Marcantonio v R. (Rev 1) [2016] EWCA Crim 14

[2016] EWCA Crim 14
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/02/2016Case No 2013 05021 C3
Before
LORD JUSTICE LLOYD JONESMR. JUSTICE EDISHIS HONOUR JUDGE WAIT,Sitting as a judge of the Court of Appeal (Criminal Division)ON APPEAL FROMHHJ GOLDSTAUB QCT20117306
Between
Robert MarcantonioAppellantReginaRespondentON APPEAL FROMHHJ BISHOPT20140055Case No: 2015 00606 C2
Between
Dick ChitolieApplicantReginaRespondent
Mr. Duncan Atkinson, Mr. Paul Mitchell, Mr. Richard Stevens and Mr. Matthew Curtis (instructed by Crown Prosecution Service) for RespondentMs. Brenda Campbell (instructed by G.T. Stewart) for MarcantonioMr. Chitolie appeared in person for in personMr. Louis Mably (instructed by the Registrar) as amicus curiaeHearing Hearing dates : 16 th& 17 th December 2015
JudgmentLORD JUSTICE LLOYD JONES :
[1]This is the judgment in two cases, an appeal against conviction (R v. Marcantonio) and an application for permission to appeal against conviction (R v. Chitolie), which have in common the submission that the appellant/applicant in each case was unfit to plead, within section 4, Criminal Procedure (Insanity) Act 1964, at the time of his trial, and that this court should therefore quash his conviction and consider the exercise of its powers under section 6, Criminal Appeals Act 1968. A third case (R v. T) was heard at the same time. A separate judgment is handed down in that case which, because of the orders made, is subject to reporting restrictions. A fourth case (R v. John Cawley) in which an application was made for leave to appeal against conviction and which raised the same issues was originally listed to be heard at the same time as the other cases but was abandoned the day before the hearing. Legal principles The applicable test

Legal principles

[2]The question whether an accused is fit to plead is determined by the application of tests laid down at common law. The direction of Baron Alderson to the jury in Pritchard (1836) 7 C&P 303, 304-5 remains the foundation of the current law. “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 on the trial so as to make a proper defence - to know that he might challenge [any 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 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.”[3]In Podola [1960] 1 QB 325, 353, a case concerning hysterical amnesia, Lord Parker CJ stated that these tests had been followed so often that they may be said to be “firmly embodied in our law”. Lord Parker observed:
“So far as “make a proper defence” is concerned, it is important to note that the words do not stand alone, but form part of a sentence the whole of which is “whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence”
. In other words, this passage itself defines what Alderson B. meant by “make a proper defence”. 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 given by Alderson B. 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.” (at p. 354)[4]The Pritchard test has been reinterpreted by the courts to make it more appropriate for the modern trial process. This is apparent, for example, in John M [2003] EWCA Crim 3452, where this court, following the earlier authorities including Pritchard and Podola, approved the written directions of His Honour Judge Roberts QC at first instance. (John M was decided before section 22, Domestic Violence, Crime and Victims Act 2004 provided that the decision whether an accused is unfit to plead shall be taken by a judge alone, rather than by a jury as had previously been the case.) The judge directed the jury that they had to be sure whether the defence had persuaded them on a balance of probabilities that the accused 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 and 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 defendant’s capabilities. Those six things were:(1) understanding the charges;(2) deciding whether to plead guilty or not;(3) exercising his rights to challenge jurors;(4) instructing solicitors and counsel;(5) following the course of the proceedings;(6) giving evidence in his own defence.

The judge provided an explanation of each in terms which included the following:

[5](1) The ability to instruct his solicitor and counsel (para.21):
"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." (2) The ability to follow the course of the proceedings (paras.22-23): "
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... 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." (3) The ability to give evidence (para.24):
"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."
[6]The Pritchard criteria have been subjected to much criticism. In this regard we draw attention to the judgments of this court in Murray [2008] EWCA Crim 1792, Diamond [2008] EWCA Crim 923 and Walls [2011] EWCA Crim 443 and to the Law Commission’s Report on Unfitness to Plead (Law Com No 364; 13 January 2016). However, as matters presently stand, the Pritchard criteria are firmly established as the law which has to be applied by this court.[7]It seems to us, however, that in applying the Pritchard criteria the court is required to undertake an assessment of the defendant’s capabilities in the context of the particular proceedings. An assessment of whether a defendant has the capacity to participate effectively in legal proceedings should require the court to have regard to what that legal process will involve and what demands it will make on the defendant. It should be addressed not in the abstract but in the context of the particular case. The degree of complexity of different legal proceedings may vary considerably. Thus the court should consider, for example, the nature and complexity of the issues arising in the particular proceedings, the likely duration of the proceedings and the number of parties. There can be no legitimate reason for depriving a defendant of the right to stand trial on the basis that he lacks capacity to participate in some theoretical proceedings when he does not lack capacity to participate in the proceedings which he faces. It is in the interests of all concerned that the criminal process should proceed in the normal way where this is possible without injustice to the defendant. Moreover, it seems to us that such an approach is essential, given the emphasis which is now placed on the necessity of considering the special measures that may assist an accused at trial. (See, for example, Walls [2011] EWCA Crim 443; [2011] 2 Cr App R 61.) The effectiveness of such measures can only be assessed in the context of the particular proceedings.[8]Nevertheless, the current test as developed in the judicial authorities is expressed as a single, indivisible test which must be met in its entirety. A defendant will not be fit to plead or stand trial if any one or more of the specified competences is beyond his capability. (See, for example, the direction of the judge in John M.) In particular, the current test does not distinguish between capacity to participate effectively in a trial and capacity to plead guilty. It seems to us that a strong case could be made out for a test which draws such a distinction. There will be cases in which the defendant would be unable to follow proceedings at trial or to give evidence but would not lack the decisional capacity necessary for entering a plea of guilty. We would question the desirability of denying such a defendant the option of pleading guilty Once it is established that a defendant who intends to plead guilty has the capacity to do so and that his plea is a sound basis for a safe conviction, it is difficult to see why he should be considered unfit to plead on the ground that he would be unable to understand a trial which will not take place or to give evidence in his defence when the evidence he would give, if called, is that he is guilty and he would not therefore be cross examined. Moreover, in such circumstances difficulties are likely to arise in defining the issues which will arise at trial. If the test has to be applied to the actual proceedings which are contemplated and not to every type of proceedings which might be brought, it seems inconsistent to disregard the input of the defendant into that trial. The course of a criminal trial is greatly affected by the conduct of the defendant. The issues are defined by his defence. Thus, when contemplating the proposed trial an important question may be whether the defendant has capacity to make admissions and, if so, what admissions he chooses to make. The answer will identify the evidence which the prosecution must call and which the defendant must be able to follow. It will also define the instructions which he will give which will form the basis of the cross-examination on his behalf which he must also be able to follow.[9]We note that this issue is addressed by the Law Commission in its recent report on Unfitness to Plead where it recommends the introduction of a second test, one of capacity to plead guilty, for defendants who would otherwise lack the capacity to participate effectively in a trial. However, this issue was not fully argued before us and, as will become apparent, it is not necessary for us to decide it in these proceedings. Accordingly, we do not do so.

