Orr, R. v

Fitness to plead is properly a question of fitness to participate in the whole trial process. It may arise at any stage before acquittal. A defendant’s capacity to undergo cross-examination cannot be severed from the capacity to give evidence in his defence. Where an inability to participate satisfies the relevant criteria, section 4A of the Criminal Procedure (Insanity) Act 1964 imposes a mandatory procedure. A court cannot use a general discretion to preserve an ordinary trial, however beneficial that may appear. The jury must not return an ordinary verdict, although it may acquit if the evidence already given does not prove that the defendant did the act charged.

The appellant, a solicitor, was convicted at Southwark Crown Court of being concerned in a money-laundering arrangement. He had given evidence in chief over three days when two psychiatrists concluded that, because of his mental condition, he was unfit to continue giving evidence and particularly unfit for cross-examination.

The trial judge found that the appellant had been fit until that stage. He allowed the trial to continue without cross-examination, restricted the prosecution’s closing speech and directed the jury not to speculate about answers the appellant might have given. The appellant was convicted and appealed.

The central issue was whether an accused person found unable to undergo cross-examination could nevertheless remain fit to be tried, or whether the statutory procedure under the Criminal Procedure (Insanity) Act 1964 had to be followed.

1. Appeal allowed. The conviction could not stand because the trial continued to an ordinary jury verdict after the issue of fitness to plead had arisen and the judge had implicitly found that the appellant could no longer fully participate in the trial.
2. Fitness to plead was more accurately described as fitness to participate in the trial process. It could be determined at any stage before a verdict of acquittal. It could not be assessed by isolating one stage of the process. The capacity to be cross-examined formed part of the capacity to give evidence in one’s defence.
3. The Pritchard criteria, as extended in R v John M, included the ability to understand questions, apply one’s mind to answering them and convey answers intelligibly. A proper ruling required rigorous examination and careful analysis against those criteria. The judge’s provisional and later rulings were ambiguous and did not articulate that analysis.
4. Whether a mental condition merely made it undesirable for an accused to give evidence under section 35(1)(a) of the Criminal Justice and Public Order Act 1994, or instead made the accused unfit to participate, was fact-specific. The court could not retrospectively resolve that question on the incomplete examination of the psychiatric evidence. However, the judge’s implicit finding and his direction to the jury required the court to proceed on the basis that the condition was an absolute bar to cross-examination.
5. Once fitness had been raised and that finding made, section 4A of the Criminal Procedure (Insanity) Act 1964 prescribed the mandatory procedure. General case-management discretion could not displace it. The jury should have been prevented from returning a verdict other than an acquittal if the evidence already given did not establish that the appellant had done the act charged.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction: [2016] EWCA Crim 889.
• Southwark Crown Court — before His Honour Judge Grieve QC, the appellant was convicted on 27 November 2014 of being concerned in a money-laundering arrangement and was sentenced on 6 February 2015 to two years’ imprisonment suspended for 12 months.