Martin, R. v

For an accused found unfit to plead, the inquiry under section 4A of the Criminal Procedure (Insanity) Act 1964 may extend to secondary participation in a murder. The jury must identify and find the minimum facts constituting the accused’s participation. This may require an objectively inferred finding of knowledge where that knowledge defines the relevant participation.

Admission of an absent witness’s statement under the Criminal Justice Act 1988 remains a fact-sensitive interests-of-justice decision. Article 6 does not impose an unqualified rule against such evidence. However, admission is unfair where the statement is the entire case, the witness has substantial credibility weaknesses, and an accused who is unfit to plead has no realistic means of testing it.

The appellant was found unfit to plead and was therefore tried under section 4A of the Criminal Procedure (Insanity) Act 1964 on an allegation of murder arising from a group chase and stabbing.

At the Central Criminal Court, the judge directed the jury that it could find the appellant had done the act charged if he had personally stabbed the victim, or had participated in an attack which he knew was a knife attack. The prosecution case against him depended entirely on two written statements by Tamba Bona, who refused to give oral evidence. The statements were admitted under section 23 of the Criminal Justice Act 1988.

The jury found that the appellant had done the act charged, and the judge made a hospital order with an unlimited restriction. The appeal challenged both the direction on the statutory meaning of the act and the admission of Bona’s statements, principally on fairness grounds under article 6.

1. Appeal allowed. The court upheld the judge’s direction on the meaning of the act under section 4A, but held that Bona’s statements should not have been admitted. The jury’s determination was quashed.

2. Under section 4A of the Criminal Procedure (Insanity) Act 1964, the inquiry concerns the actus reus rather than criminal intent. Where liability is alleged as a secondary party, the relevant act is participation in the joint enterprise or common purpose. The jury must decide the minimum facts establishing that participation, including its purpose and whether the actual perpetrator’s act went radically beyond it. If knowledge is necessary to establish that level of participation, it may be inferred objectively from independent evidence. The judge was therefore entitled to direct that participation in an attack known to be a knife attack could establish the act of murder.

3. The court accepted that article 6 does not establish an unqualified rule that a written statement must always be excluded merely because it is sole or decisive evidence from a witness whom the accused cannot examine. The statutory question under section 26 of the Criminal Justice Act 1988 is whether admission is in the interests of justice, having regard to the statement’s contents, the ability to controvert it, the risk of unfairness, and all other relevant circumstances.

4. On these facts, admission was unfair. Bona’s statements were the entire case against the appellant. Bona had initially been suspected of involvement, had a possible motive to shift blame, had asked about a reward, and had materially expanded his account between statements. The appellant’s disability made cross-examination the only realistic means of testing Bona’s credibility; he could not give coherent evidence or meaningful instructions, and there was no realistic alternative evidence of innocence. Counsel’s comments could not adequately compensate for the absence of cross-examination.

5. The resulting breach of article 6 made the statutory finding unsafe. The proposed fresh evidence was unnecessary to the decision, and the challenge to the hospital order did not arise.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed the jury’s finding under section 4A of the Criminal Procedure (Insanity) Act 1964.

• Central Criminal Court The appellant was found unfit to plead. A jury later found that he had done the act charged with murder under section 4A, and a hospital order with an unlimited restriction was made.