Mathew Jones v R [2021] EWCA Crim 1315

[2021] EWCA Crim 1315Case No 202100504B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM The Crown Court at Manchester
Judge Field Q.C.
T20197374
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/08/2021
Before
THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)(LORD JUSTICE FULFORD)MR JUSTICE JULIAN KNOWLESMR JUSTICE WALL
Between
MATHEW JONESAppellantREGINARespondent
ADAM KANE Q.C. AND DAVID JAMES (instructed by Steve Halsall, Cunninghams Solicitors) for APPELLANTROBERT HALL (instructed by Crown Prosecution Service) for RESPONDENTHearing Hearing dates: 29 July 2021
Approved Judgment
[1]On 27 January 2021, in the Crown Court at Manchester (Judge Field Q.C. and a jury), the appellant (then aged 42) was convicted of the murder of William Phelan.[2]On 1 February 2021 the appellant was sentenced to life imprisonment, the period of 20 years being specified as the minimum term (see section 322(2) of the Sentencing Act 2020) less 556 days spent on remand.[3]Before this court, he appeals against conviction with the leave of the single judge. He renews his application for leave to appeal sentence.

The Facts

[4]The deceased was born on 4 July 1978. He had had a difficult life and in his late teens he was diagnosed with paranoid schizophrenia. He spent long periods in mental health hospitals, and he was vulnerable when living in the community (he was susceptible, for instance, to the temptations posed by alcohol and illicit drugs).[5]The appellant was born on 10 December 1978 and shared some of the background difficulties of the deceased. The appellant was diagnosed with paranoid schizophrenia in 2003 and has spent long periods in hospital. The dominant symptom of his paranoid schizophrenia is delusions. As with the deceased, he has a history of using alcohol and illicit drugs.[6]There is support for the suggestion that the deceased and the appellant first met around 2010. Whatever the precise date, in 2017 they were both patients on Acacia Ward at Park House, a mental health wing at North Manchester Hospital. Acacia Ward is a rehabilitation ward where patients with chronic mental health problems learn what are referred to as “life skills”, in advance of discharge into the community. They shared a dormitory for a few months.[7]The deceased was discharged on 29 September 2017, having been allocated a community care coordinator who helped him set up home at 47 Kilnside Drive. The appellant was discharged from Acacia Ward about a month later, on 30 October 2017.He was subject to a community treatment order and was allocated his own premises.[8]Once in the community, the deceased and the appellant formed a close association and were often seen together at 47 Kilnside Drive, where they consumed alcohol and illicit drugs. They were both polysubstance abusers and were non-compliant with their prescribed “depot” medication (slow-release, intra-venous, anti-psychotic medication).[9]There were concerns about the appellant’s progress with his treatment following his discharge from hospital. He missed meetings with his care coordinator, and from November 2017 he ceased taking his medication. When contact occurred on 12 January 2018, the social worker noted his “new grandiose delusions”, exemplified by a belief that he was a beneficiary of Michael Jackson’s will. On 30 January 2018 the appellant’s sister contacted the mental health services to express her concerns. On 28 February 2018 the appellant was seen by Dr Arulefela who described him as mentally unwell and delusional. She concluded that the appellant’s condition was worsening. He was assessed as being vulnerable. The nurse described him as floridly psychotic. Dr Arulefela completed a notice of recallto hospitaland the Community Treatment Order under which he had been released from Acacia Ward detention was revoked. On 21 March 2018 the appellant attended a mental health services office seeking help with his benefits. He was thereon re-admitted to hospital as an involuntary patient under the Mental Health Act 1983.[10]Throughout February 2018, the deceased’s care coordinator and housing manager had made repeated but unsuccessful attempts to contact him. Eventually on 19 March 2018, the police gained access to 47 Kilnside Drive, where they found the deceased’s dead body. He had been killed sometime at the end of January or beginning of February 2018.[11]He had been stabbed eight times: once in the shoulder and seven times to the right and central chest area. Of the group of seven stab wounds, four penetrated the chest cavity, passing through the right lung, with at least one wound also travelling through the heart and into the left lung. These were severe injuries that led swiftly to death. There were incised wounds to the deceased hands, described by a pathologist as indicating a defensive response by the deceased. After death, an attempt had been made to decapitate the deceased, with the head having been almost completely severed from the body.