Ihenacho v London Borough of Croydon

Fresh evidence may be admitted on appeal where it is capable of belief, might afford a ground for allowing the appeal, would have been admissible at the original proceedings and there is a reasonable explanation for its earlier absence.

Fitness to plead requires sufficient intellect to understand the proceedings and the evidence so as to make a proper defence. A general ability to communicate about ordinary matters is insufficient. A delusional belief does not itself establish unfitness if the defendant can understand and give instructions. The court may therefore dismiss an appeal against confiscation where unfitness has not been proved on the balance of probabilities.

The appellant had been convicted of dishonestly making false benefit claims and furnishing a false tenancy agreement. Following those convictions, the Crown Court made a confiscation order on 5 September 2014 in her absence.

The appellant later developed, or was diagnosed with, a persistent delusional disorder involving the belief that her identity had been stolen. She appealed against the confiscation order and sought to adduce psychiatric evidence under section 23 of the Criminal Appeal Act 1968. She argued that she had been unfit to plead at the confiscation hearing. The respondent opposed admission of the evidence and contended that she had been fit. The central issues were whether the fresh evidence should be admitted and whether it established unfitness to plead.

1. Fresh evidence. The court admitted the psychiatric evidence under section 23(1) of the Criminal Appeal Act 1968. The evidence was capable of belief, might afford a ground for allowing the appeal, would have been admissible at the confiscation hearing and had not previously been available. The court distinguished the approach in Taitt v State of Trinidad and Tobago [2012] UKPC 38; [2012] 1 WLR 3730, which concerned a second appeal in the Privy Council rather than an application under section 23.
2. Fitness to plead. Applying R v Pritchard (1836) 7 C&P 303, the question was whether the appellant could understand the course of the proceedings and the relevant evidence sufficiently to make a proper defence. A general capacity to communicate about ordinary matters was insufficient. The merits of the defence were irrelevant, and a defendant could remain fit despite acting against her own interests because of a mental condition. The latter principle was illustrated by R v Robertson [1968] 1 WLR 1767.
3. The court gave little weight to the appellant’s ability to manage property and council-tax matters, because those tasks did not necessarily engage her delusional belief. However, the absence of psychiatric contact for the relevant period, the failure of her solicitors to raise unfitness in July 2014, her earlier ability to prepare a confiscation statement and make submissions in the Court of Appeal, and the nature of the confiscation issues all pointed towards fitness. The appellant had not proved unfitness on the balance of probabilities.
4. The appeal was dismissed. The court did not decide the separate issues concerning the assumptions under section 10 of the Proceeds of Crime Act 2002 or the court’s powers under section 32 of that Act. It also left open whether prosecution costs could constitute loss and damage for compensation purposes under the relevant sentencing legislation.

• Court of Appeal (Criminal Division) — The court admitted fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968 but dismissed the appeal against the confiscation order: [2021] EWCA Crim 798.
• Croydon Crown Court — His Honour Judge Gold QC made a confiscation order on 5 September 2014 in the sum of £283,214.90, including compensation.