Procedure

[10]The procedure to be followed when an accused might be unfit to plead and the consequences of a finding of unfitness to plead are set out in the Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5. Section 4 provides in relevant part:
“(1) This section applies where on the trial of a person the question arises (at the instance of the defense 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.”
Section 4A provides:
“(1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability. (2) The trial shall not proceed or further proceed but it shall be determined by a jury— (a) on the evidence (if any) already given in the trial; and (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. (3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him. (4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion. Section 4A provides: (a) on the evidence (if any) already given in the trial; and (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. (5). A determination under subsection (2) above shall be made— (a) where the question of disability was determined on the arraignment of the accused, by a jury other than that which determined that question; and (b) where that question was determined at any later time, by the jury by whom the accused was being tried.” 12. Section 5 provides in relevant part: “(1) This section applies where– (a) a special verdict is returned that the accused is not guilty by reason of insanity; or (b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him. (a) a special verdict is returned that the accused is not guilty by reason of insanity; or (b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him. (2). The court shall make in respect of the accused– (a) a hospital order (with or without a restriction order); (b) a supervision order; or (c) an order for his absolute discharge. (3). Where– (a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and (b) the court have power to make a hospital order, the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection). (4). In this section– “hospital order” has the meaning given in section 37 of the Mental Health Act 1983; “restriction order” has the meaning given to it by section 41 of that Act; “supervision order” has the meaning given in Part 1 of Schedule 1A to this Act.”
Rule 38.10 of the Criminal Procedure Rules states: “(1) This rule applies where – (a) it appears to the court, on application or on its own initiative, that the defendant may not be fit to be tried; and (b) the defendant has not by then been acquitted of each offence charged by the indictment. (2) The court – (a) must exercise its power to decide, without a jury, whether the defendant is fit to be tried;… (2) The court – (a) must exercise its power to decide, without a jury, whether the defendant is fit to be tried;…[11]If the issue of fitness to plead is raised by the defence, the burden of proof is on the defence to establish on a balance of probabilities that the accused is unfit (Robertson [1968] 3 All ER 557). If it is raised by the prosecution, the burden of proof is on the prosecution to establish beyond reasonable doubt that the accused is unfit (Podola [1960] 1 QB 325).[12]In Norman [2008] EWCA Crim 1810; [2009] 1 Cr App R 13 the Court of Appeal gave the following procedural guidance:(1) Once the issue of fitness to plead has been raised, very careful case management is required to allow early resolution of the issue.(2) Once full information is available, the court should consider carefully whether to postpone determination of the issue, or to proceed to an immediate determination.(3) If the court determines that the accused is unfit to plead, it is the court’s duty under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 carefully to consider who is the best person to be appointed by the court to put the case for the defence.[13]In Walls [2011] EWCA Crim 443; [2011] 2 Cr App R 61, Thomas LJ, delivering the judgment of this court, emphasised three matters (at [37]):
“(1) 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. (2) 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. (3) 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.”
[14]He went on (at [39]) to emphasise that the court must rigorously examine evidence of psychiatrists adduced before it 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.”

Approach to fitness to plead on appeal

[15]Section 6 of the Criminal Appeal Act 1968, provides in relevant part:
“ (1) 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- … 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. (2) The court of appeal shall make in respect of the accused – a hospital order (with or without a restriction order); a supervision order; or an order for his absolute discharge. …” a hospital order (with or without a restriction order); a supervision order; or an order for his absolute discharge. …”
[16]This court has emphasised the need to exercise caution in addressing the issue of fitness to plead when on an appeal against conviction it is submitted that an accused was not fit to plead at the time of his trial. InErskine [2009] EWCA Crim 1425; [2009] 2 Cr App R 29, Lord Judge CJ stated (at para.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.” (See also Moyle [2008] EWCA Crim 3059.)

Regina v Roberto Marcantonio

[17]On 19 September 2011 between 10.30 a.m. and 11.30 a.m. a burglary occurred at a house in New London Road, Chelmsford. The property had been left locked and secured but when the occupant returned she found a rear window was broken and the house had been searched untidily. She and her husband had lived there for 54 years and numerous items of sentimental and monetary value had been stolen, including, jewellery, ornaments and a camera. The total value of the stolen goods was approximately £11,000. Fresh blood was found near the broken window which on forensic analysis was found to match the blood of the appellant, Roberto Marcantonio.[18]The appellant was arrested on 9 October 2011 at his home address on the Old Kent Road in South East London. A quantity of cash (approximately £2,000)was found in a pocket of a pair of trousers and seized by the police. At the time of his arrest he was living in the community with support, receiving psychiatric services for older adults in South East London, and had a named care co-ordinator. In interview he made no comment. He was charged and remanded into custody to HMP Chelmsford.[19]On 19 December 2011 in the Crown Court at Chelmsford (H.H.J. Goldstaub QC) the appellant pleaded guilty to an offence of burglary contrary to section 9(1)(b), Theft Act 1968 and was sentenced to a term of 5 years imprisonment.[20]On 25 May 2012 the Criminal Division of the Court of Appeal (Elias LJ, Owen J and the Recorder of Liverpool) dismissed an appeal against sentence.[21]On 2 October 2013 an application for leave to appeal against conviction was lodged, 1 year and 9 months out of time, by new solicitors. The issue raised was the appellant’s fitness to plead. It was submitted that the conviction was unsafe in light of the opinions expressed in the reports of three consultant psychiatrists, Dr. Fawzi, Dr. Larkin and Dr. Hillier, all of whom considered that the appellant was unfit to plead at the time of his arraignment.[22]The single judge referred the application to the full court and directed expedition. On 13 March 2014 the full court (Sharp LJ, Silber J, His Honour Judge Lakin) adjourned the matter and gave directions in relation to waiver of privilege, service of material and set a proposed timetable. On 13 May 2014 Mr. Peter Barlex, the solicitor advocate who had represented the applicant in the Crown Court, provided a section 9 statement and supporting documentation. On 22 January 2015 the Full Court (Bean LJ, Irwin and Turner JJ) granted leave to appeal against conviction and gave directions.[23]The appellant was released on licence on 13 April 2014. He was then re-arrested for another matter but those proceedings were discontinued and he was released into the community on licence once again in November 2014. Evidence Mr. Peter Barlex[24]The statements of Mr. Peter Barlex disclosed that at a conference at Chelmsford Crown Court before the plea and case management hearing on 19 December 2011 the appellant had raised issues such as dementia but had accepted that he was guilty and had been involved in the burglary. The question of fitness to plead did not arise and Mr Barlex was entirely happy that the appellant had fully understood the nature of the allegation and he had no concerns about the appellant’s ability to follow proceedings and to discuss the evidence. In oral evidence Mr. Barlex stated that the conference had lasted ten or twelve minutes, possibly a quarter of an hour. The appellant mentioned that he was suffering from dementia. Mr. Barlex said that he made an assessment there and then that it was not an issue. They discussed the case including evidence, plea, mitigation and sentence. The appellant gave a brief account of his involvement, explaining what had happened.

