Court of Appeal: DPP wrong to argue that man found unfit to be tried must be committed to mental hospital

About this case:

• Judgment:
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MB was charged before the Central Criminal Court for 27 counts of rape and 29 counts of sexual assault against a female (CC) between 1994 and 2000. In March 2015, following a trial of the issue as to whether MB was fit to be tried, the Central Criminal Court determined that MB was unfit to be tried under the Criminal Law (Insanity) Act 2006 (as amended by the Criminal Law (Insanity) Act 2010).

The DPP appealed to the Court of Appeal upon two complaints:

The appeal on the merits

The DPP’s complaint was that there was an inadequate evidential basis for the views put forward by Dr O’Connell that MB was suffering from a depression in the context of an intellectual disability that was operating so as to interfere with his cognitive capacity.

For the DPP “to have succeeded on the merits she would have to have been in a position to demonstrate that there was simply no evidence capable of supporting Dr O’Connell’s view”.

Justice Edwards found that “there was more than adequate evidence capable of supporting” Dr O’Connell’s view, and therefore rejected the appeal against the merits of the trial judge’s ruling that MB was unfit to be tried.

The procedural issue

Once the trial judge had declared MB unfit to be tried, prosecuting counsel submitted to the trial judge that he was obliged at that point, by the combined terms of subsections (5) and (6) of s. 4 of the Criminal Law (Insanity) Act 2006, to direct that MB should attend a designated centre, either on foot of a committal order, or on a voluntary basis as an outpatient, for the purpose of being assessed as to his treatment needs by an approved medical officer, who would then report to the Court, and that pending receipt of the approved medical officer’s report he should adjourn the case until further order.

Justice Edwards emphasised the importance of appreciating that “a finding of unfitness to be tried does not necessarily mean that a person is unfit, or lacks the capacity, to take valid decisions concerning whether or not they will seek, and/or avail of medical treatment”.

In R v. Berry 66 Cr App R 156 it was said that “a high degree of (mental) abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on” – therefore a mentally ill defendant can be both psychotic and fit to plead, and conversely, an unfit person would not necessarily require admission to a psychiatric hospital for treatment.

Significantly, under s. 4(6)(a) of the Criminal Law (Insanity) Act 2006, a judge is only empowered to send a person found unfit to be tried to that institution for assessment purposes on an in-patient basis – the Act does not provide for it to be done on an outpatient basis.

The psychiatrists on both sides of the case were in agreement that it would be contrary to the welfare of MB to commit him to the Central Mental Hospital even if it was only on a short term basis for assessment purposes – therefore it would have been inappropriate for the trial judge to make an order contrary to express medical evidence.

To have done so would have been to expose MB to a risk of harm and potentially to breach several of his constitutional rights, and rights guaranteed to him under the ECHR, including his right to bodily integrity, his right to liberty and his entitlement, as an aspect of his right to be treated with human dignity and to autonomous decision making in regard to issues relating to his own health.

Accordingly, the three-judge Court of Appeal was satisfied that the trial judge could not lawfully have sought to commit MB to the Central Mental Hospital in reliance on s. 4(6) of the Criminal Law (Insanity) Act 2006, and the DPP was “in error in suggesting otherwise”.

Conclusion

The Court did not see fit to uphold either of the DPP’s grounds of complaint, and the appeal was dismissed.