S v R

An appellate court may set aside a finding that an accused person was unfit to plead only if the finding was wrong when made. Later evidence of recovery or present fitness does not undermine a valid historic finding.

Where a hospital order was made without a restriction, the statutory recovery-and-remittal procedure is unavailable and the Court of Appeal has no power to remit the case for a trial on the merits. A challenge to an indefinite sexual-offences prevention order based on changed circumstances should instead be made to the Crown Court under the applicable statutory variation procedure.

The applicant had been convicted at Blackfriars Crown Court in 2005 of rape and indecent assault on his wife. In 2008 the Court of Appeal allowed his appeal after receiving fresh evidence that he had then suffered from undiagnosed autism.

On the retrial process, the Crown Court found him under a disability and unfit to plead. A jury subsequently found that he had committed the alleged acts. The court imposed concurrent hospital orders and an indefinite Sexual Offences Prevention Order.

More than five years later, the applicant sought leave to appeal in person. He relied on a purported retraction letter and evidence that he was now fit to plead. He also challenged the continuing notification consequences of the indefinite order.

1. The application for leave to appeal was refused. The purportedly new retraction letter had in fact been before the jury and had been addressed in the summing-up. It therefore provided no basis to challenge the jury’s finding that the applicant committed the acts.
2. Later psychiatric evidence that the applicant was fit to plead did not impugn the Crown Court’s 2008 finding that he was then unfit to be tried. The Court of Appeal could set aside that decision only if it had been wrong at the time. The applicant neither alleged nor established that it was wrong on the evidence or in law.
3. Under section 5 A(4) of the Criminal Procedure (Insanity) Act 1964, recovery may lead to a remittal for trial only where the hospital order carries a restriction. The applicant’s hospital order had no restriction. The statutory route was therefore unavailable, and this court had no power to remit the case to the Crown Court for a trial on the merits.
4. The court also declined to review the indefinite Sexual Offences Prevention Order through this late appeal. The applicant did not contend that the order had been wrong when made, and a later change of circumstances did not make appellate review appropriate. The court observed, without expressing any view on the merits, that he could apply to Blackfriars Crown Court under section 108 of the Sexual Offences Act 2003 to discharge or vary the order.

• Court of Appeal (Criminal Division): On 20 January 2015, the court refused the applicant’s late application for leave to appeal: [2014] EWCA Crim 2648.
• Crown Court at Blackfriars: In June 2008, the judge found the applicant under a disability and unfit to plead. A jury found that he had committed the acts, and concurrent hospital orders and an indefinite Sexual Offences Prevention Order were imposed.
• Court of Appeal: On 23 January 2008, the full court allowed the appeal against the 2005 convictions after admitting fresh evidence concerning previously undiagnosed autism.
• Crown Court at Blackfriars: On 12 August 2005, the applicant was convicted of rape and indecent assault.