B & Ors, R. v

A jury may determine, in one set of proceedings, both the guilt of fit defendants and whether an unfit co-defendant did the acts alleged under section 4A of the Criminal Procedure (Insanity) Act 1964. Section 11(4) of the Juries Act 1974 does not prohibit this course. The relevant issue is whether the allegations in the indictment are proved, while the rules governing the contents and joinder of an indictment arise elsewhere.

The same principle applies whether unfitness arises before or during jury proceedings. Whether a joint hearing should occur remains a fact-specific discretionary question. The court must fairly weigh the interests of unfit and fit defendants, witnesses, and the public.

The prosecution appealed, with the trial judge’s leave, from a preparatory ruling in proceedings at Southampton Crown Court concerning alleged sexual abuse over many years. Two defendants, D1 and D3, had been found unfit to plead. The trial judge held that their cases could not be determined by the same jury as the trial of the fit defendants, requiring separate proceedings and duplicated evidence.

The prosecution contended that the same jury could try the fit defendants and determine, under section 4A of the Criminal Procedure (Insanity) Act 1964, whether the unfit defendants had done the acts charged. The central questions were whether that joint procedure was lawful and, if so, whether it was just in the circumstances.

1. The appeal was allowed in part. The court directed that the question whether D1 did the alleged acts should be heard jointly with the trial of the fit defendants. It left undisturbed the effective severance of the single allegation concerning D3.
2. The judge had jurisdiction to conduct a preparatory hearing under sections 29 and 31 of the Criminal Procedure and Investigations Act 1996. The case was sufficiently complex. The proposed procedural course raised a question of law relevant to trial management and necessarily involved severance because it reduced the counts then to be tried. The court therefore had appellate jurisdiction under section 35(1). Kanaris [2003] Cr.App.R 1 confirmed that a preparatory hearing may be held for fit defendants jointly charged with a defendant who cannot be the subject of such a hearing.
3. A joint hearing was lawful. Section 4A(5) of the Criminal Procedure (Insanity) Act 1964 requires the jury already trying a defendant who becomes unfit after arraignment to determine whether that defendant did the act charged. The statute draws no distinction based on the stage at which unfitness occurs.
4. Section 11(4) of the Juries Act 1974 did not require separate juries. Its reference to one issue means the issue for which the jury was empanelled: whether allegations in an indictment are proved on the evidence. Proper joinder of defendants and counts is governed by other legislation and case law. A section 4A determination is the lesser factual issue within the original issue of guilt, namely whether the defendant committed the actus reus.
5. The discretionary decision required a fact-specific assessment of the interests of the unfit defendants, fit defendants, witnesses and the public. For D1, whose alleged conduct was central to the case, there was no identified unfairness to any fit defendant and strong reasons to avoid repeated traumatic evidence from numerous witnesses. D3 was differently situated: he faced one historic allegation and his severance would cause comparatively limited duplication. The court therefore did not interfere with the judge’s approach to D3. Further applications to sever particular counts remained open.

• Court of Appeal (Criminal Division) — in [2008] EWCA Crim 1997, allowed the prosecution’s appeal in part and directed a joint section 4A hearing for D1.
• Southampton Crown Court — at a preparatory hearing, HHJ Boggis QC had ruled that separate proceedings were inescapable for the fit and unfit defendants. No citation for that ruling is stated in the judgment.