By Erim Mushtaq
Unfitness to plead – impact on subsequent appeal
R v Roberts
 EWCA Crim 1270
The CACD set out the procedure to be adopted when a defendant who has been found unfit to plead and subsequently been found to have committed the actus reus of the offence, wishes to pursue an appeal against the finding of fact.
R was found unfit by the Recorder in the Crown Court. Counsel was appointed to put the defence case. Pursuant to s.4A of the Criminal Procedure (Insanity) Act 1964, the jury found he had committed the acts in respect of two offences of meeting a child following sexual grooming, contrary to s.15 Sexual Offences Act 2003. He was sentenced to a hospital order under s.37 Mental Health Act 1983 and the Court imposed a Sexual Harm Prevention Order.
R prepared voluminous grounds of appeal himself. The case was referred to the full court and counsel was appointed by the Registrar to represent Mr Roberts’ interests.
One ground of appeal was pursued by counsel relating to the admissibility of bad character evidence. The remainder of the grounds were considered by the Court but not pursued by counsel. The CACD reaffirmed the position in R v Creed  EWCA Crim 144 that the bad character provisions did apply to finding of fact proceedings and that in this case the Recorder was correct to admit the various material in evidence.
Whilst the application was refused, the CACD took the opportunity to clarify the procedure to be adopted when dealing with applications from applicants found unfit. The Court provided that:
Competence to launch an appeal
- Where an individual has been adjudged unfit under s.4 CP(I)A 1964, the individual is not competent to appeal in person against that ruling or any subsequent ruling under s.4A of the Act.
- S.15 Criminal Appeal Act does not extend to individuals acting in person, as the individual has to be judicially determined on expert psychiatric evidence to be unfit to plead or stand trial.
- The above does not mean that an individual adjudged to be unfit cannot appeal. The process to be adopted is found within section D9 of the Guide to Commencing Proceedings in the Court of Appeal, Criminal Division (August 2008), which provides that the accused can seek to appeal against a finding of unfitness or that he did the act/omission charged by the person appointed to represent the accused.
Legal representative’s obligations
- It is the duty of the person appointed by the court to present the defence case to consider as a matter of professional obligation whether an appeal might properly lie against the finding of unfitness, the finding of fact or the disposal. The person appointed may have regard to the instructions of the accused but this is a matter of judgment and those instructions will not bind the representative as they come from an individual who has been assessed and determined as unfit.
- If the appointed person considers there are no arguable grounds and does not settle a Notice of Appeal, there can be no valid appeal. The individual will not be competent to pursue an appeal in person, nor is competent to instruct fresh counsel or solicitors to pursue an appeal on his or her behalf.
- However, if the appointed advocate believes there are no grounds of appeal, the case papers are then to be referred to the Single Judge to review and consider under s.31B CP(I)A 1968, whether to give a direction that such a person should be appointed. If the Single Judge finds that there are no properly arguable grounds, the application will be rejected by the Single Judge on the basis that it is ineffective by reason of lack of mental capacity but the Single Judge will give such reasons on the grounds actually sought to be pursued indicating that they lack sufficient merit to justify appointing a person to put the case. Thereafter there can be no right of renewal to the Full Court (see below).
The Single Judge
- If the Single Judge considers on the papers that there may be potential arguable grounds, then the Single Judge is entitled to direct that fresh counsel be appointed to consider whether there are viable grounds, to settle them if there are grounds and to present the case to the Court of Appeal. The process will be for the grounds to be placed before the Single Judge, preferably the same one, and for the Single Judge to consider on the papers if leave is to be granted or if the application is to be referred to the Full Court. If fresh counsel is of the view that there are no viable grounds to be advanced, then the matter is to be referred to the Single Judge who will reject the application.
Recovery of capacity prior to the appeal
- Where an applicant claims subsequently to have recovered mental capacity, and states that they want to pursue an appeal, this will not be accepted in the absence of fresh, psychiatric evidence. If such evidence is lodged in support of the application for permission to appeal, then the papers will be referred to the Single Judge (together with the application to adduce such evidence and any application for an extension of time). The Single Judge will then determine whether it is in the interests of justice for a person to be appointed to put the case under s.31B.
Legal professional privilege
- Privilege applies to communication between the unfit individual and the advocate appointed. It is a matter for counsel to consider what use can be made of the instructions given. Where the individual seeks to criticise the person appointed on their behalf, the question of waiver of privilege may arise. An unfit individual cannot himself or herself meaningfully waive privilege (the Registrar asked Mr Roberts whether he waived privilege and he agreed, a course of action which the Court stated was an incorrect procedure but that no prejudice had arisen in his case). Waiver of privilege will therefore be a matter for the appointed advocate or the freshly appointed advocate to decide, acting in the best interests of the accused and having regard to their normal duties to the Court.
- A new amended form might be appropriate in such cases other than the standard NG form used.
Costs of the appeal
- The costs of such an appeal should not be covered by a representation order but rather an order should be made for payment to be made out of central funds where an appeal against a finding of unfitness or the finding of fact that he or she did the act/omission charged is allowed, to be capped at legal aid rates. Where leave is granted or referred to the full Court, an application can be made to the Court at the conclusion of the hearing for the defendant’s costs. Where an appeal against either determination is reasonably and properly brought, if the appeal is unsuccessful, the legal representatives should be remunerated. Where the Single Judge has refused leave, then that judge determines whether to make a costs award out of central funds of the application for leave.
Erim Mushtaq appeared as counsel for Mr. Roberts in the application for leave. She was appointed by the Registrar of Criminal Appeals.
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