Neutral Citation Number: [2009] EWCA Crim 2285
No: 200904471 D5 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 21 October 2009
 
B e f o r e:

LORD JUSTICE STANLEY BURNTON 

MR JUSTICE PENRY DAVEY 
 
MRS JUSTICE SHARP DBE 
 
R E G I N A 

v 

HABIB GHULAM 

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1.1.	LORD JUSTICE STANLEY BURNTON:  This is an appeal by Habib Ghulam, with leave of the Single Judge against his conviction of one count of burglary at the Crown Court at St Albans before HHJ Baker QC and a jury on 7 April 2009.  He was subsequently sentenced to two years' imprisonment.
1.2.	The sole ground of appeal relates to an issue raised at the beginning, and again almost at the end, of the trial, as to the fitness to plead of the appellant, and involves an examination of‑section 4 of the Criminal Procedure (Insanity) Act 1964 (as amended).  For present purposes the facts of the incident that gave rise to the trial are largely relevant.  The burglary took place at the home of a lady, Sylvia van Tellegen, who had had a relationship with the appellant.  It took place during her absence and there was evidence, including DNA evidence, linking the appellant to the offence by the appellant.  He was arrested.  
1.3.	In interview he denied the offence of burglary and said that he had stayed at the house, which had been the subject of the burglary, on a number of occasions, but otherwise made no comment to the questions put to him.  The prosecution case simply was that he was responsible for the burglary, and the defence case at trial was that he had had nothing to do with it.
1.4.	There was a relatively long history of proceedings before the trial.  On the first day of the trial, presumably before it began, an application was made by counsel on behalf of Mr Ghulam, who was not counsel who has represented him today, for the adjournment of the trial.  It was based on a letter from Dr B Azam, a Core Trainee Level 1 in Psychiatry to a Consultant Psychiatrist, namely Dr A Sarkhel, who was a member of the Loughton Community Health Team.  The letter addressed to Mr Ghulam's solicitors and dated 3 April 2009 stated:  
"I am Dr Bushra Azam a Core Trainee Level 1 to Dr A Sarkhel, Consultant Psychiatrist, and I have been asked to write a summary of my assessment today on Mr Habib Ghulam dob 29.7.67 with regard to his offence of Burglary...  
As you know Mr Ghulam suffers from an anxiety and depressive disorder which is complicated by the high misuse of alcohol.  I have assessed him today on the 3rd April 2009 and on the basis of my assessment today and his past psychiatric notes, in my professional opinion Mr Ghulam is not able to stand trial at present as it will deteriorate his mental as well as physical health further. 
My detailed report of today's assessment will follow in the next three to four days." 
1.5.	The judge refused to accede to the application for the case to be taken out of the list, that is to say effectively for the trial to be postponed, on the basis of that letter.  Although it referred to Mr Ghulam being unable to stand trial, the reason given was not that he was unfit to plead, that is to say could not understand the proceedings, give sensible instructions and present a sensible defence, but that presumably the stress of the trial would cause his mental as well as his physical health to deteriorate further.  
1.6.	The judge weighed up that opinion and the consequences, or possible consequences for Mr Ghulam, as against the delay there had already been in the proceedings and the consequences of a further adjournment to the complainant, and decided to proceed with the trial.  That was a matter entirely within his discretion and his exercise of his discretion has not been criticised.  
1.7.	The trial proceeded.  During the course of the trial a question arose as to whether there should be objection taken to a juror.  Instructions were taken by counsel representing Mr Ghulam as to whether or not there should be a challenge to that juror.  In the event no challenge was proceeded with.  
1.8.	At the end of the prosecution case the defence case was presented and Mr Ghulam gave evidence.  The judge of course was able to see all that.  The judge began his summing‑up and had almost completed it when counsel for the appellant made a further application, this time for the jury to be discharged.  At that stage the summing‑up to the jury was virtually complete.  It only remained for them to return after the luncheon adjournment, for the judge to make his closing remarks and for the jury to be sent out.
1.9.	The judge heard the application and refused to discharge the jury.  The basis of the application was a letter, dated 6 April 2009, from the same doctor as had been the author of the original letter.  This time the letter gave a detailed history of Mr Ghulam's condition and then addressed the Pritchard criteria, as they are generally known, as to fitness to stand trial.  Under the heading "Fitness to plead" the letter said: 
"1.At present Mr Ghulam understands the charges of burglary.  
2. He is also able to decide whether to plead guilty or not.  
3. He is unable to exercise his right to challenge jurors because of his poor concentration and his inability to think appropriately at present.  
