Walls, R v

Fitness to plead is determined by the Pritchard criteria, as interpreted in Podola. The question is whether the defendant can plead and has sufficient intellect to understand the proceedings, challenge jurors and understand the evidence sufficiently to make a proper defence.

Low intelligence, learning disability, anxiety or psychiatric agreement do not by themselves establish unfitness. Except in clear cases, the court must rigorously test expert evidence against the legal criteria and reach its own conclusion from all the evidence, giving proper weight to contemporaneous indications of the defendant’s capacity. Before ordering a trial of fitness, courts should consider whether an intermediary or other adjustments can enable fair participation.

The appellant was convicted at the Crown Court at Coventry of two counts of sexual assault on a child under 13 and an offence of committing an offence with intent to commit a sexual offence. He later received a three-year community order.

Following psychological and psychiatric reports which recorded low intelligence and learning disability, he sought leave to appeal out of time. He contended that he had been unfit to plead at trial and asked the Court of Appeal to receive fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968.

Both psychiatrists considered that he had been unfit to plead, but neither had addressed the governing legal criteria in the original report. The central issue was whether his cognitive and hearing difficulties established unfitness under the Pritchard test.

1. Leave to appeal was granted, but the appeal was dismissed. The court received and tested the fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. It concluded that the appellant had not been unfit to plead at his trial.

2. The governing test remained that in Pritchard (1836) 7 C&P 303, as interpreted in Podola [1961] 1 QB 325. The material question was whether the appellant could understand the trial well enough to make a proper defence. “Comprehend” meant no more than understand. A defendant’s abnormality, low IQ or learning disability did not itself show incapacity to perform the required functions.

3. The court had to decide fitness for itself on all the evidence. It rejected Dr Clark’s evidence as unreliable and insufficiently related to the legal criteria. Although Dr Morgan was a more satisfactory witness, his evidence, considered with the appellant’s detailed police interview, his understanding of the charges and court roles, and the absence of any contemporary indication of unfitness, did not establish incapacity under the legal test. The court applied the importance of a contemporary assessment explained in R v Erskine [2009] EWCA Crim 1425.

4. Except in clear cases, psychiatric evidence must be rigorously analysed against the legal criteria. Agreement between psychiatrists does not relieve the court of its duty to reach its own conclusion.

5. The court also stressed the seriousness of a finding of unfitness. It triggers the procedure under section 4A of the Criminal Procedure (Insanity) Act 1964 and may greatly restrict available disposals. Before embarking on a fitness trial, courts should consider intermediaries or other adjustments, including the inherent-power approach described in R(C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin).

• Court of Appeal (Criminal Division) — granted leave to appeal out of time, received fresh psychiatric evidence, and dismissed the appeal against conviction.
• Crown Court at Coventry — convicted the appellant on 26 November 2008 of two sexual assaults on a child under 13 and an offence of committing an offence with intent to commit a sexual offence; later imposed a three-year community order.