Dr. Waleed Fawzi

[25]Dr. Fawzi is a consultant psychiatrist. He examined the appellant on three occasions: in February 2010, in May 2013 in connection with these proceedings and in September 2014 in connection with other proceedings. His opinion is based on these interviews and on medical records and prison records from 2007 onwards.[26]In his report dated 24 July 2013 Dr. Fawzi stated that the appellant suffered from multiple psychiatric morbidities, which had been assessed, diagnosed and treated since 2007, namely schizophrenia, depression and dementia, complicated by intermittent use of drugs and alcohol. He was currently stable in mental state, with marked stable cognitive deficits, which rendered him extremely vulnerable in the community and impacted on his capacity to make decisions. His understanding of events and his behaviour equated to that of a child. In Dr. Fawzi’s opinion he did not recognise that he was involved in a burglary and had limited understanding of the consequences of his actions. He was most probably led by his acquaintances under false pretences to the burgled property. His presentation in 2010, prior to the offence, and in 2013, after sentencing, was largely unchanged. This was also confirmed by numerous assessments over the course of 3 years. It was extremely unlikely that his behaviour was orchestrated as it was almost impossible, given his cognitive impairment, to maintain the exact clinical picture over several years. It was highly unlikely that he was fit to plead at the time of his sentencing in December 2011. He was unable to comprehend the course of the proceedings. His ability to instruct his legal representative was compromised by his limited understanding of the charge and poor knowledge of the evidence against him.[27]In a further report dated 22 April 2015, Dr. Fawzi responded to the report of Dr. Mackenzie which had not caused him to change his original opinion. The appellant was simply not capable of recreating a fabricated clinical presentation consistently over 5 years. The fact that he had tried to use his illness to his advantage and might have exaggerated his symptoms did not mean he was free of impairment.[28]In his oral evidence Dr. Fawzi was taken through the appellant’s medical records. In 2009 there had been concerns about his cognitive state. In May 2010 he was prescribed anti-psychotic medication and anti-depressants in the community. The appellant was first referred to Dr. Fawzi in August 2010. Dr. Fawzi considered that the appellant suffered from cognitive impairment but was not psychotic at that time. His cognitive impairment was apparent from his score of 17/30 on Mini Mental State Examination (“MMSE”). Nevertheless Dr. Fawzi had at that time stated his view that the appellant was able to cope with his impairment and remained very functional. Dr. Fawzi said in his evidence that he was surprised that M was able to travel by bus to see him and able to live independently. He was not globally impaired; there were pockets of ability. He was capable of living in the community with support. In a letter he wrote at that time Dr. Fawzi expressed the view that he was very functional but very vulnerable due to psychiatric illness.[29]On the 14 May 2011 the appellant was arrested in connection with some graffiti. He had not been taking his medication. At this time he was sectioned for a brief period and considered not capable of giving his consent. In June 2011 Dr. Shetty had found that the appellant scored only 10/29 on MMSE but this was at a time when he was very unwell with psychotic illness. Dr. Fawzi agreed with Dr. Larkin that a score in the range of 10-19 means that the person is generally unlikely to be able to function independently and unable to take slightly complex decisions such as how to take a journey, or whether to participate in treatment.[30]In October 2011 he was arrested for burglary. On 11 October 2011 he received a specialist CPA assessment at Chelmsford Magistrates Court as dementia was indicated on his prisoner escort record. The assessment recorded that his memory was impaired and he was unaware of dates, time and whereabouts. He was vulnerable. Throughout November and December 2011 there was a consistent picture. He was detained on health care with moderate cognitive deficit. His prison medical records state that on 19 December 2011 he returned from court stating he thought he pleaded today but was not sure. He appeared confused over his attendance at court and was not sure about what had happened or who was his solicitor. At the time of the proceeds of crime hearing on 27 March 2012 his record states he had no idea of what happened in court. On 26 May 2012 following his appearance in the Court of Appeal he is recorded as not knowing what had happened at the hearing. It was Dr. Fawzi’s opinion that he was functioning well in custody but was confused and suffering cognitive impairment.[31]When Dr. Fawzi saw the appellant on the 21 May 2013 it was his impression that he tried very hard. He scored 22/30 on MMSE, the upper end of the moderate bracket. He scored 42/100 on the Addenbrookes Test which is more comprehensive. These results showed a severe cognitive impairment. However this was partly explained by poor education and language skills. The results were at the boundary of moderate/severe for dementia. Dr. Fawzi was satisfied he was not malingering. He stated it would be impossible for him to fool this number of people for this length of time. Dr. Fawzi also stated that at this interview in May 2013 the appellant gave an account of the burglary. He knew what a burglary was. Dr. Fawzi says that he considered the appellant’s ability to give instructions. In his view he would not understand the consequences of pleading guilty. He did not think he would have been able to make an informed decision as to whether to plead guilty or not.[32]When Dr. Fawzi saw the appellant in September 2014, in relation to a separate criminal matter which was later discontinued, he scored 16/30 on the MMSE. When Dr. Fawzi asked him how he was going to plead M replied “What should I plead?” In Dr. Fawzi’s view this was consistent with the way he had appeared since 2010. It was consistent with his cognitive impairment and indicated that he would do what he was told without understanding the consequences.[33]Dr. Fawzi stated that he was convinced on the balance of probabilities that the appellant was not fit to plead. He was not fit to decide what plea to enter. Even with modifications, this man would struggle. His memory span would not allow him to hold and process the information necessary.[34]In cross examination Dr. Fawzi accepted that, throughout the time he had known him, the appellant had functioned with support in the community. There was, he said “a disconnect between his scores and his ability to function with a lot of support.” Dr. Fawzi also accepted that there was an educational bias to the test. Dr. Fawzi accepted that the appellant had been able to describe to others the burglary and his role in it, as he had to Dr. Fawzi in May 2013. He understood that it was illegal and he understood that he had admitted that in court. Dr. Fawzi also accepted that during the judge’s sentencing remarks the appellant had corrected him as to some dates and had also accepted that he had committed the burglary. However, Dr. Fawzi very much doubted that he would be capable of understanding potential defences available to him such as duress. Furthermore, he would not be able to understand what a guilty plea would entail.

Dr. Fintan Larkin

[35]Dr. Fintan Larkin is a consultant psychiatrist. He has not examined the appellant but produced a report dated 29 December 2013 on the basis of an examination of records. In his view the appellant was not fit to plead or stand trial in December 2011. The medical assessments gave a clear picture of a man suffering from a dementing illness, exacerbated at times by other mental disorders and substance misuse, but progressing steadily in any event. While exaggeration, malingering and factitious disorders had to be considered when assessing offenders, it seemed implausible that so many clinicians would have been fooled so many times, that the scores varied exactly as one would expect and that their pattern never erred towards a malingering picture. His successful act would have been kept up for years without error, even in hospital, and even prior to the burglary itself. In his opinion there was very persuasive evidence that the appellant suffered, and suffers, from a genuine and significant dementing illness. His cognitive difficulties were of such severity that they would have affected his ability to enter a plea of guilty or not guilty and his ability to challenge jurors. He would not have been able properly to instruct counsel, nor to follow the evidence in court. Even with reasonable adjustments to the court process, he would simply not have been able to take in and retain the new information for long enough to consider it, compare it against the facts (many of which he would have forgotten) and properly instruct his legal team. Furthermore, his mental disorder would have been present at the time of the alleged offences.[36]In a second report dated 22 April 2015, Dr. Larkin commented on the reports of Dr. Fawzi and Dr. Mackenzie. However, at that date he had not been provided with Dr Hillier’s 2014 report, nor the appellant’s recent medical records. He noted that there was broad agreement on the facts across all reports. He found nothing in Dr Mackenzie’s report that caused him to change his opinions expressed in earlier reports. In essence there were two doctors who took the view that the appellant was not fit to plead in 2011, another doctor who found the same in 2014, and then Dr Mackenzie’s report in 2015, in which he said he was unsure.

Joint Addendum by Dr. Fawzi and Dr. Larkin dated 11 June 2014

[37]In a Joint Addendum dated 11 June 2014 Dr. Fawzi and Dr. Larkin addressed the statement of Mr. Barlex and the notes of instructions from the appellant. In their opinion the appellant showed poor comprehension during the course of the proceedings, evidenced by the transcript of the hearing on 19 December 2011 and the entries in his inmate medical records referring to his confusion as to what had happened. The appellant had not denied his involvement at any stage. However, Dr Fawzi noted that he had overwhelming guilt feelings, which were apparent during the interview, and he has experienced derogatory auditory hallucinations in the past when unwell, possibly a feature of depression and / or low self esteem. In their view it was unlikely that he would have dictated the letter to change his solicitor, as his level of education and verbal fluency were poor. Dr Fawzi also noted his written language and handwriting were very poor in the written tasks, which were part of the cognitive assessments he conducted on him. He was however probably able to highlight his mental health issues not being appropriately presented to the court. His presentation was complex and his fitness to plead should have been assessed by an old age psychiatrist, preferably with forensic experience. An assessment had been requested by his treating consultant psychiatrist in prison at the time, but this did not take place. After reviewing the documents their view regarding the appellant’s fitness to plead on the day of his sentencing remained unchanged. He was, on the balance of probabilities, not fit to plead.

Oral evidence of Dr Larkin

[38]In Dr Larkin’s view the appellant did not have sufficient cognitive function to understand evidence and to make an informed choice as to plea. He would have understood the concept of burglary and that it was legally wrong but he would run into difficulty in understanding options and possible defences. His ability to understand would depend on the nature of the question. As it became more complicated he would expect that the appellant would not be able to answer in a normal way. He could not convey pertinent issues in a reasonable way. He was of sufficient intellect to understand the right to plead not guilty. However his choice would be influenced by his understanding of the options. He would have difficulty in understanding certain factors and in deciding whether there was a realistic prospect of success. He would think of short term consequences, seeking to identify the quickest solution. He would not understand that he need not follow advice.[39]In cross examination he accepted that the appellant was able to answer questions about the burglary and to give broadly consistent accounts. Dr. Larkin was asked whether, if the appellant was told that on his account he could plead not guilty, he would understand that. Dr. Larkin replied that the fact that he did not put it forward showed he had no real grasp. Yet he accepted that the appellant was able to explain that he had been taken advantage of and that he had never denied that he was involved in the burglary.