4. He has limited capability at the moment because of depression and alcohol misuse and also due to his illness.  In my opinion he would not be able to instruct his solicitor to (sic) counsel.   
5.  Currently the patient has very low concentration, attention and motivation levels.  He is also having a lot of negative thoughts ie, thoughts of ending up his life, and in my professional view, he would not be able to follow the course of proceedings.   
6. He would also be unable to give evidence in his own defence as his capability to defend himself is currently very limited because of his low mood, decreased attention and repeated negative thoughts of ending up his life.  
In summary, Mr Ghulam at the time of my assessment was not fit to plead as he does not fulfil the criteria for fitness to plead (Pritchard's criteria)."
1.10.	Regrettably that was the only medical evidence before the judge and regrettably it was produced at effectively the eleventh hour.  If there was going to be a question of unfitness to plead, given that there had been a history of mental illness on the part of Mr Ghulam, that evidence should have been obtained at a much earlier stage.  Moreover, as we shall mention in a moment, the statute requires medical evidence of two doctors.  There later came into existence a letter, dated 23 April 2009, from Dr Sarkhel, the Consultant Psychiatrist who was supervising Dr Azam, which confirmed that he had read the report prepared by her dated 6 April 2009 on the appellant and agreed with its contents.  That letter was not, and could not have been, before the judge.
1.11.	It is submitted on behalf of Mr Ghulam that the medical evidence when the second application was made indicated that a Mr Ghulam was unfit to plead and had been unfit to plead during the trial.  The judge should have discharged the jury and then given directions for the question of fitness to be tried by him or by some other judge, it not having been tried on the basis of that medical evidence: he was unfit to plead and had not received a fair trial, or was not in a position fairly to defend himself.  As the recital at the beginning of our judgment indicates, in due course the jury did indeed convict him.  
1.12.	The course which the judge was required to follow was prescribed by‑section 4 of the Criminal Procedure (Insanity) Act 1964 (as amended).  Regrettably the judge was not taken to the provisions of the statute by either counsel at trial, and therefore did not receive the assistance to which he was entitled.  Section 4 is as follows: 
“(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.  
 (2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.  
 (3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.  
 (4) Subject to subsections (2) and (3) above, 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 the court without a jury.  
 (6) The court 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."  
We shall return to the requirements of the Act shortly, but for the moment it is sufficient to summarise the judge's reasons for refusing to discharge the jury.  He said that he had been able to observe the conduct and fitness to be tried of the appellant during the course of the trial.  The appellant had been able to give evidence.  There had been no indication of any inability to deal with the questions when he gave evidence.  He had been able to give instructions as to whether or not there should be a challenge to a juror.  His conduct during the trial was inconsistent with the opinion of Dr Azam, and relying on his own observation of the appellant he was unable to accept that the appellant was, or had been, unfit to plead.
1.13.	It is apparent that section 4 envisages that in the normal course the issue of unfitness to plead will be raised before or at the very beginning of the trial.  However, this did not happen in the present case, save to the extent of the production of the short letter to which we referred at the beginning of the trial, which, it is conceded on behalf of the appellant, did not sensibly raise the issue of unfitness to plead, but rather contained a contention that his mental state would be affected if the trial were to continue.  
1.14.	The issue of unfitness to plead was not effectively raised until shortly before the jury were sent out.  Subsection (4) requires the question of fitness to be tried as soon as it arises subject to subsections (2) and (3).  It required, therefore, the judge so far as was practicable, to determine the question of fitness to plead when the issue was raised at the end of the trial.  
1.15.	Subsection (5) authorises the judge to determine the issue without a jury.  Subsection (6) is important because it precludes a determination under subsection (5), except on the written or oral evidence of two or more medical registered practitioners, at least one of whom is duly approved.  The question then arises whether the determination referred to in subsection (6) is a determination whether or not a person is fit to be tried, or is only a determination that a person is unfit to be tried.  If there is no evidence satisfying the requirements of subsection (6) a judge is entitled to find that a person is fit to be tried, notwithstanding that the issue has been raised at some stage during the course of the trial.
