CASE UPDATES

MENTALLY UNFIT CO-DEFENDANT

Regina v B and Others, 15^th August 2008 (Published in The Times October 8, 2008)

Several defendants were to stand trial for numerous charges of sexual offences. Judge John Boggis, QC, in Southampton Crown Court ruled that, in light of one defendant’s unfitness to stand trial through mental illness, and another’s as a result of a stroke, the trial of the several defendants could no longer be heard by a single jury and that separate trials should take place.

The Court of Appeal ruled that the judge had erred in holding that it was inescapable that separate trials should be held. Where one of several defendants became unfit after a jury had been empanelled, it would be possible for the same jury to consider in the case of that defendant whether he had committed the actus reus, although the question of guilt would now be removed. It therefore followed, on the instant facts, a single jury once empanelled could in principle proceed to consider whether the alleged principal offender had committed the actus reus while looking, in the case of other fit defendants, to both actus reus and mens rea.

Since the judge had erred in principle it was therefore necessary to revisit the question whether that course should be permitted on the particular facts. There were four interests to be looked at, those of: (i) the unfit defendant; (ii) the fit defendants; (iii) the witnesses; and (iv) the public.

The conclusion differed in the case of the two unfit defendants: for one the trial could proceed before the same jury as that considering the other fit defendants’ cases, but the jury would look only to the actus reus in his case. In the case of the other unfit defendant there was no need to rescind the order for separate trials.  

 

Criteria to be taken into account by Court of Appeal when granting leave   
 
Regina v Al-Ali; [2008] WLR (D) 302 

When granting leave to a prosecutor to appeal from a ruling of a trial judge in the Crown Court, it was held that the Court of Appeal (Criminal Division) should look rather more widely at the interests of justice than simply considering whether the appeal had a realistic prospect of success because even if the judge’s ruling were held to be wrong it would only be if it were in the interests of justice that an order should be made to resume the trial or to start a fresh trial.  
 
The Court of Appeal, Criminal Division, so held when refusing an application by the Crown under s 58 of the Criminal Justice Act 2003 for leave to appeal against a ruling made on 2 July 2008 at Southwark Crown Court by Mr Recorder Bartle QC that there was no case for the defendant, Firas Al-Ali, to answer in respect of the two offences of handling stolen goods with which he was charged. 
 
SCOTT BAKER LJ, giving the judgment of the court, said that the legislation gave no indication as to the criteria that the Court of Appeal should take into account in deciding whether to grant leave to the Crown to appeal in an individual case. It seemed to their lordships that in deciding whether to grant leave to appeal they should apply a broad “interests of justice” test rather than ask merely whether the prosecutor’s case was arguable or had some prospect of success. In reaching that conclusion they had very much in mind the provisions of s 61 of the Criminal Justice Act 2003, particularly s 61(5) which provided that “the Court of Appeal may not make an order under subsection (4)(a) or (b) [reversing or varying the ruling and either ordering that proceedings for that offence resume or ordering that a fresh trial take place in the Crown Court] in respect of an offence unless it considers it necessary in the interests of justice to do so.” If the court concluded that the judge’s ruling was wrong but that it was not necessary in the interests of justice for the trial to be continued or resumed, the defendant could be acquitted in accordance with s 61(4)(c). In their lordships’ judgment, in deciding whether or not to grant leave to appeal, it was important to look ahead to see what options were available for the court in the event that the appeal succeeded. A complication had arisen as a result of the coming into force on 14 July 2008 of s 44 of the Criminal Justice and Immigration Act 2008 which substituted a new provision for s 61(5) so that the question that arose for decision after that date was whether the defendant could receive a fair trial if an order were made under subsection (4)(a) or (b), rather than applying the “interests of justice” test. That provision, however, did not bite directly on the present application because it was launched before the critical date of 14 July 2008 (see para 16 of Sch 27 to the 2008 Act) but in their lordships’ judgment, even if the law applicable under s 61(5) had changed Parliament had done nothing to limit the discretion which the court had.

Their lordships made the following observations about the present case:

(1) whether the judge was right or wrong this was not a strong case;

(2) the defendant was a man of good character;

(3) the offence did not cross the custody threshold;

(4) were there to be a further trial there would be an additional charge on public funds to pay for the prosecution and defence;

(5) a retrial would be disproportionate to the gravity of the offence;

(6) appeals by the prosecution in cases where there was little or no public interest involved should not be encouraged.  

 

  

DIMINISHED RESPONSIBILITY – ALCOHOL DEPENDENCY 

R v Wood [2008] EWCA Crim 1305; [2008] WLR (D) 204 
  
The Appellant, Clive Wood, appealed against his conviction on 11 October 2006 in the Crown Court at Wolverhampton before Mitting J and a jury of murder. The Court of Appeal held that in addressing a plea of diminished responsibility in the context of alcohol dependency syndrome, the jury must consider whether it had been established that the defendant’s syndrome was of such an extent and nature that it constituted an abnormality of mind induced by disease or illness, and, if that were established, whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. 
  
SIR IGOR JUDGE P, giving the judgment of the court, said that R v Tandy [1989] 1 WLR 350 had to be reassessed in the light of R v Dietschmann [2003] 1 AC 1209. In the context of alcohol dependency syndrome, the sharp effect of the distinction drawn in R v Tandy between cases where brain damage had occurred as a result of alcohol dependency syndrome and those where it had not, was no longer appropriate. Whether or not brain damage had occurred, the same question (i e whether it had been established that the defendant’s syndrome was of such an extent and nature that it constituted an abnormality of mind induced by disease or illness) arose for the decision of the jury. If the syndrome did not constitute such an abnormality of mind, diminished responsibility based on the consumption of alcohol would fail. If, on the other hand, it did, the jury must then be directed to address the question whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. In deciding that question the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily. If a jury decided that the syndrome constituted an abnormality of mind induced by disease or illness, its possible impact and significance in the individual case must then be addressed. That involved questions such as whether the defendant’s craving for alcohol was or was not irresistible, and whether his consumption of alcohol in the period leading up to the killing was voluntary (and if so, to what extent) or was not voluntary, and led to the ultimate decision, which was whether the defendant’s mental responsibility for his actions when killing the deceased was substantially impaired as a result of the alcohol consumed under the baneful influence of the syndrome.

In the instant case the trial judge’s direction that “giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise”, implied that there was no such thing as an irresistible craving and his additional remark that a defendant “later choosing to accept a drink after he has reached his normal quota, is not drinking involuntarily”, was in effect a direction that such a choice was voluntary even when made by an alcoholic. Taken together, those observations implied, wrongly, that unless every drink consumed that day by the defendant was involuntary, his alcohol dependency syndrome was to be disregarded.