Dr Bradley Hillier

[40]Dr Bradley Hillier, a consultant psychiatrist, carried out an assessment of the appellant on 23rd October 2014 following the appellant’s arrest for a subsequent offence (going equipped) on 23 May 2014. In his report dated 28 October 2014 he agreed with Dr Fawzi that he suffered from a number of psychiatric morbidities, the most prominent of which was dementia. From a review of the records it appeared that dementia had been an established diagnosis since at least 2008 and was subject to fluctuation and possible deterioration. He had also attracted diagnoses of psychotic illness (probably paranoid schizophrenia) and depression. There were unlikely to be any improvements. He concluded that the appellant was not fit to plead or to participate effectively in a trial. It was not likely he would regain fitness to plead or stand trial. Furthermore, no modifications to the court process would make him fit to plead or stand trial.[41]In a later report dated 5 July 2015 Dr Hillier confirmed that he agreed with Dr Larkin and Dr Fawzi in relation to the appellant’s fitness to plead and stand trial in 2011. He had read Dr. Mackenzie’s report. It did not cause him to change his opinion.[42]In his oral evidence Dr Hillier said that he had come to the view that the appellant was probably not fit to plead. He did not have sufficient cognitive functioning to make informed choices as to how to plead. On the contemporaneous records there was evidence of cognitive impairment. Asked whether he could understand the evidence against him Dr. Hillier said it would depend on how complex the evidence was. He noted that the evidence in this case seemed straightforward. However, he considered that without support the appellant might struggle to do that. In his view he probably did not have sufficient cognitive functioning to challenge evidence without support. Dr Hillier had concerns about the appellant’s ability to answer questions without support or even with support. His thinking in relation to consequences and his processing of information were impaired. He would be able to understand that he had a right to plead not guilty but he would not be able to act on his own volition to enter a plea. He would not be able to give instructions without support and Dr Hillier would have concerns about his ability to do so even with support. In the most simplistic terms, he would understand the consequences of pleas of guilty and not guilty but would have difficulty in retaining the information and using it to inform his decisions. If the choice had been laid out simply for him he could have exercised that choice but on the records Dr. Hillier was not confident that that occurred. His view was that the appellant was probably unfit to plead at the relevant time.[43]In cross examination Dr Hillier accepted that when he examined the appellant in October 2014 he may have been exaggerating. He achieved different scores with different clinicians, but there had been a consistent baseline of cognitive impairment over the years. The clinical picture he formed in October 2014 was consistent with everything he read in relation to the previous 5 years. Although some clinicians (e.g. Dr Chukwuma) had questioned whether he was cognitively impaired, the majority of records showed that he was and those most involved in his care considered that he was. Dr Hillier accepted that the appellant appeared to be able to function in the community and to make day to day decisions. His ability to answer questions would depend on how complex they were. He accepted that the appellant had been able to give an account of the burglary to clinicians. Dr Hillier said that if he was told he could plead not guilty on the basis of his account he would understand that, but whether he could use that information to take a decision was more difficult. It was possible that he would not retain the information. He could answer simple questions. He could understand matters that were explained simply to him, but Dr Hillier was concerned as to his ability to retain information. He would encounter serious problems where he was required to engage in serious issues without his memory impeding that in some way.

Dr Scott Mackenzie

[44]At the request of the Crown, the appellant was examined on 26 March 2015 by Dr. Scott Mackenzie, a consultant psychiatrist, who produced two reports dated 30 March 2015 and 17 November 2015.[45]In his report dated 30 March 2015, Dr Mackenzie stated that his assessment was limited because he did not have access to the appellant’s NHS medical records and only had access to the reports prepared at the request of his solicitors. He considered that the appellant had some degree of residual cognitive deficit with a paranoid psychotic illness, a depressive illness and history of substance misuse. He did not appear to be suffering currently from acute depressive or psychotic symptoms. However, he noted that the appellant might well be exaggerating or fabricating his symptoms. His functional presentation appears at odds with his reported level of disability and bedside clinical tests suggested some degree of malingering or exaggeration of the severity of his memory difficulties. The only way to be certain of the true level of disability or cognitive impairment was by multidisciplinary in-patient hospital assessment with detailed psychological testing addressing his cognitive function and possible malingering or fabrication of disability. He would want to have access to full NHS medical records. In these circumstances he considered that it was difficult for him to comment with any certainty on the appellant’s fitness to plead in December 2011. He considered that in view of the appellant’s reported history of cognitive impairment and history of psychotic illness, the court should have formally addressed his fitness to plead if his history of disability was raised. However, he pointed out that cognitive impairment does not inherently lead to a finding of unfitness. If his cognitive function was only mildly impaired at the material time, it is possible that he would have been fit to enter a plea (and stand trial) if necessary modifications were made to support him in the process. Dr Mackenzie considered that he would be able to form a more definitive view of the level of disability at December 2011 if he had access to his full NHS records and his current diagnosis and if the true level of his disability were more fully ascertained. With regard to his having no reported memory of previous long prison sentences, this would be possible if he were suffering from advanced dementia. However, he did not appear to be. Dr Mackenzie considered that this may well be part of his exaggeration or fabrication of symptoms. A person with advanced dementia is unlikely to report spontaneously when arrested that he has dementia. This again may be part of his exaggeration or fabrication of symptoms. Given his history, it was possible that he had also experienced some cognitive decline secondary to his paranoid psychotic illness and substance misuse. People suffering from dementia can show some degree of fluctuation in their level of cognitive impairment. The appellant’s assessment was complicated further by his on-going paranoid psychotic illness and history of possible depression and substance misuse. When suffering from symptoms of these conditions his score on any cognitive tests was likely to be reduced.[46]By the time of his addendum report dated 17 November 2015, Dr Mackenzie had been provided with the appellant’s prison healthcare records dating from April 2010 to summer 2013. He had also been provided with a number of reports and letters dating from 2010 to 2011. However, he remained of the opinion that the appellant may well have been fabricating or exaggerating the degree of his cognitive impairment at the time of his trial in December 2011 and that he might be continuing to overstate this. The newly available community and prison records revealed that he was found to have some degree of cognitive impairment in 2010 and the summer of 2011. It was of note, however, that he did not have a detailed psychological assessment of his cognitive function and he appeared to be functioning to a level where he could successfully live independently at this time. The prison healthcare records from autumn 2011 and 2012 noted clear concerns raised by the psychiatric in-reach team that his functional presentation appeared at odds with his reported level of disability. Specialist assessments in prison in autumn 2011 would have been very helpful in attempting to clarify the true level of his disability (in the context of his possible active paranoid psychotic illness, depressive symptoms, history of substance misuse, underlying personality and ongoing criminal charges). It was more than possible that he was overstating the true level of his disability due to the criminal charge he was facing. As noted in his previous report, a detailed assessment of his current cognitive functioning would have been very helpful in attempting to ascertain his cognitive function at the material time. Neuropsychological assessment, a personality assessment and tests for fabrication or malingering by an experienced forensic psychologist were required. These assessments had been organised by the Crown Prosecution Service in summer 2015 but it was noted that the appellant did not attend them. An objective account of his current social circumstances and level of functioning would also be helpful in determining the level of his current cognitive function. Without a detailed objective account of his level of disability, it was difficult to say with any certainty whether he had been fit to plead. However, given the appellant’s history of known cognitive impairment and possible active psychotic symptoms in autumn 2011, he remained of the opinion the court should have formally asked that his fitness to plead be assessed by appropriate section 12 approved medical practitioners. However, cognitive impairment and active psychosis did not inherently lead to a finding of unfitness. If his cognitive function was only mildly impaired at the material time, it was possible that he would have been fit to enter a plea (and stand trial) if necessary modifications were made to support him in the process.[47]In his oral evidence Dr Mackenzie stated that when he interviewed the appellant on 26 March 2015 he found his presentation inconsistent. He was guarded during the interview but after it concluded he was much more relaxed and open, telling Dr Mackenzie much more about his background. Dr Mackenzie had tested for malingering. The fact that the appellant did not engage with him had raised Dr Mackenzie’s concern. Dr Mackenzie also noted inconsistencies in his accounts. He was able to give an account of the burglary to Dr. Mackenzie. In Dr Mackenzie’s view he would be able to give such an account to a lawyer unless he was actively psychotic. There were lower level indications of psychotic illness at that time. The appellant might well have been able at some level to understand advice. Dr Mackenzie considered that a neurological assessment would be crucial to understanding the extent of his cognitive impairment. Asked if M would be able to understand pleas of guilty and not guilty Dr. Hillier replied that he would be able to understand more simple concepts.[48]In cross examination Dr Mackenzie accepted that the appellant had a level of cognitive impairment. This was shown by the records. However raw scores on MMSE needed to be approached with caution because scores could be lowered by psychiatric illness. The question was the degree of cognitive impairment. Dr. Mackenzie had concerns about the appellant’s ability to understand advice at some levels. He noted that the prison records referred to him playing cards which showed a significant degree of cognitive capacity. He was also able to do a job in the prison garden which showed a level of functional ability. D. Mackenzie remained of the view that he may have been exaggerating the extent of his impairment. In his view he may have been fit to plead even if he had some cognitive impairment. MMSE was not the best assessment of cognitive impairment because other factors might lower his score. On balance Dr. Mackenzie felt that he was fit to plead notwithstanding that he had a mild cognitive impairment at the time. However without detailed assessment it was difficult to say.

