R v David Wood

An accused who cannot give coherent and intelligible instructions, give evidence in his own defence, or properly follow proceedings because of cognitive impairment may be unfit to stand trial. Communication difficulties and the absence of an intermediary can aggravate the problem, but an intermediary cannot cure an underlying inability to give evidence or instruct lawyers.

Where medical evidence establishes disability and that the accused did the act charged, the statutory disposal options are limited. A supervision order cannot require secure residential treatment or be made without a willing supervising officer. Where no hospital order is suitable and a supervision order is unavailable or ineffective, the court may have no power other than to order an absolute discharge, even where public protection concerns remain.

The appellant was convicted by a jury at the Crown Court at Sheffield in January 2019 of arson, contrary to section 1(2) and (3) of the Criminal Damage Act 1971. He received an extended sentence. He later appealed out of time and obtained leave to rely on fresh psychiatric and neuropsychological evidence.

The medical evidence established that he had been unfit to stand trial because of severe cognitive impairment and communication difficulties. The appeal concerned the safety of the conviction, the effect of the absence of an intermediary, and the appropriate disposal if the conviction were quashed. The court also had to determine whether a hospital order or supervision order was available, or whether an absolute discharge was required.

The appeal was allowed. The conviction was quashed, findings were substituted that the appellant was under a disability and had done the act charged, and an absolute discharge was ordered.

1. Fitness to stand trial. Applying the Pritchard criteria and the guidance in R v M [2003] EWCA Crim 3452, the court found that the appellant might have understood the charge and been able to decide his plea, but his dysexecutive syndrome made him incapable of giving coherent and intelligible instructions or giving evidence in his own defence. It was also very doubtful that he could properly follow the proceedings. The absence of an intermediary exacerbated the situation, although an intermediary could not have overcome the underlying cognitive impairment. The conviction was therefore unsafe (paras [42]–[43]).
2. Substituted findings. Although the conviction was unsafe, the circumstantial evidence that the appellant deliberately started the fire was overwhelming. The court was sure that he had done the act charged. The requirements of section 6(1)(b) of the Criminal Appeal Act 1968 were satisfied.
3. Available disposals. Section 6(2) of the Criminal Appeal Act 1968 required the court to make a hospital order, supervision order or absolute discharge. A hospital order was unavailable because the medical evidence did not support it. The court noted that the separate absolute-discharge discretion in section 5(3A) of the Criminal Procedure (Insanity) Act 1964 was not replicated in section 6 of the 1968 Act.
4. Supervision order. The statutory scheme in Schedule 1A did not permit the court to require treatment in a secure residential setting. A residence requirement could not be used to bypass those express treatment limits. Further, the court could not make a supervision order unless the intended supervising officer was willing to undertake supervision. Neither the Probation Service nor the local authority was willing to do so, and the order would in any event have lacked effective enforcement mechanisms (paras [51]–[64]).
5. Final order. Despite continuing risks to the appellant and the public, the court had no power to make any other order. It therefore allowed the appeal, quashed the conviction and ordered an absolute discharge under section 6(2) of the Criminal Appeal Act 1968. No retrial was ordered.

• Court of Appeal (Criminal Division): Granted an extension of time, leave to appeal and leave under section 23 of the Criminal Appeal Act 1968 to rely on fresh evidence. Allowed the appeal, quashed the conviction, substituted findings of disability and commission of the act charged, and ordered an absolute discharge.
• Crown Court at Sheffield: Following a jury trial, convicted the appellant of arson in January 2019 and imposed an extended sentence in February 2019.