B, R. v

Where an accused’s condition at a police interview is materially unchanged from that which later supports a finding of unfitness to plead, the court cannot consistently admit the interview on the basis that the accused understood the caution and could participate adequately. Proceedings to determine whether an unfit accused did the act charged require especially careful case management. The court must protect both the accused’s rights and the public interest, including by allowing proper time to consider late material evidence. If the finding at a trial of fact is set aside and the appellate court has no power to order a retrial, it must direct an acquittal under section 16.

The appellant, who had a significant learning disability, was found unfit to plead at the Crown Court at Stoke-on-Trent. A jury then found that he had committed an act of sexual assault on a child under 13, and he received a two-year supervision order.

The prosecution depended on a police interview in which the appellant made admissions. The trial judge admitted that interview despite the psychiatric evidence and the finding of unfitness. The appellant appealed, with leave of the single judge, against the finding that he had done the act charged. The central issue was whether the interview could properly have been admitted in light of the appellant’s unfitness to plead.

1. Appeal allowed. The finding that the appellant had done the act charged was set aside. The court directed an acquittal because it had no power to order a retrial.
2. The psychiatric evidence described a condition which was materially the same at the police interview and when the appellant was found unfit to plead. That finding accepted that he lacked the relevant capacities, including the ability to understand the charge, instruct lawyers and understand the caution. The trial judge could not consistently find both that the appellant was unfit in those respects and that he had sufficiently understood the caution for the interview to be admissible.
3. Accordingly, the interview should not have been admitted under the supplied reference to section 67 of the Police and Criminal Evidence Act. Without it, there was no case that the appellant had done the act charged.
4. The court reiterated the guidance in R v Norman [2008] EWCA Crim 1810. Trials of fact involving an accused unfit to plead require particularly careful case management. The judge must ensure a fair inquiry and give proper weight to both the accused’s rights and the public interest. Here, time should have been taken to investigate the late-served DNA evidence rather than proceeding immediately.
5. The court expressed regret that it could not order a retrial, which it would otherwise have ordered in the public interest. It also observed that Parliament should remedy the absence of such a power.

• Court of Appeal (Criminal Division) — allowed the appeal, set aside the finding at the trial of fact, and directed an acquittal.
• Crown Court at Stoke-on-Trent — found the appellant unfit to plead. A jury subsequently found that he had done the act charged, and he received a two-year supervision order.