[12]The wounds were all consistent with having been caused by the knife that was lying next to the body. Fragments from this damaged weapon were found in the deceased’s neck. The appellant’s DNA and fingerprints were on the knife.[13]Although the police rapidly linked the deceased’s death to the appellant, he was not interviewed at that stage because he had been assessed as being mentally unwell by Dr Ullah, the consultant psychiatrist at Edenfield hospital, following his re-admission. When three interviews did occur in March 2019 (a year after the death), he replied “no comment” to most of the significant questions, although he said he could not recall the relevant events.[14]At trial, the appellant accepted that he was responsible for the killing. His case was that he had been acting in self-defence when he stabbed the deceased. He raised, additionally, the partial defences of loss of control and diminished responsibility, as to all of which the jury were provided with appropriate directions.[15]The appellant did not give evidence at trial and instead relied on the accounts he had provided to two psychiatrists during the preparation of their reports. Dr John Crosby, a forensic consultant psychiatrist, compiled three reports (dated 24 December 2019, 7 February 2020 and 24 June 2020) and gave evidence for the prosecution. Dr Catrin Evans, a consultant psychiatrist, prepared three reports (dated 14 October 2019, 4 December 2019 and 30 July 2020) and gave evidence for the defence. In a joint statement they described their agreement that the appellant was fit to plead and stand trial. In a later joint statement (dated 30 July 2020) they provided details of the areas in relation to which they agreed and disagreed. We note in passing that the psychiatrists were divided on whether the defence of diminished responsibility was available to the appellant.[16]The appellant told Dr Crosby that he woke up on a Monday to find the deceased standing over him holding a knife. The night before they had been drinking and taking drugs. He put his hands up to defend himself whereon the deceased attacked him. The appellant lost his temper, believing the deceased was going to kill him. After he killed Mr Phelan, he left and locked the flat, and he broke the key in the lock.[17]He denied to Dr Crosby that he had put out the deceased’s eyes or chopped of his “goolies”. He said he had inflicted the wound to the deceased’s neck to make sure he was dead. He maintained he was not ill when he killed the deceased and he had not intended to kill him.[18]The appellant told Dr Evans that the incident occurred on a Monday in January 2018. He indicated he became aware of the deceased standing over him with a knife, which he managed to secure during a struggle. He referred to memories of gouging out the deceased’s eyes and pulling his hair. He suggested he had been acting in self-defence when he stabbed the deceased two or three times before cutting through his neck.[19]Dr Crosby considered that because Mr Jones had not been engaging with community psychiatric services around the time of the killing, there was insufficient evidence that he was acting on a delusion at the time of the killing. Dr Evans concluded that the events the appellant described were a delusion rather than reality.[20]Both psychiatrists agreed that the diagnosis of paranoid schizophrenia is correct, that the appellant’s delusions are entrenched and difficult to shift, and that he lacks almost any insight into his mental illness. His delusional beliefs, which he considers to be reality, are the most striking characteristic of his condition. He believes that he is Ian Brown, the lead singer of the Stone Roses; thathe is the son of Charles Bronson and Kate Bush; that he was abducted at birth; and that he is a beneficiary under Michael Jackson’s will. He believes the authorities, including the hospitals, are keeping his identity documents from him, to prevent him establishing the truth. He has in the past broken into Park House in order to try to obtain his birth certificate. He has grandiose delusions about inventions he has patented. These delusions have been a feature of his life for many years, and he has been described as unshakeable in them. The appellant incorporates new people into his delusional belief systems; in this sense they evolve, and it is of note that the deceased was included by the appellant in this way. Dr Evans’ second addendum report addressed this issue between paragraphs 5.46 and 5.57, commencing:
“It has been established that Matthew Jones had incorporated William Phelan into his delusional belief system, regarding him as a brother that he had known from earlier in his life, and someone who had stolen his identity and stolen a precious item of his, in addition to possibly killing a man called Ian Brown.”

