after discussing them with counsel and gave the jury copies.  He began by telling them that they had to decide whether the defence had persuaded them on a balance of probabilities that the appellant was suffering from a disability which rendered him unfit to stand trial.  He directed them that in order to be fit to stand trial at all a defendant must be capable of doing six things.  He told them that it followed that it was sufficient for the defence to persuade them on the balance of probabilities that any one of those six things was beyond the appellant's capabilities.  Those six things were as follows: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; (6) giving evidence in his own defence.  
21.	In respect of each item the judge gave the jury an explanation of what it meant.  Thus, when it came to the item "instructing his solicitors and counsel", the judge began by saying this:
"This means that the defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence.  It involves being able (a) to understand the lawyers' questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishes to give.  It is not necessary that his instructions should be plausible or believable or reliable, nor is it necessary that he should be able to see that they are implausible, or unbelievable or unreliable.  Many defendants put forward cases and explanations which are implausible, unbelievable or unreliable.  The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not.  That is what the jury are there for."  
22.	As to item (5) on his list, "following the course of the proceedings", the judge's directions included this passage: 
"This means that the defendant must be able (a) to understand what is said by the witness and by counsel in their speeches to the jury and (b) to communicate intelligibly to his lawyers any comment which he may wish to make on anything that is said by the witnesses or counsel.  Few defendants will be able to remember at the end of a court session all the points that may have occurred to them about what has been said during that session.  It is, therefore, quite normal for the defendant to be provided with pencil and paper so that he can jot down notes and pass them to his lawyers either as and when he writes them, or at the end of the session. (Lawyers normally prefer not to be bombarded with too many notes while they are trying to concentrate on the evidence).  There is also no reason why the defendant's solicitor's representative should not be permitted to sit beside him in court to help with the note taking process." 
23.	A little later under the same heading he said this:
"It is not necessary that the defendant's comments on the evidence and counsels' speeches should be valid or helpful to his lawyers or helpful to his case.  It often happens that a defendant fails to see what is or is not a good point to make in his defence.  The important thing is that he should be able to make whatever comments he wishes." 
24.	As to item (6), "giving evidence if he wishes in his own defence", the directions included the following:
"This means that the defendant must be able (a) to understand the questions he is asked in the witness box, (b) to apply his mind to answering them, and (c) to convey intelligibly to the jury the answers which he wishes to give.  It is not necessary that his answers should be plausible or believable or reliable.  Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable.  Many defendants and other witnesses give evidence which is either in whole or in parts implausible, unbelievable or unreliable.  The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not.  That is what the jury are there for.  Nor is it necessary that the defendant should be able to remember all or any of the matters which give rise to the charges against him.  He is entitled to say that he has no recollection of those events, or indeed of anything that happened during the relevant period."
25.	All the psychiatric witnesses in the case agreed that the appellant was capable of understanding the charges against him, of exercising the right to challenge jurors and of instructing his lawyers.  They were divided on the other three items.
26.	In due course the jury found the appellant to be fit to plead and to stand trial.  The appellant's case on this aspect of the appeal is that the judge misdirected the jury by setting the test too low with the result that it was too easily met.  Mr Lee, who appears on behalf of the appellant, submits that the authorities demonstrate that a defendant must be able to comprehend the proceedings for himself.  He argues that the state of the evidence was such that the directions to the jury needed to be put in more emphatic terms.  The overwhelming weight of the evidence was in favour of the defendant and even Dr Lock was somewhat tentative as to the short term memory of this man.  Indeed, Mr Lee goes so far as to contend that the verdict was perverse.  On the other hand, he has not been able to point to any part of the directions which were given, and to which we have referred, which was, in his submission, inadequate or inaccurate as a matter of law.
27.	In addition it is said, at least in the skeleton argument submitted, that the first two of the six items should not have been included, that is to say understanding the charges and deciding whether or not to plead guilty.  That has not been elaborated upon orally today and for our part we do not understand this last point for two reasons.  First, because to include additional tests, even if unnecessary, can scarcely lower the standard of the test to be met when the judge had said that a failure to be able to do any one of the six things would suffice to render the appellant unfit to stand trial.  Secondly, because both those two items objected to are encompassed in one of the matters which it is well established have to be considered, namely, whether the accused can plead to the indictment.  That conveniently brings us to the authorities.  
28.	The original formulation of the appropriate test is that set out in Pritchard (1836) 7 and P 303 where in the case of a deaf mute it was said at page 304: 
"There are three points to be inquired 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 proceedings on 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.  Upon this issue, therefore, if you think that there is no certain mode of communicating the 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.  It is not enough, that he may have a general capacity of communicating on ordinary matters." 
29.	That passage from the address to the jury by Alderson, B in Pritchard has been endorsed subsequently in a number of authorities.  In Podola [1960] 1 QB 325 that passage was expressly approved by the Court of Criminal Appeal presided over by the Lord Chief Justice, Lord Parker.  In that case it was held that a loss of memory would not necessarily render an accused unfit to plead if he was able to do the various things described in Pritchard.
30.	In Robertson (1968) 52 Cr App R 690 the Pritchard test was said to be one which had been confirmed and followed "over and over again".  This Court there held that the mere fact that a defendant may not be capable of acting in his best interests during the trial is not sufficient to warrant a finding of disability and that a jury should not be directed that the issue is whether he is able "properly" to instruct counsel, or to give "proper" evidence.  Again, this Court in Berry (1978) 66 Cr App R 156, presided over by Geoffrey Lane LJ, as he then was, followed Pritchard and Robertson.  The Court emphasised that merely because a defendant was highly abnormal did not mean that he was incapable of doing those things set out in Pritchard.  