1.16.	In our judgment, notwithstanding the unqualified wording of subsection (6), it does indeed refer to a determination that a person is unfit to plead. It does not preclude a determination that a person is fit to plead in circumstances where there is not the evidence of two or more registered medical practitioners, at least one of whom is duly approved.  Indeed, in our judgment the statute envisages that the written oral evidence of the two or more registered medical practitioners would both be to the effect that the defendant is unfit to plead.  It is difficult to believe, for example, that the statute would permit a defendant to be found unfit to plead in circumstances where there was a consultant psychiatrist duly approved who was of the opinion that he was fit to plead, and a general practitioner who was of the opinion he was unfit to plead.  
1.17.	There are two good reasons why subsection (6) should be construed as confined to determinations that the defendant is unfit to plead.  The first is that the contrary construction leads to unreasonable, if not absurd, consequences.  It would mean that whenever it is asserted, albeit on inadequate evidence, as occurred in the present case at the beginning of the trial, that the defendant is unfit to plead, the court could not proceed with the trial until the requisite medical evidence had been obtained.  This may mean asking one or more psychiatrists to confirm that the defendant is fit to plead in circumstances where there is no substantial evidence that he is unfit to plead.  
1.18.	On the other hand it is perfectly understandable that Parliament should have required that a finding that a defendant is indeed unfit to plead should not be made except on substantial medical evidence, given the potential consequences for the defendant.  By section 5 if it is found that the defendant did the act, or made the omission, charged against him, but is unfit to plead, the court has power to make a hospital order.  A hospital order has the meaning given in section 37 of the Mental Health Act 1964, that is to say it is an order for the admission of an offender to a hospital in which he will be compulsorily detained.  Section 37(2) precludes the making of a hospital order unless “the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering” from a mental disorder of a specified nature and degree. The 1964 Act imposes requirements on the medical evidence required in such cases and other cases (such as the making of an interim hospital order under section 38 and the making of a transfer direction under section 51) in which there may be compulsory detention of a person in hospital.  Section 54(1) provides: 
"The registered medical practitioner whose evidence is taken into account under section 35(3)(a) above and at least one of the registered medical practitioners whose evidence is taken into account under sections 36(1), 37(2)(a), 38(1) and 51(6)(a) above and whose reports are taken into account under sections 47(1) and 48(1) above shall be a practitioner approved for the purposes of section 12 above by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder." 
1.19.	A doctor who has been so approved by the Secretary of State is approved for the purposes not only of the Mental Health Act, but also for the purposes of section 4 of the 1964 Act.  None of the provisions of the Mental Health Act require the evidence of two medical practitioners, of whom one is approved, for the court to be called upon to consider making a hospital order or an interim hospital order to refuse to make such an order.  All those provisions envisaged that there will be two doctors, one of whom is approved, who are of the opinion that a person is mentally ill and should be compulsorily admitted to a hospital.
1.20.	In our judgment section 4 of the 1964 Act should be read together with, and in the context of, those provisions of the Mental Health Act.  That leads to the conclusion that the evidence of two medical practitioners, one of whom is approved, is required under the 1964 Act (as amended) if a finding is to be made that a person is unfit to plead, but not otherwise.
1.21.	Applying those conclusions to the situation which the judge found himself, in our judgment the judge was, in the exercise of his discretion based on the evidence before him, entitled to consider whether or not the appellant was unfit to plead.  He could not have made a determination that the appellant was indeed unfit to plead without the medical evidence of another doctor, and that doctor would have had to be an approved psychiatrist, as required by the Act.  However, he was entitled to consider what he had observed as to the conduct of the appellant and his ability to defend himself at the trial.  He was, in our judgment, entitled on that basis to consider whether or not he could accept the evidence put before him at the late stage of a single doctor. 
1.22.	Having found that his observations were inconsistent with those of the doctor, he was entitled, in those circumstances, implicitly to make a determination that the defendant was fit, and had been fit, to plead, and therefore to refuse to discharge the jury and to allow the trial to be completed.  The matter was entirely for him in his discretion. Given the circumstances in which the application was made and the very strong evidence that he had seen that the appellant was indeed fit to plead, in our judgment he was entitled to decide as he did. It follows that the appeal is dismissed.
1.23.