Section 35 Criminal Justice and Public Order Act 1994

[21]Section 35 Criminal Justice and Public Order Act 1994 (“CJPOA”) provides: “Effect of accused's silence at trial.(1) At the trial of any person for an offence, subsections (2) and (3) below apply unless— (a) the accused's guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment with a jury, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question. […]” (a) the accused's guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

The Application

[22]On 22 January 2021 the defence sought a ruling from the judge as to whether section 35 CJPOA was engaged, with the consequence that the jury would be directed that it was open to them to draw an adverse inference from the appellant’s failure to give evidence. As set out above, the court had heard evidence from Dr Crosby and Dr Evans (who were heard consecutively during the prosecution case), from the treating community consultant psychiatrist, Dr Arulefela and from the appellant’s nurses (Dudill, Endley and Keane).[23]Counsel for the appellant submitted in the court below that an adverse inference direction should not be given following the appellant’s failure to give evidence. If the appellant gave evidence, he would necessarily testify on matters about which the experts agreed he had no insight, and particularly as to whether his beliefs were delusional and the extent of his illness and its impact. Mr Kane Q.C., on behalf of the appellant, stressed that the latter had rigidly maintained the veracity of his undoubted delusions and generally he had failed to recognise the fact or the symptoms of his illness. The psychiatric evidence, therefore, was that the appellant had no insight into the extent and impact of his illness or the delusional nature of his beliefs. Therefore, it was argued that permitting the jury to draw an adverse inference from his failure to give evidence would be unjust.[24]The respondent argued to the judge that the court should be slow to conclude that section 35 (1) (b) applies in a case such as the present, given it would not be “correct” to allow a defendant to advance a psychiatric defence and then refuse to give evidence.

The Ruling

[25]The judge ruledthat the jury were equipped with expert evidence about the appellant’s account of the killing, which included the views of the psychiatrist’s as to whether it was delusional. The judge suggested this would guide the jury on the issue of drawing an inference. The judge also indicated that reasonable accommodation would be made if the appellant was to give evidence, by way of breaks and that counsel would need to follow the relevant guidance for questioning mentally disordered witnesses. The central passage in his ruling was as follows:
“It is said however on the defendant ’s behalf to be undesirable for the defendant to give evidence because it would give rise to an injustice because there is no mechanism to deal with the defendant ’s delusions and lack of insight. The submission set out in the skeleton argument on behalf of the defence goes on to say this: “Permitting the jury to draw adverse inferences from his failure to give evidence is unjust because asking him to discriminate reality from delusion is unjust on the evidence. He cannot”
. In my view, however, there is a mechanism to allow this apparent difficulty to be dealt with and it is this. The jury is already equipped with the expert evidence about the defendant ’s account of the killing, that is the expert evidence that I have already summarised and the views of Doctor Crosby and Doctor Evans as to whether that account is delusional or not, and this account of the killing would surely make up the core of any evidence that the defendant would give. There is a difference of expert evidence that the jury will in any event have to resolve in order to consider – well, in order to determine their decision on the defence of diminished responsibility and the resolution of that difference of opinion would determine how they would go about assessing any evidence given by the defendant. It would also, in my judgment, guide the jury in their decision whether in fact they should draw inferences pursuant to section 35.

