Ehi-Palmer, R v

Fitness to participate in criminal proceedings must be assessed in the context of the particular trial and the demands it makes on the defendant. Where the issue arises, the judge must address it under the Criminal Procedure (Insanity) Act 1964; a formal finding of unfitness requires the statutory medical evidence.

A judge retains a cautious discretion to continue a trial in a defendant’s absence. Involuntary illness normally gives stronger grounds for resisting continuation. A defendant incapacitated by drugs voluntarily taken during the trial cannot complain in the same way. The court should nevertheless consider how the absence and any relevant agreed facts should be explained to the jury.

The appellant was convicted at the Crown Court at Croydon of attempted rape and sentenced to five years’ imprisonment. During the latter part of his trial he displayed increasingly unusual and paranoid behaviour. After his evidence had ended, he became unwell and the trial continued in his absence. A psychiatrist later reported that he was then unfit to stand trial or participate.

On appeal, fresh psychiatric evidence established that the appellant had suffered an abnormal mental state during the trial, caused by his voluntary use in prison of a synthetic cannabinoid. The appeal challenged the decision to continue without a full psychiatric report, the absence of medical evidence before the jury, and the failure to proceed under the Criminal Procedure (Insanity) Act 1964. The central question was whether those matters made the conviction unsafe.

1. Appeal dismissed. The court held that the conviction was safe. It admitted fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968.

2. The appellant’s abnormal mental state was caused by his voluntary use of spice while in prison. Although he behaved oddly and intermittently expressed paranoid beliefs from 24 June, he could participate in the trial and give his evidence until 29 June. After that date, he was not fit to participate.

3. When Dr Burgul’s report became available, fitness to participate was squarely raised. Under section 4 of the Criminal Procedure (Insanity) Act 1964, the judge had to address the issue and consider discharging the jury. A determination of unfitness required the evidence of two registered practitioners, including an approved practitioner. The issue arose after the evidence had closed, and the report was a provisional assessment by one doctor without background information. Applying R v Ghulam [2010] 1 WLR 891, the trial judge was entitled, on the evidence then available and his own observations, to refuse to discharge the jury.

4. The initial decision to seek a psychiatric report was correct. It was unfortunate that the decision to continue without one was driven by the anticipated delay. If a trial continues in those circumstances, the judge should specifically consider what the jury should be told about the absence and whether an agreed fact should explain it.

5. Applying the principles in R v Jones (Anthony) [2003] 1 AC 1 (HL), continuation in a defendant’s absence is discretionary and requires great caution and overall fairness. The appellant’s absence resulted from psychosis, but that condition followed his voluntary drug-taking during the trial. He had already completed his evidence and did not suffer the procedural disadvantages identified in Jones. The limited explanation given to the jury, and the absence of medical evidence about the cause of his condition, did not create unfairness. There was abundant evidence on which the jury could be sure of guilt.

• Court of Appeal (Criminal Division) — The appeal against conviction was dismissed and the conviction upheld ([2016] EWCA Crim 1844).
• Crown Court at Croydon — The appellant was convicted by a majority of attempted rape on 2 July 2015 and was sentenced to five years’ imprisonment on 20 August 2015.