No: 200303860/B3 
Neutral Citation Number: [2004] EWCA Crim 1642
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 11th June 2004
 
B E F O R E:

LORD JUSTICE KENNEDY 

MR JUSTICE ASTILL 
 
MR JUSTICE GROSS 
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R E G I N A 

‑v‑ 

R. B.
 
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MR M BAKER appeared on behalf of the APPELLANT
MR R LAWRENCE appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE KENNEDY:  This case concerns the decision of a trial judge in relation to the issue of fitness to plead and fitness to stand trial.
2.	The appellant is 33 years of age and a native of Iraq now resident in the United Kingdom.  In May 2001 and September 2002 he had a relationship with a woman named M.S..  That relationship came to an end but there was thereafter intermittent contact.
3.	On 9th December 2000 M.S. was out in the West End of London with friends who included a man named Manuel. While they were at a bar the appellant arrived and there was some conversation.  Later M.S. and Manuel went to her flat and some time after 5.00 am the appellant forced his way into that flat and was abusive and violent to both M.S. and Manuel. He, it seems, held them at knife‑point for several hours and, after the incident had come to an end, both he and M.S. were too distraught to be interviewed.
4.	On 9th January 2003, that is to say just a month later, he returned to a police station with a legal representative and an appropriate adult.  He then began to hyperventilate and a doctor, who was called, found him to be unfit to be interviewed but fit to be detained and charged.
5.	At a plea and directions hearing arrangements were made for the defence to obtain a pre‑trial psychiatric report.  The appellant was granted bail on condition that he had no contact with M.S..  He acted in breach of that condition by sending her emails and Valentine cards, so on 11th March 2003 he was remanded in custody.
6.	On 18th March 2003 he was examined by Dr Falkowski, a consultant psychiatrist, at the Royal London Hospital and in a report dated 21st March 2003 Dr Falkowski expressed the view that the appellant was fit to stand trial.  He said: 
"Mr B. understands the nature of the charges he faces. He understands the role of his legal representatives and the Court proceedings. He is fit to plead."
A little later: 
"Mr B. is fit to stand trial." 
He was therefore arraigned and he pleaded not guilty to three counts, one count alleging threats to kill, the second count assault occasioning actual bodily harm and a third count of false imprisonment.
7.	On 21st May 2003 a jury was sworn but the appellant discharged his legal representatives so the trial was adjourned.  On 22nd May 2003 fresh legal representatives appeared and the trial then began.  But on 23rd May 2003, the jury was discharged and that trial was aborted because of concerns as to the health of the appellant.  Arrangements were then made for the appellant to be re‑examined and he was seen by Dr Browne, visiting consultant psychiatrist at Her Majesty's Prison Wandsworth.  Dr Browne had already seen the appellant on 28th April 2003 and he saw him again on 2nd June 2003. In his report dated 3rd June 2003, Dr Browne said: 
"On examination I found no convincing evidence of mental illness in the clinical or formal sense. He was somewhat emotional and histrionic in manner, but able to give a good account of himself.  He showed no evidence of thought disorder or of any aberration in his perceptional processes such as delusional or hallucinatory phenomena.  His mood was within normal limits and appropriate to his situation. I judged his intelligence to be in the average range."
In his opinion Dr Browne said: 
"This man is not mentally ill in the clinical or formal sense. His past history would suggest that he could be considered to have some personality problems, but not perhaps amounting to such severity as to warrant a diagnosis of personality disorder. 
It seems that he has exacerbated whatever personality problems he has over the years through abuse of various illicit drugs.  Cannabis, cocaine, LCD and Ecstasy are notorious for their destabilising influence, and associated with offending. 
His behaviour in custody at HMP Wandsworth would suggest that he his histrionic, attention seeking and unstable. Such problems do not, however, warrant a transfer to a psychiatric hospital for any particular attention.  He is not, in my opinion, detainable under a section of the Mental Health Act. 
Whatever help he needs with his personality problems and drug abuse can be given either in custody or in the community when he is free to avail himself of them, should he wish to do so.