The Directions to the Jury

[26]The judge’s directions to the jury were as follows: The defendant's silence at trial: So the defendant chose not to give evidence during the trial. It was and remains his right to remain silent. His decision not to give evidence is not, however, without consequences, because(a) he has not given any evidence during the trial to contradict, dispute or undermine any of the prosecution case against him, and(b) you may be entitled to draw certain inferences or conclusions from his silence. You will recall that when the court was told that the defendant was not going to give evidence earlier today, I asked the defendant's counsel these questions. "Have you advised your client that the stage in the trial has now been reached at which he may, if he chooses, give evidence? Have you also advised him that, should he choose not to give evidence or having been sworn should he refuse to answer any question without good reason, the jury may draw such inferences as appear proper from his failure so to do?" The answer to each question was "Yes." It follows that you can be satisfied that the defendant is aware that, subject to the following directions, you may be entitled to conclude that he did not think that he had an answer to the prosecution case that would stand up to cross- examination in court. It is for you to decide whether the defendant's failure to give evidence should count against him in this way and to make this decision you should consider the following questions. First, "Are we sure that the prosecution case against him is so strong that it calls for an explanation?" If the answer is yes, you should proceed to the next question, but if the answer is no you should not draw any adverse conclusion from the defendant's decision not to give evidence. The second question, "Are we sure that the true reason why the defendant did not give evidence is that he did not have a response to the prosecution case that would stand up to questioning in court?" If the answer is yes then you are entitled to regard his failure to give evidence as providing some support for the prosecution case. You must remember, however, that it remains the prosecution's task to make you sure of the defendant's guilt thus, while the defendant's failure to give evidence may support the prosecution's case, you must not convict him wholly or even mainly because he failed to give evidence. If the answer to the second question is no, you should not draw any conclusion from the defendant's decision not to give evidence that is adverse to him. Now there are two further matters to take into account under this heading: First, that when he was interviewed by Dr. Crosby and Dr. Evans for the purpose of preparing their reports, the defendant gave to each of them an account of what happened when he killed William Phelan. What the defendant said to thepsychiatrist’s forms part of the evidence in the case but, unlike the evidence of the other witnesses, it was not given on oath and has not been tested by cross-examination in court. Second, defence counsel submits that because of the defendant's medical condition it would be undesirable for the defendant to give evidence and that, in those circumstances, you should not hold the defendant's failure to give evidence against him. You will have to decide whether you accept Dr. Evans's opinion about this and in this respect, you will want to compare it with what Dr. Crosby said. Your decision about this may be relevant to your answer to the question and it is the second question:
"Are we sure that the true reason why the defendant did not give evidence is that he did not have a response to the prosecution case that would stand up to questioning in court?"
[27]Later in the summing up the judge returned to this theme, as follows: “The only other aspect of the evidence that I need to review with you is really an absence of evidence and that is of course the fact that the defendant did not give evidence in this case. I have already referred to this, but it is perhaps important that I should remind you of the directions at paragraph 57 and following. The position is this that because he has not given evidence there are two consequences. The first is the one I have already referred to that there is no evidence given by the defendant in the course of the trial to contradict, dispute or undermine any of the prosecution's case against him, but, secondly, you may be entitled to draw certain inferences or conclusions from his silence and because you are in a position to be satisfied that the defendant is aware that following the conversation I had with his counsel in court and asking two questions that he is aware that you may be entitled to conclude that he did not think that he had answers to the prosecution case that would stand up to cross-examination in court. Well, it is for you to decide whether his failure to give evidence should count against him and to make that decision you should consider the two questions that are set out in paragraph 60 of the directions. First, "Are you sure that the prosecution case against him is so strong that it calls of an explanation?" Well, if you are not sure about that then you do not draw any conclusions against the defendant for not giving evidence, but if you are sure about it you must ask the second question: "Are we sure that the real reason why the defendant did not give evidence is that he did not have a response to the prosecution case that would stand up to questioning in court?" If yes, you are entitled to have regard to his failure to give evidence as providing some support for the prosecution case. If no, you should not draw any conclusion from the defendant's decision not to give evidence that is adverse to him. If youdo regard this as supportive of the prosecution case, however, you should remember that it remains the prosecution's task to make you sure of his guilt so his failure to give evidence, whilst supporting the prosecution case, must not be a ground for you convicting him on its own. In other words, you must not convict him either wholly or mainly because he failed to give evidence. I should refer you then to paragraph 61, two further matters to take into account and I have already dealt with what the defendant told the psychiatrists and the shortcomings of that. It was not evidence given on oath. It has not beencross-examined, but it is something that you can take into account, because it is part of the evidence in the case and, secondly, you are entitled to take account of defence counsel's submission to you that it would have been undesirable for the defendant to give evidence, because of his mental condition and you will have to decide whether you accept Dr Evans's evidence about the account that he gave to her being delusional or not when considering that question. "Are you sure that the prosecution case against him is so strong that it calls of an explanation?" "Are we sure that the real reason why the defendant did not give evidence is that he did not have a response to the prosecution case that would stand up to questioning in court?"