31.	Those authorities clearly establish the law on this topic in this jurisdiction.  When we consider the judge's directions in the present case in the light of those authorities we can find no deficiency in them.  Indeed, this Court regards them as admirable directions.  They do not set the test of fitness to plead at too low a level.  
32.	The issue of unfitness to plead is essentially one for the jury: see the Criminal Procedure (Insanity) Act 1964 section 4(5).  Whatever view this Court might have taken, given the available evidence, had it been the jury is nothing to the point, once there was evidence to go to the jury.  We do not accept that the jury's verdict here was perverse.  There was evidence that the appellant was fit to stand trial, namely, that of Dr Lock.  There was no significant disagreement between Dr Lock and the other expert witnesses as to the impairment of this man's short term memory.  Where they differed was as to his fitness or unfitness to stand trial and on some of the specific elaborations of that test set out by the judge in his directions to the jury.  But ultimately the question of fitness or unfitness to stand trial is a matter for the jury rather than for the psychiatrists, even though there has to be psychiatric evidence for the jury to arrive at a finding of unfitness to plead.  We can find nothing in this ground of appeal to cast doubt upon the safety of the ultimate conviction, or upon the jury's finding of unfitness to plead.
33.	The other matter which arises is one on which the appellant seeks leave to appeal.  It is contended that the judge should not have allowed the transcripts of the interviews by the police with the appellant to go to the jury which was determining this issue of fitness to plead.  Objection was taken at trial to their admissibility on the basis that they were not relevant to the issue since they related to a time over a year earlier when the appellant's mental health had not or might not have deteriorated to the extent which it had by the date of trial.  Moreover, it was contended that the interviews were more prejudicial than probative and so should be excluded under section 78 of the Police and Criminal Evidence Act 1984 ("PACE").
34.	The judge rejected these arguments.  He ruled that the interviews did have a relevance to the issue, particularly because they could assist on the question which had been raised of the accused's suggestibility and he took the view that it would suffice if the jury were warned not to assume that his performance at the time of those interviews necessarily indicated how he might perform at trial.  In due course, indeed, in summing-up the judge gave the jury such a warning.  He acknowledged the risk of some prejudice, but he concluded that that could be guarded against by appropriate directions to the jury.  He decided that the probative value of the interviews was not outweighed by the prejudice which they would cause.
35.	On behalf of the appellant Mr Lee now seeks leave to challenge that ruling.  He disputes the relevance of the interviews, arguing that they could not have been probative of the appellant's mental state in December 2002 when that issue arose to be determined, particularly because there was evidence that his mental state was slowly deteriorating over time.  It is submitted that, even though the interviews contained a number of lucid answers by the appellant, they were irrelevant.  
36.	Further, it is also submitted that given the nature of the allegations which were spelt out in the interviews, allegations made of course by the complainant in this matter, the jury might have failed to focus solely on the true issue of the appellant's fitness to plead.  Mr Lee describes the interviews as a prejudicial distraction because of their contents.
37.	We deal, first, with the issue of relevance.  It seems to this Court that the transcripts of what the appellant had said in 2001 had some relevance to the issue before the jury.  It was the only first-hand detailed description available to them of how the appellant answered or dealt with questions put to him, which was potentially of value to them on this issue.  They did not after all have the advantage of hearing from the appellant in the witness box.  Of course, they had to bear in mind that they were concerned with his mental state in December 2002, not in 2001 at the time when the interviews were conducted.  But it is not right to say that the appellant's mental state was slowly deteriorating since those interviews took place.  The evidence of all three psychiatrists tended to show that his mental state had in fact improved, if anything, by June and July of 2002, certainly as compared to what Dr Jones had found in March of that year.  The reality seems to have been that the appellant's mental state may have fluctuated somewhat over time.
38.	Certainly it would have been more valuable in those circumstances to have had interview material in question and answer form available shortly before the date when this issue was tried, but we do not accept that the interviews from 2001 were without relevance or probative value.  Moreover, both Dr Jones and Dr Lock had made use of them and had to some extent relied on the interview transcripts in making their own assessments.
39.	Mr Campbell, on behalf of the Crown, tells us that he cross-examined Dr Jones about the interviews and the appellant's apparent lucidity as revealed in them and did so in some detail.  It was after that that the jury asked to see the interviews.  We also accept that the interviews showed that the appellant's long term memory was reasonably good so that he could remember details of the events giving rise to the charges.  This tended to confirm, therefore, the finding of the psychiatrists that, if anything, it was in respect of his short term memory where there were problems.  We conclude therefore that the interview transcripts were relevant to the issue which the jury had to try.
40.	If that is right, then what remains is the judge's exercise of his discretion under section 78 of PACE.  That exercise of discretion is one with which this Court will normally only interfere if it is perverse: see Quinn [1995] 1 Cr App R 480.  It is certainly true that the interview transcripts contained material prejudicial to the appellant, but that presupposes that the jury was not prepared to follow the judge's careful directions as to how they should approach the issue before them, namely, fitness to plead.  We have already emphasised the careful and detailed way in which the judge directed them on that issue.  The jury, in any event, were bound to hear about things said in interview because the psychiatrists' reports dealt with what had been said by him in the course of those interviews by the police.  
41.	The judge here approached the balancing exercise required under section 78 of PACE in a proper manner, and, whether this Court would have arrived at the same result or not, it cannot, in our view, be successfully contended that that result fell outside the limits of the decisions properly open to the trial judge in the circumstances of this case.  We do not find that his exercise of discretion was perverse.  In those circumstances we reject the application for leave to appeal on this further ground.  
42.	It follows that the appeal against conviction must be dismissed.