Evidence

[49]We admit the evidence of Mr. Barlex and the expert evidence of the consultant psychiatrists under section 23, Criminal Appeal Act 1968. Discussion[50]We consider that when applying the Pritchard test, as developed in later authorities, in order to determine whether a defendant is or was fit to plead and to stand trial, it is necessary to have regard to the particular circumstances of each case. It is necessary to take a realistic view of the nature of the proceedings and their likely course and the nature and complexity of the issues which are likely to arise. Nevertheless, we proceed on the basis that the test does not distinguish between fitness to plead guilty and fitness to stand trial. In the present case, it is clear that the issues arising in relation to the offence charged were whether the appellant had participated in the burglary and, if so, whether he did so under duress. As Dr. Mackenzie observed in his oral evidence, these are relatively straightforward issues. There is no doubt that the appellant suffered at all material times from a significant cognitive impairment. This was the unanimous view of the experts who gave evidence at the hearing of this appeal. They considered that the available medical reports record that he had persistently presented with symptoms of cognitive impairment since at least 2009. They also considered that, in addition, he had a history of mental disorder, specifically paranoid psychotic illness / schizophrenia, a depressive illness and harmful substance misuse. In their view, his cognitive decline may have been adversely affected by his history of paranoid psychotic illness and harmful substance misuse. The central questions for this court are the degree of his cognitive impairment and its relevance to his fitness to plead and to stand trial.[51]It was also the unanimous view of the expert clinicians who gave oral evidence in this case that the appellant’s fitness to plead ought to have been assessed prior to his guilty plea on 19 December 2011. The fact that it was not requires this court to undertake, as best it can, an assessment as to the fitness of the appellant to plead some four years ago on the basis of contemporary evidence and the retrospective opinion of expert clinicians.[52]Miss Campbell on behalf of Marcantonio submits that, had the appellant been assessed for his fitness to plead prior to his arraignment, the court would inevitably have concluded that he was unfit to plead. In this regard she points, in particular, to the fact that on a mini mental state examination (MMSE) some eight weeks before his arraignment he scored only 14/30 and that some five months previously his score was as low as 7/30 or 10/30, results indicating significant impairment. Contemporaneous records showed that he had not, for at least two years, been able to identify the day, the week, the month or the year. Although detained in prison he was on occasion disoriented in place and circumstance. The records also include entries by mental health nurses that following his return from court on 19 December 2011 (the sentencing hearing), on 27 March 2012 (Proceeds of Crime Act hearing) and 25 May 2015 (appeal hearing) he had stated that he did not know what had happened in court.[53]We note, however, that the appellant was able to give accounts of the burglary to his lawyers and to the clinicians who have examined him. These accounts are generally consistent and the appellant has never denied his involvement in the burglary. Although Mr. Tipper, who attended on him in the magistrates’ court on 11 October 2011, was unable to take instructions from him, on 19 December 2011 at Chelmsford Crown Court, the appellant was able to give Mr. Barlex an account of the burglary. Mr. Barlex’s attendance note is extremely brief but it does indicate that the appellant had also told him that others had taken advantage of him. The appellant gave a detailed account of his involvement in the burglary to Mr. Jewell who attended on him in HMP Chelmsford on 16 May 2012 prior to the first appeal. In that account the appellant stated that he must have had an argument with one of the other two burglars resulting in him being hit. He also provides an explanation as to how his blood came to be in the burgled property. The attendance note of this meeting also refers to the appellant going immediately after the burglary to see his support worker, Mr. Steve Bryant of St. Giles’s Trust, to discuss what had happened. In his evidence Mr. Barlex confirms that the account he was given on 19 December 2011 was the same as that given to Mr. Jewell save that in the account given to Mr. Barlex the appellant had accepted that he had helped to remove property from the burgled property and said that the same men had stolen his dog. We note that duress was advanced as mitigation in the first appeal. The appellant’s interruption of the judge at the sentencing hearing was also consistent with his other accounts. Once again he was accepting his participation in the burglary. It also shows that he was aware that he had pleaded guilty to burglary and was being sentenced for that.[54]In Erskine this court emphasised that where a defendant is legally represented his legal representatives will generally be the persons best placed to decide whether to raise the issue of fitness to plead and to seek medical assistance to resolve the problem. Mr. Barlex has been in practice as a solicitor practising in criminal law since 1995. When he met the appellant at Chelmsford Crown Court on 19 December 2011 he was aware that Mr. Tipper had not been able to take instructions and he had the attendance note which referred to dementia. Furthermore, Mr. Barlex recorded in his attendance note that on 19 December the appellant had raised mental health issues such as dementia with him. Accordingly he would have been alerted to the need to consider the appellant’s mental condition. Nevertheless, Mr. Barlex’s evidence was that he was entirely happy that the appellant fully understood both the nature of the allegation and his part in the offence. He had no concern at his ability to follow proceedings. The appellant was able to provide him with unambiguous instructions. Mr. Barlex explained that although he requested a pre-sentence report and would, no doubt, have sought medical evidence, he did so for the purpose of sentence and not from any concern as to the appellant’s fitness to plead. However, Mr. Barlex spent only a short time with the appellant; he estimated it at ten to twelve minutes, possibly a quarter of an hour. As explained later in this judgment, we have concerns as to the brevity of this meeting and as to the thoroughness of the consideration given by Mr. Barlex to the case. In these circumstances we are able to attach only limited weight to the contemporary assessment of Mr. Barlex.[55]We consider that the MMSE evidence can give only a limited picture of the degree of cognitive impairment. Dr. Fawzi accepted that the test has an educational bias, i.e. that those who have had a poor education will do worse, but he said that he tried to make allowance for this. We note that Dr. Shetti, who obtained the lowest score on an MMSE, nevertheless considered that the appellant was able to function in the community with some support. We accept the submission that there is a contradiction between the scores in the MMSE evidence and the fact that the appellant was able to function in the community with some support.[56]We accept that the appellant was and remains significantly cognitively impaired and accept the views of the expert psychiatrists that it would not have been possible for the appellant to deceive them all in relation to this matter over such a long period. Nevertheless, all of the clinicians who gave evidence on the hearing of this appeal accepted that there may have been an element of exaggeration of his symptoms at times. We consider that there have definitely been occasions on which the appellant has sought to exaggerate.(1) On 1 November 2011 Dr. Chikwuma, a consultant psychiatrist described an assessment attended by the appellant. He stated that this was a difficult assessment because the appellant was largely unco-operative and largely inconsistent in his responses. In his view, sometimes his behaviour and responses appeared orchestrated.(2) His prison medical records stated that on 12 February 2012 he was observed playing cards with other prisoners. In Dr. Mackenzie’s opinion this showed a significant degree of cognitive capacity.(3) The detailed account he gave to Mr. Jewell on 16 May 2012 is inconsistent with someone who is totally disoriented in place, circumstance and time.(4) His prison medical records for 26 May 2012 recorded his saying that he did not know what happened at the appeal hearing. This conflicts with the evidence of Mr. Barlex that he saw the appellant immediately before and after that hearing and that after the hearing he was no longer so friendly; he was disappointed and no longer so communicative.(5) Dr. Mackenzie reported that at interview on 26 March 2015 the appellant was a notably poor historian answering “I don’t know” to almost all questions. However, at the end of the interview, when Dr. Mackenzie had put his papers away, the appellant was much less guarded and started to tell him more about his current interests and past life when asked.[57]In their oral evidence the psychiatrist experts were questioned on the appellant’s capacity and understanding in relation to entering a plea of guilty.(1) Dr Fawzi accepted that the appellant was capable of describing the burglary and his role in it. He was capable of describing a burglary of which he was guilty, of understanding that that was illegal and that he had admitted that in court. However, he would not understand what a guilty plea would entail. Furthermore, he doubted whether the appellant would be able to understand potential defences available to him.(2) Dr Larkin’s evidence was that he was not of sufficient cognitive function to understand evidence and make an informed choice as to plea. He would have understood the concept of burglary and that it was legally wrong but he would run into difficulties understanding options and possible defences. However, he accepted that he was able to answer questions about the burglary and give broadly consistent accounts. He accepted that he was able to explain that he had been taken advantage of. He could understand the immediate consequences of pleading guilty if simply explained but would not understand the long term implications.(3) Dr Hillier accepted he could give an account of the burglary. He could answer simple questions and understand matters that were explained simply to him. If told he could plead not guilty on the basis of his account he would understand that but whether he could use that advice to take a decision was more difficult. Dr. Hillier was concerned at his ability to retain information. He would encounter serious problems if he were required to engage in serious issues.(4) Dr Mackenzie accepted he could give an account of the burglary. He was able to understand simple concepts but Dr. Mackenzie had concerns about his ability to understand advice at some levels. On balance he felt that he was fit to plead if his cognitive impairment at the time was mild.[58]We are satisfied on the evidence before us, not least the appellant’s interruption of the judge at the sentencing hearing, that he understood that he was admitting his involvement in the burglary, that it was illegal and that the effect of his plea was that he would be sent to prison. There is nothing to suggest that an inability to retain information or advice had any impact here, as his plea accorded with his consistent account. Furthermore, there is nothing to indicate that in his conference with Mr. Barlex any consideration was given to a possible defence of duress. In these circumstances, no question arises as to the appellant’s ability to understand such advice. We shall return to this issue in the context of a further ground of appeal which the appellant now seeks leave to advance. Furthermore, having regard to the wider aspects of the Pritchard test, we conclude on the balance of probabilities on the basis of the evidence before us that he would have been capable of exercising a right to challenge jurors for cause, instructing his legal advisers, following the course of the proceedings and giving evidence in his own defence. In this regard we attach particular weight to his undoubted ability to give full and consistent accounts of the burglary and his part in it.[59]At least two psychiatric consultants who examined the appellant advised that he should have an MRI scan. None was carried out. Furthermore, Dr. Mackenzie called for a neurological assessment. Arrangements were made for the appellant to attend for a neurological assessment by Dr. Harrison at the offices of solicitors acting for him on this appeal. However, he failed to attend on two occasions. We are satisfied that, at least on the first occasion, this was the fault of the appellant who had been at the solicitors’ office earlier that day and had been reminded of the appointment. Dr. Mackenzie emphasised in his evidence how informative such an assessment would have been and the difficulties of expressing firm opinions on the extent of cognitive impairment without one. In this regard, we bear in mind that the burden lies on the appellant to establish on the balance of probabilities that he was unfit to plead.[60]For the reasons set out above, the appellant has failed to persuade us on the balance of probabilities that he was unfit to plead on 19 December 2011.

