Swinbourne, R v

Police-interview evidence from an accused found unfit to plead should ordinarily be admitted only if expert evidence establishes that, despite the finding of unfitness, the accused understood the caution and it was generally safe to interview him. If such evidence is admitted at a trial of the facts, the jury will usually require a tailored warning addressing the risk that apparent untruth or unreliability may result from the disability.

An erroneous admission will not make a finding unsafe where the extract merely identifies the coherent and reliable instructions on which the defence was properly advanced, and adds nothing to the real issue the jury were entitled to understand.

The appellant, who had severe learning difficulties, was found unfit to be tried under section 4(5) of the Criminal Procedure (Insanity) Act 1964. At a subsequent trial of the facts at Warwick Crown Court, a jury found that he had committed two acts of rape and he was made subject to a hospital order.

The Crown had adduced an edited agreed-facts extract recording his police-interview denial of sexual contact with the complainant. The appellant appealed against the findings, contending that the interview should not have been admitted and that the jury should have received a direction under R v Lucas [1981] 73 Cr App R 159. The central question was whether those matters rendered the jury’s findings unsafe.

1. Appeal dismissed. The interview extract should not have been admitted. The appellant’s mental impairment meant that he was likely not to have understood the caution. Following R v B [2012] EWCA Crim 1799, a finding of unfitness creates a real possibility that an accused lacks sufficient understanding to be interviewed. Before admitting such evidence, the court will usually require expert evidence that the accused understood the caution and that the interview was generally safe.

2. The same careful approach applies where it is proposed that an accused found unfit should give evidence at a hearing under section 4A(2) of the Criminal Procedure (Insanity) Act 1964. This reflected the observation in R v Antoine [2001] 1 AC 340.

3. Nevertheless, the wrongful admission did not make the findings unsafe. Independently of the interview extract, the appellant had given a clear and apparently reliable instruction that he had never had sexual relations with the complainant. That was the basis on which her evidence was challenged. Under rule 3.2 of the Criminal Procedure Rules, the judge could properly require the defence to identify that real issue. Counsel was not entitled to investigate speculative alternative defences inconsistent with coherent instructions.

4. The extract therefore added no material information. The appellant’s denial was inconsistent with a case that intercourse had occurred but was consensual, and the defence was properly advanced on the basis that the allegations were fabricated.

5. If interview evidence from an accused under a disability is admitted, a specially tailored warning will usually be needed. It may need to be broader than a conventional Lucas direction, because the jury must consider whether disability, rather than a deliberate attempt to mislead, explains what was said. On these facts, however, the absence of a direction did not render the findings unsafe: the jury were entitled to know the basis on which the complainant’s account was disputed.

• Court of Appeal (Criminal Division): dismissed the appeal against the jury’s findings that the appellant had done the acts charged in counts 1 and 3.
• Warwick Crown Court: after a finding of unfitness to be tried, the jury found that the appellant had done the acts charged in counts 1 and 3. A hospital order was subsequently made.