Sutton, R. v

A criminal trial is unfair where the order imposed for receiving evidence prevents a defence psychiatrist from giving a properly informed and intelligible opinion. Although defence witnesses may sometimes be called out of order, the jury should ordinarily hear the prosecution evidence, the defendant’s account and relevant background before the expert opinion founded upon that material. The order of proof must enable both the expert and the jury to assess the evidence fairly.

The appellant, a serving police officer, was convicted at the Crown Court at Woolwich of shoplifting. His defence was that psychiatric problems meant that he did not know what he was doing and lacked dishonesty and an intention permanently to deprive.

After the trial judge refused an adjournment, the defence psychiatrist was required to give evidence at the start of the trial, before the prosecution case and the appellant’s evidence. The appeal, brought with leave, concerned whether that order deprived the appellant of a fair trial. Following the successful appeal, the Crown sought a retrial.

1. The appeal was allowed. Requiring the defence psychiatrist to give evidence first deprived the appellant of a fair trial.
2. The psychiatrist’s opinion depended upon the appellant’s account of the incident and relevant personal background. Although the jury had heard the prosecution opening, they had not yet heard the prosecution witnesses, the appellant’s evidence or his account of that background. It was therefore extremely difficult for them to follow and assess the psychiatric evidence.
3. There is no absolute rule preventing defence witnesses from being called out of order. On these facts, however, the appropriate sequence was for the jury to hear the prosecution evidence, then the appellant’s evidence about the incident and his history, and then the expert evidence. That sequence would also have enabled counsel to ask the psychiatrist to comment on the evidence as it emerged.
4. The court additionally expressed concern that the summing-up repeatedly described the store detective’s evidence as unchallenged and undisputed, despite a material challenge to changes in that account. It did not base the decision to allow the appeal on that ground.
5. After hearing submissions, the court unanimously concluded that it was not in the public interest to order a retrial. Costs were ordered out of central funds, subject to assessment in the normal way.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 3129, the court allowed the appeal against conviction and unanimously declined to order a retrial.
• Crown Court at Woolwich: On 11 July 2007, a jury convicted the appellant by a majority of ten to two of theft contrary to section 1(1) of the Theft Act 1968.