Choudhuri, R v

Fitness to plead is assessed by reference to a defendant’s capabilities in the particular proceedings. The test is indivisible. A defendant is unfit if unable to perform any required function, but a retrospective psychiatric diagnosis does not itself establish unfitness. Where the defence raises the issue, it bears the burden on the balance of probabilities.

Fresh psychiatric evidence will not render convictions unsafe unless it provides a properly arguable connection between the condition relied on and the mental element of each offence. Psychosis, including paranoid schizophrenia, does not without more show incapacity to form criminal intent. Contemporaneous evidence of the defendant’s functioning, legal representation and trial participation may decisively outweigh later speculative reconstruction.

The applicant, a doctor, was unanimously convicted at Nottingham Crown Court on 12 September 2013 of fraud and two offences of perverting the course of public justice. The fraud concerned a wallet containing substantial cash. The later offences concerned a false communication to a prosecution witness and an attempt to procure a false alibi.

More than three years later, he sought an extension of 1,085 days to apply for leave to appeal. He also sought to adduce psychiatric evidence under section 23 of the Criminal Appeal Act 1968. The evidence suggested that he had developed paranoid schizophrenia and raised concerns about his fitness for trial and capacity to form the requisite intent.

The Crown relied on contemporaneous records, the evidence of the applicant’s experienced trial representatives, and a psychiatrist instructed for the appeal. The central issues were whether the applicant had been unfit to stand trial in 2013 and whether any psychiatric condition undermined the mens rea for the three offences.

1. The applications were refused. The court was satisfied that the convictions were safe and that it was not properly arguable that they were unsafe. It therefore refused leave to appeal, the extension of time and the application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968.

2. The applicable fitness test was that derived from R v Pritchard (1836) 7 C & P 303, expressed for modern proceedings in R v M (John) [2003] EWCA Crim 3452 and explained in R v Marcantonio [2016] EWCA Crim 14. Fitness must be assessed in the context of the particular trial. The defendant must be able to perform each required function. Where, as here, the defence raises unfitness, it bears the burden of proving it on the balance of probabilities.

3. The retrospective opinions of Dr Ho and Dr Deo did not establish, or come close to establishing, unfitness. Their concerns were qualified and did not identify an inability to meet the legal criteria. The court preferred the contemporaneous material, the evidence of trial counsel and solicitor, the applicant’s conduct of his defence and trial evidence, and Dr Cumming’s opinion that the applicant could understand the charges, plead, instruct lawyers, follow the proceedings and give evidence. The caution in R v Erskine [2009] EWCA Crim 1425 applied with particular force.

4. The psychiatric evidence also failed to establish a nexus between any psychosis and the mental element of each offence. The prosecution case required dishonesty and knowledge for fraud, and intention to pervert the course of justice for the other counts. Even assuming that the applicant believed himself innocent of the fraud, that did not show an incapacity to intend later acts designed to interfere with the criminal process. The homicide authorities, including R v Blackman [2017] EWCA Crim 190 and R v Challen [2019] EWCA Crim 916, did not assist because diminished responsibility is a partial defence confined to murder.

5. The Crown’s application for costs under section 18 of the Prosecution of Offences Act 1985 was not determined at the hearing. The court directed written submissions and evidence on the applicant’s means.

• Court of Appeal (Criminal Division): Refused the applicant’s belated application for leave to appeal against conviction, his application for an extension of time, and his application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968.
• Crown Court at Nottingham: On 12 September 2013, the applicant was unanimously convicted of fraud and two offences of perverting the course of public justice. He received concurrent sentences totalling 30 months’ imprisonment.