The Appeal

[28]The submissions on this appeal broadly reflected the matters raised before the judge. Mr Kane argued, first, that it was undesirable for the section 35 direction to have been given, bearing in mind the appellant’s mental condition and, second, the direction was, in any event, inadequate. He relies significantly for both submissions on the agreed position that the appellant is unable to distinguish delusions from reality. He has no insight into his illness, as demonstrated by the fact that he told both doctors that he was not psychiatrically ill, when the reality is that he has experienced a twenty-year history of paranoid schizophrenia. Therefore, he has no understanding of the fact that his delusions are delusions, and when giving evidence he would not have been able to tell if he was giving evidence of a delusion or real events. Mr Kane adopted the observation by the court during argument that the danger of his giving evidence is exemplified by the conundrum as to how the appellant would be able to take an oath to tell the truth when he has no understanding of what is the truth. Accordingly, under the first argument, it is submitted his evidence would have been valueless and the judge should have concluded that his mental condition made it undesirable for him to give evidence. Additionally, Mr Kane observed that the jury would have been disabled from determining whether the appellant’s evidence related to his delusions or his perception of real events.[29]Turning to the second argument and the judge’s direction, Mr Kane submitted the judge should have included a passage to the effect that the Crown’s psychiatrist had explained, and the defence psychiatrist had agreed, that the defendant lacks insight in two ways: first, he is unable to appreciate that he is mentally ill and, second, he is unable to distinguish his delusional thoughts from reality. The jury should have been invited to decide, on the basis of these factors, whether there was, or may have been, a good cause for his failure to give evidence. Put otherwise, the jury should have been directed to consider whether a sufficient explanation been provided for his absence from the witness box by virtue of his inability to distinguish between reality and delusions. We note that the judge declined an invitation to expand his direction in the way outlined in the preceding passage.[30]For the respondent, Mr Hall criticized Mr Kane for adopting what he described as an overly narrow approach, which focused on the terms of the judge’s direction as set out above. Mr Hall suggested that a significant element of the evidence in the case had concerned the defendant’s psychiatric difficulties and that the judge had provided a comprehensive rehearsal of the evidence in this regard. Mr Hall stressed that Dr Crosby had testified that in his view the account by the appellant as to what had occurred during the fatal incident was not delusional; particularly, he had given an account which correlated to what was observed at the scene. He highlighted that the appellant’s delusions tended to relate particularly to identity rather than acts done within a particular identity. A background theme to Mr Hall’s submissions is that the judge was well placed to judge and to assess the various matters that were raised concerning section 35 and that he reached an unimpeachable decision. Mr Hall submitted, finally, that even if the judge had erred in giving a section 35 direction, the conviction was nonetheless safe.

