Richard Brown v The Queen

A finding that a defendant is unfit to plead does not permanently bar a later trial. Once recovery is supported by up-to-date medical evidence, a further jury finding or formal judicial ruling is unnecessary where fitness is not a live issue.

Fresh evidence supporting diminished responsibility may be admitted on appeal where the interests of justice require it. Failure to raise the defence at trial is not an automatic bar, but ordinarily requires a reasonable and persuasive explanation. An evidential irregularity that caused no miscarriage of justice does not justify quashing a conviction. Pre-sentence custody should ordinarily receive full credit unless there is a particular reason otherwise.

Richard Brown v The Queen concerned a murder conviction in Jamaica. The appellant was convicted in the Home Circuit, Kingston, on 16 January 2003 and sentenced to life imprisonment with hard labour, subject to a minimum 25-year period before parole eligibility. The Court of Appeal of Jamaica dismissed his appeal against conviction and sentence on 11 March 2005.

The Privy Council granted leave after investigations raised concerns about the appellant’s mental health. The issues were whether an earlier finding of unfitness to plead permanently prevented a later trial, whether further procedural steps were required after recovery, whether evidence had been improperly admitted, whether fresh evidence supported diminished responsibility, and whether the sentence properly allowed for time in custody before sentence.

1. Disposition. The Board dismissed the appeal against conviction and allowed the appeal against sentence. The sentencing issue was remitted to the Court of Appeal for further consideration.
2. Fitness to plead. Section 25(1) of the Criminal Justice (Amendment) Act 1960 dealt with the practical consequences of a finding of unfitness. It did not permanently prevent arraignment and trial after the defendant recovered. The historical decision in R v Dyson (1831) supported that understanding. The appellant’s fitness had been reconsidered by up-to-date psychiatric evidence, which confirmed that he was fit to plead. As fitness was not a live issue at trial, neither a further jury finding nor a formal judicial ruling was required.
3. Admission of evidence. The Board was not persuaded that admission of the deceased’s deposition involved an irregularity. Counsel had challenged the eyewitness evidence, indicating that the appellant’s case had been put forward. In any event, any irregularity would not have caused a miscarriage of justice because the original witness statement was substantially to the same effect.
4. Diminished responsibility and fresh evidence. Following R v Erskine and Williams [2009] EWCA Crim 1425, [2010] 1 WLR 183, the Board treated admission of fresh evidence as a fact-specific exercise focused on the interests of justice. Failure to raise a defence at trial was not automatically decisive, but a reasonable and persuasive explanation would ordinarily be required where the defence could and should have been advanced. The appellant had consistently denied responsibility for the killing, and diminished responsibility would contradict that case. The psychiatric material was also inadequate to establish substantial impairment of responsibility at the time of the killing. He therefore failed to show either a viable defence or that a retrial would serve the interests of justice.
5. Sentence. The Court of Appeal’s direction that the sentence commence on a later date was wrong in light of Ali v Trinidad and Tobago [2005] UKPC 41, [2006] 1 WLR 269. Ajay Dookee v State of Mauritius [2012] UKPC 21 concerned a different situation involving a determinate sentence and different custodial conditions. In this case, full allowance should ordinarily be made for custody, including detention while unfit to plead, unless a particular reason justified otherwise. The appellant’s longstanding mental-health problems were also relevant personal mitigation.

• Privy Council. The appeal against conviction was dismissed. The appeal against sentence was allowed and remitted to the Court of Appeal of Jamaica for further consideration.
• Court of Appeal of Jamaica. The appellant’s appeal against conviction and sentence was dismissed on 11 March 2005.
• Home Circuit, Kingston. The appellant was convicted of murder on 16 January 2003 and sentenced to life imprisonment with hard labour, subject to a minimum 25-year period before parole eligibility.