Further ground of appeal

[61]At the hearing of the appeal, Miss Campbell sought leave to advance a further ground of appeal. She submits that if the court is not satisfied that the appellant was unfit to plead, clear inadequacies in his legal representation denied him the opportunity to advance, or even to consider advancing, a defence to the indictment, with the result that the plea, as entered, was unsafe.[62]Here she refers to the well documented vulnerability of the appellant living in the community, his presentation on the day of the burglary to Mr. Bryant at the St. Giles’s Trust as upset and injured, and the account given by the appellant to his solicitors and to Dr. Fawzi that he had been taken into the countryside under false pretences and then punched in the face during the burglary. In this regard she also points to the appellant’s statement to the judge that he did not want to do this burglary. She submits that there was no discussion with Mr. Barlex on defences which might be available to him. There was, she submits, a lack of adequate legal representation up to and including the day on which the plea was entered.[63]In his evidence, Mr. Barlex does not suggest that prior to arraignment any consideration was given to a possible defence of duress. On the contrary, while he refers in his attendance note to the appellant’s claim that he had been taken advantage of, it appears that this matter was relied upon both in the Crown Court and on the first appeal as going to mitigation only. Furthermore, effective consideration of a possible defence of duress would have required Mr. Barlex to obtain the relevant facts by questioning the appellant, to apply the relevant legal principles and to advise the appellant accordingly. We do not consider that this could be done effectively in a pre-court conference lasting only ten to twelve minutes, possibly a quarter of an hour, in which other matters had to be discussed.[64]Nevertheless, we are confident that, had the appellant been properly advised on the availability of a defence of duress in his case, he would have been advised that such a defence would be most unlikely to succeed. Such a defence would encounter a number of factual difficulties including the following: his association with the other two burglars, the large sum of money (approximately £2,000 in cash) found in the pocket of his trousers at his home, and why two competent burglars should employ duress to enlist such a vulnerable man to assist them in their criminal enterprise. Moreover, on the appellant’s account there was no prior threat; on his account he was already in the house that was being burgled when he was hit in the face. Furthermore, any such plea of duress would almost certainly have resulted in the appellant’s many previous convictions for burglary being admitted as evidence of bad character. In these circumstances, we are confident that even if the appellant had been competently advised in relation to a possible defence of duress, it would have led to the same result.[65]Accordingly, we refuse leave to appeal on this further ground.

Conclusion

[66]For these reasons, this appeal will be dismissed.

Regina v Dick Lucien Chitolie

[67]The applicant, Dick Lucien Chitolie, was charged with acting in breach of a restraining order contrary to section 5(5), Protection from Harassment Act 1997. The particulars were that on 21 October 2013, without reasonable excuse, he entered Ronalds Road, London N5, which he was prohibited from doing by a restraining order imposed by Highbury Corner Magistrates’ Court on 28 March 2012, following the applicant’s summary conviction on a charge of having, on 15 December 2011 at 56, Ronalds Road, caused criminal damage to the property belonging to Ms Guy.[68]The trial took place on 4 and 5 August 2014, at the Crown Court at Inner London (HHJ Bishop). The applicant was unrepresented, his legal representatives having withdrawn following the preliminary hearing. The applicant refused to take part in the trial and left the dock, returning to the cells. A plea of not guilty was entered on his behalf and the trial proceeded in his absence. On 5 August 2014 the applicant was convicted in his absence of acting in breach of a restraining order. The judge adjourned sentence and directed that psychiatric reports be obtained.[69]On 19 November 2014 an interim hospital order was made pursuant to section 38, Mental Health Act 1983.[70]The sentencing hearing took place on 3 March 2015. The applicant refused to be produced for this hearing. Before proceeding to sentence, the judge set out the history of the proceedings and noted that the issue of the applicant’s fitness to plead had not been raised pre-trial by any of his legal representatives. There were before the court psychiatric reports by Dr Judge, Dr Durkin and Dr Rogers. The court heard evidence from the applicant’s treating clinician, Dr Rogers, that he was suffering from a delusional disorder or schizophrenia of a nature and degree which made it appropriate for him to be detained in hospital for treatment, and that a section 41 restriction order was necessary for the protection of the public from serious harm. The applicant continued to hold widespread delusional beliefs, including concerning the house at 56 Ronalds Road. The applicant was sentenced to a hospital order under section 37 with restrictions under section 41, Mental Health Act 1983, without limitation of time. The judge noted that the issue of the applicant’s fitness to plead was raised post-conviction in the psychiatric reports, all of which concluded that he was unfit to plead.[71]The applicant now seeks leave to appeal against conviction and sentence on grounds which do not include the issue of his fitness to plead and stand trial. The single judge has referred this application to the full court and has proposed that the full court also consider the issue of fitness to plead and stand trial.

The trial

[72]When the case came on for trial at the Inner London Crown Court before HHJ Bishop on 4 August 2014, the applicant was in custody and was produced. The judge asked him if he wanted legal representation and he replied that he did not. The judge then asked that he be arraigned. At that point the applicant left the dock and went down to the cells where he remained. The judge entered a plea of not guilty. The applicant was then brought up again from the cells and the judge asked him if he wished to take part in the trial that was to take place, pointing out that the trial would proceed with or without him. However, he returned to the cells. The trial proceeded in his absence.[73]The prosecution case was that the applicant not only entered Ronalds Road, which he was prohibited from doing, but he also broke into Ms Guy’s house at 56 Ronalds Road, thereby committing a similar offence to that which had resulted in the restraining order being imposed. He had been discovered by PC Morton in the property in possession of a bag of tools and a file of documents.The applicant told the officer that he used to live in the property, that he was the lawful occupier and that it was currently occupied by squatters. He was arrested at the property and made no reply to caution.[74]The defence case was that the applicant had every right to enter the house at 56 Ronalds Road as it belonged to him and Ms Guy was a squatter. The applicant did not give evidence, having absented himself from the trial. However, the jury were told that he had been interviewed under caution with a solicitor present. His account in interview was that the house belonged to him and that the complainant had no right to be there. He asserted that the restraining order had been lifted. He admitted entering the house on 21 October 2013 through a window using a crowbar, but maintained that he had acted in the belief that he was entitled to be there as it was his house.[75]The issues for the jury were whether he entered Ronalds Road on the occasion alleged, if so whether he had a reasonable excuse, and whether he was prohibited from doing so by a restraining order imposed by Highbury Corner Magistrates Court on 28 March 2012. On 5 August he was convicted by the jury.