Discussion

[31]Addressing those various submissions, we observe immediately that the present circumstances are notably different from those contemplated in R -v- Mulindwa [2017] EWCA Crim 416; [2017] 4 WLR 157 (an authority to which the judge was taken). In Mulindwa, the defendant suffered from a psychotic disorder (paranoid schizophrenia). A psychologist gave evidence on a voir dire relating to difficulties which might arise if the defendant were to give evidence. In the event, he chose not to give evidence and the jury were provided with a written document explaining the relevant difficulties. The judge gave a section 35 direction, which this court upheld.[32]Against that background, as relevant to the present appeal, this court addressed the extent to which a jury can be assisted by expert evidence in this context:
“34. […] As a matter of general principle, it was held by the House of Lords in Toohey v Metropolitan Police Comr [1965] AC 595 that medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to the general opinion of the unreliability of the witness but may include all the matters necessary to show not only the foundation of and reason for the diagnosis but also the extent to which the credibility of the witness is affected. There are, however, necessary limitations to the principle. For example, such evidence will not be permitted to amount to “oath helping”: see R vRobinson [1994] 3 All ER 346. But sometimes a jury may legitimately require expert assistance in understanding the presentation of a witness with a particular disability. For example, in R v VJS [2006] EWCA Crim 2389 the prosecution were permitted to call a paediatrician to explain the presentation of the evidence of a young complainant in a sexual case who was autistic. The court stressed that it remained for the jury to decide whether or not she was to be believed in the light of all the evidence. 35. In R v Tabbakh [2009] EWCA Crim 464 we note that although the defendant chose not to give evidence, and the judge gave a section 35 direction, the jury heard evidence from psychiatrists that the defendant might not do himself justice in the witness box because he might not be able to retain control of himself and might not remember sufficiently parts of his evidence. 36. We are satisfied that there is a clear dividing line between evidence from a psychiatrist or a psychologist which may legitimately provide the jury with necessary assistance in understanding the presentation of a defendant in the witness box, and impermissible evidence from such witnesses which amounts to no more than an expert's opinion on the credibility or truthfulness of the evidence of the witness, an issue which must remain a matter exclusively for the jury. The former is permissible because it is designed to enhance the ability of the jury to perform its fact finding role. The latter is impermissible because it has the effect of suborning the jury's fact finding role and substituting for it the decision of the expert.”
[33]Accordingly, the jury can receive considerable expert assistance when deciding whether to draw an adverse inference under section 35, so long as the experts do not provide an opinion on the credibility or truthfulness of the defendant.[34]It is clear from the summary just set out of R v Tabbakh that in assessing whether it would be undesirable for the defendant to give evidence, the court is addressing a wide issue. All the relevant circumstances should be considered together when the judge decides the broad question posed by section 35(1)(b). Moreover, in giving the judgment in that case Hughes LJ VP at [11] observed:
“[…] It is plainly not sufficient that the defendant suffers from some […] physical or mental condition; it must be a mental condition which is such to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a Crown Court trial by the jury. The purpose of section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence. […]”
[35]It is to be stressed that the authorities have tended to indicate that it will be unusual for the physical or mental condition of the accused to make it inappropriate to draw adverse inferences. In R v Billy-Joe Friend [1997] 1 WLR 1433; [1997] 2 Cr App R 231, the court observed “(i)n reaching our conclusion we take as our starting point that it will only be in very rare cases that a judge will have to consider whether it is undesirable for an accused to give evidence on account of his mental condition”. In that case the defendant was tried for murder. He was aged 15 but he had a mental age of nine or ten and an IQ of 63. He had limited powers of comprehension and it was accepted he might find it difficult to do himself justice in the witness box. However, he was not suggestible and had given a clear account of his defence at various stages prior to trial. A psychologist testified that he could give a clear account of himself in interview if allowed time to express himself and if care was taken as regards his level of understanding; it was highlighted that his performance in the witness box might be different matter. In a ruling which this court upheld, the trial judge indicated:
“I believe on balance that his mental condition is not such as to make it undesirable to give evidence and I base myself on the explanation he was able to give in particular to the police and to Dr Gudjonsson (the psychologist) and also on the powers of the court which we exercise frequently now in favour of defendants and their witnesses to see that they are not put under any undue pressure if they have any handicap of any kind. I am not therefore prepared to rule that a condition is such that it makes it undesirable for him to give evidence and therefore to exclude the comment which I must then make under the Act.”
