Charisma, R. v

Under section 35(1)(b) of the Criminal Justice and Public Order Act 1994, the issue is whether the accused’s physical or mental condition makes it undesirable for him to give evidence. Mental illness does not of itself meet that test.

Where an accused is fit to stand trial and give instructions, and an asserted memory loss is disputed and uncorroborated, the ordinary section 35 regime may apply. The accused may give evidence of genuine memory loss, subject to cross-examination, and the jury may assess both its genuineness and its effect on the other evidence.

The appellant was convicted at the Crown Court at Manchester of rape and causing a person to engage in sexual activity without consent. He received a hospital order with restrictions.

He appealed against conviction with leave of the single judge. He did not challenge the terms of the trial judge’s direction under section 35 of the Criminal Justice and Public Order Act 1994. His sole complaint was that no such direction should have been given because his mental condition made it undesirable for him to give evidence under section 35(1)(b).

Psychiatric evidence established mental illness but also indicated that he was fit to stand trial and instruct solicitors. His claimed memory loss was not objectively supported and was regarded by one psychiatrist as inconsistent and unconvincing. The central issue was whether that condition engaged the statutory exception.

1. Appeal dismissed. The trial judge was entitled to give a direction under section 35 of the Criminal Justice and Public Order Act 1994. There was no evidential basis for finding that the appellant’s mental condition made it undesirable for him to give evidence within section 35(1)(b).

2. The appellant’s mental illness did not determine the issue. He was fit to plead, stand trial and instruct his legal advisers. He understood counsel’s advice about the consequences of not giving evidence, but had firmly decided not to attend the trial or testify.

3. The alleged loss of memory was materially disputed. The psychiatric evidence did not consistently support it, and there were grounds to doubt its accuracy. The appellant could have given evidence that he had no memory of the events or of his police interview. He would then have been open to cross-examination, and the jury could have decided whether the asserted memory loss was genuine.

4. If the loss of memory were genuine, the jury would have taken that into account and would not have treated his inability to describe the events adversely. If it were false, the jury could take that conclusion into account when assessing the reliability of his police account. Medical evidence could assist the jury to understand the appellant’s condition and its possible effect on memory, but could not decide whether the claimed loss was genuine.

5. The court noted that a different result might arise where giving evidence risked damaging consequences for an accused’s mental health, or where memory loss was unequivocally established, for example after serious brain trauma. Neither feature was present here.

• Court of Appeal (Criminal Division): appeal against conviction dismissed.
• Crown Court at Manchester: on 22 July 2008, the appellant was convicted of rape and causing a person to engage in sexual activity without consent. On 9 February 2009, he received a hospital order with restrictions.