The sentencing hearing

[76]The applicant refused to be produced for the sentencing hearing on 3 March 2015.[77]The applicant was born on 9 February 1953 and had 8 previous convictions for offences of violence and dishonesty. Although the judge had ordered a pre-sentence report there was none as the applicant declined to be interviewed.

Dr Jenny Judge

[78]There was before the court a report by Dr Jenny Judge, consultant psychiatrist, dated 18 September 2014, which had been prepared at the request of the court. The applicant had refused to be interviewed and had left the interview as soon as Dr Judge explained her role. He did not consent to the production of the report. Dr Judge was of the opinion that he lacked the necessary capacity to give informed consent. She prepared the report believing it to be in his best interests. It was, in her opinion, clear from the material she had been able to examine that the applicant displayed delusional beliefs. In her opinion he had not been fit to plead or to stand trial. She considered that he was suffering from a mental disorder under the Mental Health Act, most likely delusional disorder (ICD-10 F22.0). She recommended referral to hospital for assessment and treatment.[79]Dr Judge was asked specifically by the court to consider whether the applicant posed a significant risk of serious harm to the public so as to justify a section 41 restriction order. She did not attempt to re-interview the applicant. In an addendum report dated 15 November 2014 she stated that she had been asked to address future risk. She considered that he was suffering from a mental disorder within the meaning of MHA, most likely delusional disorder but possibly schizophrenia (ICD F20). It warranted hospital treatment and she recommended a hospital order under section 37 MHA. It was difficult to give an opinion on the necessity of a restriction order to prevent further psychological harm to Ms Guy given that the applicant had yet to commence treatment. His ability to benefit from treatment and manage his recovery and risk without formal supervision in the future had yet to be tested. An interim hospital order under section 38 Mental Health Act would enable the court to have more information about his response to treatment.

Dr Catherine Durkin

[80]There was also before the court a report by Dr Catherine Durkin, consultant psychiatrist, dated 19 October 2014, which had also been prepared at the request of the court. The applicant had refused to be interviewed. He did not consent to the production of the report. Dr Durkin was of the opinion that he lacked the necessary capacity to give informed consent. She prepared the report believing it to be in his best interests. In her opinion, the applicant suffered from a mental disorder within the meaning of the Mental Health Act 1983. He displayed widespread, fixed persecutory beliefs of a delusional intensity. He also displayed an element of thought disorder (a lack of association between the topics he discusses) as well as delusional misidentification (believing that the people he has been dealing with are impersonators). These symptoms are suggestive of a psychotic illness, the most likely would be a delusional disorder (ICD-10 F22.0). His illness was of a nature and degree which makes it appropriate for him to be detained in hospital for treatment. Currently he had no insight into being unwell. He presented as being confused, thought disordered and deluded. He needed further assessment and treatment in hospital for his psychotic illness. This required an order under section 37 Mental Health Act 1983. However, in her view he did not require a restriction order. As to fitness to plead and stand trial Dr Durkin concluded:
“Mr. Chitolie is not currently fit to plead. He has widespread delusional beliefs about the criminal justice system and is thought disordered. He would be unable to give evidence on his own behalf, is unable to instruct a solicitor and is unable to understand the nature and effect of the charges.”
[81]Dr Durkin was asked specifically by the court to consider whether the applicant posed a significant risk of serious harm to the public so as to justify a section 41 restriction order. She did not attempt to re-interview the applicant. In an addendum report dated 15 November 2014 she considered that the applicant’s psychotic illness was of a nature and degree that made it appropriate for him to be detained in hospital for treatment. He was in need of assessment and treatment in hospital for his psychotic illness. It would be appropriate for him to receive an initial period of assessment in hospital prior to making further comments on his longer term disposal. She therefore recommended that he be transferred to hospital under section 38 Mental Health Act 1983.[82]It was on the basis of these recommendations that an interim order was made under section 38 Mental Health Act 1983 and on 15 December 2014 the applicant was admitted to the North London Forensic Service at Chase Farm Hospital.

Dr. Tim Rogers

[83]The report of Dr Tim Rogers, consultant psychiatrist and the clinician responsible for the applicant at Chase Farm Hospital, is dated 27 February 2015. It proceeds on the mistaken understanding that the applicant had been found under a disability in relation to his trial and that there had been a finding that he had done the act alleged. Dr Rogers considered that the applicant clearly suffered from a mental disorder within the meaning of the MHA which seemed severe and enduring. The distinction between schizophrenia and delusional disorder was academic in his case. Dr Rogers recommended treatment in conditions of low security forensic care under a section 37 hospital order. With regard to the question of a section 41 restriction order, Dr Rogers observed that the applicant refused to accept the diagnosis or to engage in treatment. Taking into account his antecedents and the nature of the index offence, on balance he considered that the risk of serious harm to the public from him was moderate in magnitude but that this risk clearly existed. It would be difficult to manage his violence risk in future without a restriction order. Accordingly he recommended a restriction order under section 41.

The appeal

[84]The applicant now applies for leave to appeal against conviction and sentence and for bail pending appeal. He also seeks an extension of time to apply for leave to appeal against conviction. The grounds of appeal, which have been prepared by the applicant himself, do not include any grounds relating to fitness to plead. His applications have been referred to the full court by the single judge, Wyn Williams J., who observed that the full court should also have the opportunity to consider whether the defendant was not fit to plead at the time of his trial and conviction.[85]The grounds of appeal of the applicant’s own composition may be summarised as follows:(1) The applicant maintains his defence: the house belongs to him and he was entitled to enter it; the complainant is a squatter.(2) The applicant refers to an amended version of the restraining order, of unknown provenance, where the words “must not” are omitted. He submits that by going to the house in Ronalds Road he in fact complied with the terms of the order.(3) He makes various complaints about the fairness of the trial proceedings and about the way in which his application has been processed by the Registrar.(4) He maintains that he has never received a copy of an order from the Crown Court stating that he was convicted.(5) Regarding his sentence, he submits that a hospital order with restrictions and without limit of time is manifestly excessive in view of the nature of the offence and the maximum penalty available for it. He makes complaints about Dr Tim Rogers, the clinician responsible for his psychiatric treatment. He makes complaints about the drugs that he is prescribed.(6) He does not accept that there is an issue concerning his fitness to plead and does not accept the experts’ diagnosis.[86]The Registrar of Criminal Appeals was unable to convince the applicant that it would be in his best interests to be represented by counsel for the purpose of these proceedings. The applicant was adamant that he wishes to argue his own grounds, wanted the opportunity to address the court himself, and did not wish to advance a ground concerning his fitness to plead. He complained when the Registrar proposed assigning counsel on his behalf and maintained that he wished to exercise his right to represent himself. In this regard there has been extensive correspondence between the applicant and the court.[87]A letter from Dr Rogers to the Criminal Appeal Office, dated 25 March 2015, raises the question of how this court should deal with an applicant where it becomes apparent post-conviction that they may have been unfit to plead, in circumstances where the applicant refuses to be represented and refuses to accept the possibility that they are suffering from, or have suffered from, a mental illness.[88]Having regard to the expert evidence which is now before this court, we consider that we have to address the question whether this applicant was fit to plead and to stand trial. In these circumstances, we have granted the applicant’s application for leave to attend the hearing and to address the court. He has done so with restraint. However, in order to ensure that all aspects of this matter were fully considered by this court we have also asked the Solicitor General to nominate an amicus curiae. The Solicitor General nominated Mr. Louis Mably of counsel who has attended the hearing and who has put a number of questions to Dr Rogers. We are grateful to Mr. Mably for his assistance.[89]In a respondent’s notice, the Crown submit that the applicant’s grounds disclose no proper basis for challenging either the conviction or the order made. However, the Crown accepts that the psychiatric evidence before this court which was not available at the trial does provide a basis on which this court would be entitled to conclude that the applicant may have been unfit to plead. It submits that if this court concludes that there should have been such a finding, pursuant to section 6, Criminal Appeal Act 1968 it should determine whether to make a hospital order and a restriction order.