[36]We note that on a later reference to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission ([2004]) EWCA Crim 2661) in R v Billy-Joe Friend, the Crown accepted that it would not have invited the court to give a section 35 direction in light of the discovery that the defendant suffered from the previously undiagnosed condition of attention deficit and hyperactivity disorder (ADHD) at the time of her trial. It was accepted that the judge, in these circumstances, would not have ruled in favour of allowing the jury to draw an adverse inference from the failure to give evidence.[37]In R v Hamberger [2017] EWCA Crim 273; [2017] 4 WLR 77 the appellant was suffering from ischaemic heart disease as well as a number of other serious health conditions. The trial proceeded in his absence following his transfer back to prison, via hospital, having suffered from chest pains when he was brought to court for his trial. The judge indicated that the jury would be told that he was not present because of his medical condition and no adverse inference should be drawn from his absence. The judge found he was involuntarily absent through ill health.[38]It is clear from R v Dixon (Jordan) [2013] EWCA Crim 465; [2014] 1 WLR 525 that the application of section 35(1)(b) is not confined to those cases where the giving of evidence would have an adverse effect on the health of a defendant and instead the question for the judge is a broad one, applying a wide margin of appreciation.[39]In our judgment, the central flaw in the judge’s decision to give the section 35 direction was that the experts agreed – it was, we stress, entirely uncontested – that the mental condition of the appellant was such that he was unable to distinguish reality from delusions. This was not a case, therefore, in which safeguards would have provided any appropriate protection for the appellant whilst giving evidence, because no measures arranged by the court would have resolved this fundamental difficulty with any testimony he gave. Furthermore, this was not a case in which the jury were being invited to decide which of two rival expert opinions they preferred, because on this central dilemma the experts were not in contention. Although the jury was the ultimate decision maker on all the matters of fact, it is difficult to perceive any rational basis on which they could have rejected this critical agreed fact.[40]Against that background, the insuperable difficulties as regards his testimony would have arisen as soon as the appellant reached the witness box. The process of taking the oath or making an affirmation would have been essentially meaningless since the appellant cannot distinguish the truth from untruths (delusions). When asked his name, he would in all sincerity have said that he is Ian Brown and he would, if asked, have described his delusional family history. As set out above at [32], Hughes LJ observed in R v Tabbakh that “(t)he purpose of section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence”. Applying that approach, in our judgment it was undesirable for the appellant to be expected to testify, when it was uncontested that he is unable to tell reality and delusions apart. As Mr Kane aptly summarised the issue, he would have been asked to give evidence on matters about which he has no insight, particularly given he is unaware of the fact, extent, symptoms and impact of his illness. We agree, therefore, that it would have been undesirable for the appellant to be expected to distinguish reality from delusion when this is beyond his capacity.[41]The test in section 35 (1) (b) is singularly aptly drawn in our view. The defendant is not prohibited from giving evidence, but instead he or she is relieved of the risk of potentially adverse inferences being drawn from his or her failure to give evidence because it has been (judicially) recognised that on account of his physical or mental condition it is “undesirable” that he or she should testify. In R v Barry (Adrian Joseph) [2010] EWCA Crim 195 this court at [20] considered the position prior to the implementation of section 35, and in the course of its analysis approved the proposition that section 35 (1) (b) “specifically addresses” the situation when a defendant is suffering from delusions or is “on the border of insanity” (the court, we note, was focusing in this regard on the judgment of Lord Parker CJ in Bathurst (1968) 52 Cr A R 251 at pages 255 – 256, a case which self-evidently pre-dated section 35). Such a situation – when the defendant suffers from delusions or is “on the borderline of insanity” – is to be distinguished from cases such as Mulindwa (see [31] and [32] above). In the latter case, as rehearsed above, the appellant suffered from a psychotic disorder (paranoid schizophrenia) and was treated by medication which, for the most part, kept his hallucinations under control or to a minimum. There was evidence from a psychologist that there were clear behavioural signs, identified by her, that he may be responding to hallucinatory voices. If they occurred whilst he was giving evidence, it would be clear that something was amiss. The expert evidence of the psychologist would explain to the jury what it was, or may be occurring, to assist them in considering his evidence and the way he gave it (see [41]). By way of contrast, there was no mechanism proposed in the present case to enable the jury to determine whether the appellant was merely rehearsing his delusions, which would have been of no assistance to them.