I got the impression at interview that Mr B. was emphasising his psychological problems in the hope that he might be transferred to a psychiatric hospital. 
In conclusion, I find him fit to plead, to stand trial and to cope with any punishment awarded by the court." 
That report, as we have indicated, is dated 3rd June and followed an examination on 2nd June.
8.	On 4th June, the case was re‑listed before His Honour Judge Simon Smith at Middlesex Guildhall.  The defence, represented by Mr Baker, applied for a further medical report and sought an adjournment for that purpose.  The judge considered that application and refused it.
9.	The first ground of appeal originally advanced in these proceedings was that the judge was wrong in relation to that decision.  Leave to appeal was refused in relation to that ground and Mr Baker has not, if I can put it this way, directly sought to go behind that refusal.  In our judgment, he was right to adopt that course, because, in reality, the judge's decision could not be impugned.  He had before him not only the report of Dr Falkowski but the extremely recent report of Dr Browne based on more than one examination, the most recent of which was only a couple of days earlier.
10.	Then the question arose as to whether, with that medical evidence and only that medical evidence before him, the judge should accede to a further submission made on behalf of the appellant, namely that a jury should be empanelled to consider his fitness to plead and to stand trial.  As to that, it is necessary to look at the statutory provision which is to be found in section 4 of the Criminal Procedure Insanity Act 1964 and in particular subsections (4), (5) and (6).  So far as relevant, they read as follows:
"(4) Subject to subsections (2) and (3) above, [which for present purposes are not relevant] the question of fitness to be tried shall be determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by a jury...
(6) A jury shall not make a determination under subsection (5) above, except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved."
11.	In substance, therefore, it would seem to follow from the wording of the statute, and Mr Baker accepts this, that a jury can only find a defendant unfit to plead or stand trial if there is medical evidence to that effect.  In the present case the medical evidence was all one way and it was to the opposite effect.  Mr Baker concedes that, if the judge had granted an adjournment and a third medical report had come into existence, which was to the same effect as the medical reports already in existence, then it would be impossible to say that the question of fitness to be tried in reality arose. Therefore there would be no need to empanel a jury to try that question.
12.	So, the reality of the matter is this.  Once the judge decided that there should be no further adjournment, there was no room for a conclusion that there was, at that stage, a question to be determined by a separate jury.  The facts of this cases are different from those which may arise in another case of this kind. Very often, for example, the behaviour of a defendant, as observed by the judge and the lawyers in court, is such as to call for medical assistance in relation to the question of whether he or she is fit to plead and to stand trial.  In a situation like that, it would, of course, be appropriate and necessary for the judge to grant an adjournment so that the advice of a doctor could be obtained.
13.	But that was not the situation here because here the medical evidence was already available from two consultant psychiatrists.  In those circumstances, it seems to us that the conclusion reached by the learned judge was in reality the only conclusion which he could have reached on the day with which we are concerned, namely 4th June 2003.
14.	By way of footnote it is relevant to observe that since this appellant has been in custody following his trial ‑ because what happened was that the trial having begun the appellant changed his plea in relation to counts 2 and 3 in the indictment and was sentenced thereon ‑ he has been transferred to a hospital and we have before us today a report prepared by Dr Whyte, the specialist Registrar to Dr Isherwood which is dated 8th June 2004. That report indicates that it is considered appropriate, today, for him to be detained under section 47 of the Mental Health Act and indeed an order has been made under section 3 of that Act should it be necessary to use that order if the appellant were to obtain his liberty.
15.	That is all by way of footnote because what we are concerned with is the propriety of the decision reached in the Crown Court at Middlesex Guildhall in June 2003.  For the reasons we have given, we have come to the conclusion that that decision was right and therefore this appeal is dismissed.