Dr Rogers

[90]On the hearing of this application, there was before the court a further report by Dr Rogers dated 14 December 2015. Dr Rogers considered that the applicant’s condition is an enduring, severe psychotic mental illness that has appeared relatively resistant to treatment with antipsychotic medication. He lacks any understanding of his mental disorder which is best described as a persistent delusional disorder. There are still a significant number and amount of positive symptoms of psychosis in him. Dr Rogers stated that the applicant still challenges Ms. Guy’s lawful ownership of 56 Ronalds Road and does not accept the authority under which he has been convicted or detained in hospital. There is a high likelihood of future attempts to contact or challenge the victim without the continuation of his treatment, supervision and risk management in hospital. Furthermore, the applicant makes it plain that, without compulsion, he would not continue with any aspect of treatment or monitoring for his psychotic mental illness. This would be likely to result in a worsening of his condition, of the risk of harm to hi m through misadventure and a heightening of the risk of recidivism also. This would be likely to be dangerous to Ms. Guy in particular, including to her psychological wellbeing.[91]In Dr Rogers’s opinion the risks the applicant presents could not be managed effectively in the community. He suffers from a mental disorder of both a nature and degree to require his treatment under the Mental Health Act 1983 in the interests of both his own health and the safety of others. Dr Rogers recommends a hospital order under section 37. With regard to a restriction under section 41, Dr Rogers states that while the applicant has long since desisted from making any overt threats to or about Ms. Guy, his underlying grievance and key beliefs about the ownership of the house remain the same. Despite the passage of time and much professional input, it is Dr Rogers’s view that the magnitude and nature of the risk of serious harm to the public posed by the applicant remain substantially unchanged.[92]Dr Rogers gave evidence before us on the hearing of the appeal on 17 December 2015. He confirmed that the applicant suffers from a persistent delusional disorder. It is a severe enduring psychotic illness. It has a severe effect on his ability to distinguish fact from non-reality, on his ability to consider facts in the world as it really is. He has fixed delusional beliefs which are firmly held. He was unfit to plead throughout the proceedings in the Crown Court. His symptoms are likely to have been present for a very long time including throughout the proceedings. He still has these symptoms.[93]Dr. Rogers’s opinion is that this is not a disorder where comprehension is affected. It is possible to have a lucid conversation with the applicant. Its main impact is that, when he is required to make decisions, his ability to distinguish between reality and non-reality impedes him. This would be a real disability in giving instructions. One of his delusional beliefs is that there is a conspiracy against him by the judiciary and the police. He has dismissed lawyers and is unwilling to be represented. His delusions prevent him from having a relationship with a lawyer and giving instructions. Also he has no awareness of this problem. This has an affect on his ability to understand proceedings and to give evidence in his own defence. So far as challenging jurors is concerned, he could form a persecutory idea in relation to a juror. So far as giving evidence is concerned he would not be able to accept the authority of the court given his delusional beliefs about the fairness and identity of judges.[94]It is Dr. Rogers’s current view that the applicant still requires treatment under the Mental Health Act. Clinicians have spent many months attempting to treat him. At first his physical health impeded this but he is now on the appropriate treatment. However his condition is very resistant to treatment. Although there have been not recent episodes of aggression on the ward, his symptoms have not changed a great deal. He still does not accept that Ms. Guy owns the property. He still believes that he owns it. Here the risk is not just of physical harm but of psychological harm to the victim. It is difficult to say that the risk he poses to her has reduced significantly. In his view there was a risk of serious harm. Accordingly he considers that a restriction order under section 41 is required.

Discussion

[95]In R v. Padola [1960] 1 QB 325 the principles stated by the Court of Criminal Appeal in relation to fitness to plead included the following:

Discussion

“2. If the contention that the accused is insane is put forward by the defence and contested by the prosecution, there is, in our judgement, a burden upon the defence of satisfying the jury of the accused’s insanity. In such a case, as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused’s insanity has been made out. 3. Conversely, if the prosecution alleges, and the defence disputes, insanity, there is a burden upon the prosecution of establishing it.”
(at p. 350)[96]In the present case the applicant does not maintain that he was unfit to plead; on the contrary he asserts that he was fit to plead. Equally, in the present case the prosecution does not allege that he was unfit to plead; it simply does not contest that conclusion. Here, we note that section 4, Criminal Procedure and Insanity Act 1964 applies where the question arises at the instance of the defence or otherwise. Similarly, Criminal Procedure Rule 25.10(1) refers to the court acting on its own initiative. In these circumstances, we have proceeded as if the prosecution had alleged that the applicant was unfit to plead and as if that were contested by him. Accordingly, the court has to be satisfied to the criminal standard that the applicant is unfit to plead.[97]We admit the evidence of Dr. Judge, Dr. Durkin and Dr. Rogers under section 23, Criminal Appeal Act 1968.[98]We accept, on the basis of the evidence of Dr. Judge, Dr. Durkin and Dr. Rogers, that the applicant suffered at the time of his trial and continues to suffer from a severe, enduring mental illness which is best described as persistent delusional disorder. This illness affects his ability to distinguish reality from non-reality and results in firmly held delusional beliefs. In his oral evidence Dr. Rogers focused on how this might affect his ability to participate in a trial. Dr. Rogers considers that its main impact would be that when required to make decisions his inability to distinguish reality from non-reality would impede him. This would disadvantage him in giving instructions. Furthermore, he has a delusional belief that he is the victim of a persecutory conspiracy by judges, lawyers and the police which has resulted in his dismissing lawyers and refusing representation. His delusional beliefs would affect his ability to understand the proceedings and to give evidence. Accordingly, we are satisfied to the criminal standard that at the time of his trial the applicant was unfit to plead.[99]At the time of the trial there was before the Crown Court none of the material which has led us to this conclusion. Moreover, his refusal of legal representation and his refusal to take any part in the proceedings may explain why the judge was not alerted to his condition and why he failed to raise the matter of his own motion. The defendant had no legal advisers who might have been alerted to his mental condition. The court received evidence of the applicant’s mental state only after his conviction. By that stage of the proceedings the judge had no alternative but to proceed as he did.[100]So far as the grounds of appeal drafted by the applicant are concerned, we are satisfied that these grounds are totally lacking in merit and have no prospect of success. In particular, we are satisfied that no variation to the order, as contended by the applicant, was made by the magistrates’ court or the Crown Court. In addition, these include muddled and bizarre grounds which provide further evidence of the applicant’s mental illness. There is no merit in any of the grounds. None would have any prospect of success and none of the matters raised could have prevented the Crown Court from arriving at a finding that the applicant did the acts charged against him. Accordingly we refuse leave to appeal on these further grounds.[101]We are satisfied on the written evidence of Dr. Judge and Dr. Durkin and on the written and oral evidence of Dr. Rogers that the case is not one where there should have been an acquittal but that there should have been findings that the accused was under a disability and that he did the acts charged against him.[102]In these circumstances we are required to make an order under section 6(2) Criminal Appeal Act 1968. We are satisfied on the evidence of the three clinicians referred to above that the applicant is suffering from a mental disorder of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment, that appropriate medical treatment is available for him and that this is the most suitable method of disposing of this case. In this regard we note that the most recent written evidence of Dr Judge and of Dr Durkin is in each case dated 15 November 2014. However, in view of Dr Rogers’s evidence as to severity of the condition and its duration, that it is very resistant to treatment and that the applicant’s symptoms have not changed a great deal, we consider that it is open to us to rely on these earlier reports.[103]It was the evidence of Dr. Rogers that the applicant still retains his delusional beliefs that he is the owner of Ms. Guy’s house. Indeed, that was apparent from the submissions made by the applicant when he addressed the court in person. In these circumstances, Dr. Rogers was unable to say that the risk the applicant poses to Ms. Guy has reduced significantly. In this regard, he drew our attention in particular to the risk of psychological harm which the applicant in his present condition poses to Ms. Guy. In these circumstances, we are satisfied that it is necessary, in order to protect the public from serious harm, for the applicant to be subject to restriction order under section 41, Mental Health Act 1983.[104]Accordingly, we grant an extension of time and permission to appeal against conviction. We quash the conviction and substitute a finding that the applicant did the acts charged against him. We make a hospital order with a restriction order without limit of time pursuant to section 6(2) (a), Criminal Appeal Act 1968.

Cited in 9 later judgments