[42]With great respect to this senior and highly experienced judge, we are unable to accept the central justification he provided in his ruling on this issue. Having indicated (as set out above) that the jury would need to resolve the difference between the psychiatrists on whether the appellant’s account was delusional or not, the judge went on to suggest, “[…] well, in order to determine their decision on the defence of diminished responsibility and the resolution of that difference of opinion would determine how they would go about assessing any evidence given by the defendant. It would also, in my judgment, guide the jury in their decision whether in fact they should draw inferences pursuant to section 35”.The essential difficulty with that passage, as we have already rehearsed, is that it was the undisputed evidence of the expertsthat the mental condition of the appellant was such that he was unable to distinguish reality from delusions.[43]This is likely to prove to be an exceptional case. In our view, the judge should have directed the jury that given the appellant’s inability to distinguish truth from delusions, they should not hold it against him that he did not give evidence.[44]We would add, however, that there was an additional difficulty with the approach taken to the expert psychiatric evidence in this case. The judge in his ruling appeared to indicate that the evidence of the Dr Crosby and Dr Evans was admissible on the issue of whether the account the appellant had given to them as to the circumstances of the killing was delusional. This approach, in our judgment, was wrong in principle. The correct position was explained in Mulindwa as set out in full at paragraph 34 et seq. of the judgment, as cited at [32] above. This was a decision that was exclusively for the jury. As explained in Mulindwa as set out above, “there is a clear dividing line between evidence from a psychiatrist or a psychologist which may legitimately provide the jury with necessary assistance in understanding the presentation of a defendant in the witness box, and impermissible evidence from such witnesses which amounts to no more than an expert’s opinion on the credibility or truthfulness of the evidence of the witness, an issue which must remain a matter exclusively for the jury. The former is permissible because it is designed to enhance the ability of the jury to perform its fact finding role. The latter is impermissible because it has the effect of suborning the jury’s fact finding role and substituting for it the decision of the expert” (see the judgment in Mulindwa at [36]). The dividing line between these two positions may sometimes be hard to discern. Nonetheless, this separation of roles must be respected unless it is necessary for the expert to express his or her view on an issue which is central to the decision to be taken by the jury so as to provide substantial help to the triers of fact, or because the expert’s view on matters which he or she can legitimately comment may otherwise be critical to the jury’s fact-finding role. This was discussed in Pora v R. (New Zealand) [2015] UKPC 9, a case in which Professor Gudjonsson had trenchantly asserted that the defendant’s confessions were unreliable and had advanced a theory as to why he had confessed. At [27] Lord Kerr observed: “The dangers inherent in an expert expressing an opinion as an unalterable truth are obvious. This is particularly so where the opinion is on a matter which is central to the decision to be taken by a jury. There may be cases where it is essential for the expert to give an opinion on such a matter but this is not one of them. It appears to the Board that, in general, an expert should only be called on to express an opinion on the “ultimate issue” where that is necessary in order that his evidence provide substantial help to the trier of fact. As observed above, Professor Gudjonsson could have expressed an opinion as to how the difficulties that Pora faced might have led him to make false confessions. This would have allowed the fact finder to make its own determination as to whether the admissions could be relied upon as a basis for a finding of guilt, unencumbered by a forthright assertion from the expert that the confessions were unreliable. In this way it would be possible to keep faith with and preserve the essential independence of the jury’s role, which is to evaluate all the relevant evidence, including both expert evidence and other evidence which the expert may have no special qualification to evaluate.[45]In the present case, the experts could properly have testified as to the aspects of the appellant’s account which were indicative of either a real or a delusional account, and the relative strength of those aspects, leaving it to the jury to make up their own minds as to whether or not it was. We entirely accept that the permissible evidence from the two psychiatrists would have come close to revealing their view on the ultimate issue. We further acknowledge that an expert’s evidence may be valueless if he or she does not express a particular opinion, in which case it may be permissible for the evidence to be given (with the judge providing appropriate directions) but nonetheless it is important that, to the extent possible, it is left to the jury to decide – on what may be the central issue – whether the appellant’s account was real or delusional (see generally on this issue Phipson on Evidence at 33-12 et seq.).[46]It remains for us to indicate that we were unpersuaded by Mr Hall’s contention that the appellant’s account was consistent with the physical evidence at the scene. Whether or not that is correct, it had no substantive bearing on the central question of the appellant’s mental state, as considered in detail above. Similarly, we reject the Crown’s argument that the conviction is safe in any event. To the contrary, we consider that the section 35 direction would potentially have had a significant and impermissible adverse impact on the jury’s assessment of the complete defence of self-defence and the partial defences of loss of control and diminished responsibility, such as to render the verdict unsafe. It is accepted by Mr Kane that in the event that we reach this conclusion, the appellant should be retried. We accordingly allow the appeal, quash the conviction and order a retrial.