Case No:
2015 03526 B4
Neutral Citation Number:
[2016] EWCA Crim 1844
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CROYDON
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
9 December 2016
Before:
LORD JUSTICE SIMON
MR JUSTICE SWEENEY
and
HH JUDGE AUBREY QC (sitting as a Judge of the Court of Appeal)
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Between:
The Queen
and
Osagie Ehi-Palmer
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Mr Mathew Sherratt
for the
Appellant
Mr Richard Hearnden
for the
Crown
Hearing date: 20 October 2016
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Judgment
Lord Justice Simon:
Introduction
1.
On 2
July 2015 in the Crown Court at Croydon (before HHJ Tanzer and a Jury) Osagie Ehi-Palmer was convicted (by a majority of 11.1) on a charge of attempted rape. On 20 August 2015 (at the same Court) he was sentenced to 5 years’ imprisonment.
2.
Leave to appeal against the conviction was referred to the Full Court by the Single Judge; and we grant leave.
3.
Although the grounds of appeal relate to what occurred during the latter stages of the trial, it is necessary to describe shortly the nature of the prosecution case and some of the evidence.
4.
At the material time the Appellant worked in a nightclub in London. At the end of July 2014, while working there, he and his manager met the complainant (MM) and her friend (MY), who were both Swedish nationals. They spent the evening together, got on well and ended up at the Appellant’s flat. MM and MY stayed the night as his guests without incident. Over the course of the next week, the Appellant and MM were in regular contact and occasionally met each other. On 5 August 2014, MM and MY returned to the nightclub, and during the course of the evening became highly intoxicated. The Appellant later took them both back to his flat.
5.
At about 6.00 am on the following morning, MM woke up. She was lying face down on the Appellant’s bed, with the Appellant leaning over her. She became hysterical and made accusations of rape. She and MY left the flat and she then made a 999 call.
6.
The Appellant was arrested and interviewed. He denied the allegation in its entirety. Intimate swabs were taken from him and MM. There was no semen in her vagina but traces of MM’s DNA were found on the shaft of his penis. He was re-interviewed but continued to deny that any sexual contact had taken place. Following charge, he provided a defence statement in which he said that he and MM had had sexual contact on the dancefloor of the nightclub.
7.
The prosecution case was that while they were together in his bedroom, the Appellant had attempted to rape MM while she was lying on the bed in a state of intoxication. The prosecution relied on (1) messages that he had sent to MM which were said to show his possessiveness and wish to advance what he hoped would become a sexual relationship; (2) MM’s evidence that she did not dance with the Appellant in the nightclub and therefore this could not explain the transfer of DNA; (3) the omission by the Appellant to mention that he had danced intimately with MM until he was confronted with the DNA evidence; (4) the content of the 999 call; and (5) the DNA evidence.
8.
The defence case was that the Appellant, a man of good character, had been called by MM and MY for help at the end of their night out because they were drunk; and that he had taken them to his flat as an act of hospitality. MM came into his room and fell asleep on his bed. When she began to talk in her sleep he leant over her and tapped her several times on the shoulder. She woke with a start and jumped to the wrong conclusion. He had done nothing wrong.
9.
Among the issues for the Jury was whether the finding of MM’s DNA on the Appellant’s penis was due to his inserting his finger into her vagina on the dance floor of the nightclub or as a result of him attempting to rape her whilst she lay on his bed; and whether the Appellant had tried to have sexual intercourse with MM while she slept or whether she had woken suddenly and come to a false conclusion.
The trial
10.
Early in the trial MM, who gave her evidence from behind a screen, told the Jury that she and her friend, MY, had come to London to enjoy themselves. She had targeted the Appellant as a way of getting free entry to clubs and free drinks while there. She said they messaged each other after the initial meeting, although these messages showed no more than a light-hearted and flippant relationship. She said that on the night in question she did not dance in the nightclub and that the last thing she remembered was sitting at a table in the nightclub. She had never had such a memory loss before.
11.
In cross-examination she said that no matter how drunk she was, she would never have allowed the Appellant to have touched her beneath her underwear. When she woke up, he was making sexual movements towards her. She was lying on her stomach with her face to the side. Her skirt had been pulled up and her knickers had been pulled down. The Appellant was lying on her back and she could hear him breathing. She did not know where his groin was and she could not feel anything in her vagina, but she felt scared and disorientated. She did not notice whether the Appellant was dressed or not. She had pushed him away and said, ‘What are you doing? Why are you raping me?’ He had told her that she was being paranoid and should calm down. She said that she was 100% sure that he was trying to rape her but she did not know how far he had got.
12.
The prosecution called a forensic scientist who described
a DNA profile matching that of MM on the Appellant’s penis. In her opinion it had been transferred through fluid, in other words via saliva or vaginal fluid rather than dry cells, but she was unable to say whether it was a primary transfer (by his penis touching her vagina) or secondary transfer (by touching her vagina and then touching his penis).
13.
It is necessary at this point to return to an event which took place shortly before the end of MM’s evidence; and, before doing so, it is important to note that it is common ground the Appellant had not shown any previous signs of mental disturbance.
14.
On Wednesday 24 June 2015, towards the end of MM’s evidence, a recording of her 999 call tape was played to the court. At this point the Appellant became hysterical, broke down in tears and became highly anxious, with the appearance of a panic attack. He was so distressed that the court had to rise and he was taken to the cells, where his counsel (Mr Sherratt) attempted to calm him. He was described lying on the floor at one point, screaming hysterically.
15.
On Thursday 25 June, in the absence of the Jury, Mr Sherratt raised a number of concerns with the Judge. The Appellant was worried: that the Jury selection was not random, that it was not MM who had given evidence from behind the screen, and that the recording of the 999 call was in fact a 911 call, using an American emergency call number. During this discussion the Appellant again became extremely anxious, and Mr Sherratt requested extra time to speak to him. The Judge gave appropriate reassurances to the Appellant; and there is no criticism of the way in which the Judge dealt with his concerns. However, this incident, following the hysterical outburst the day before, is relied on by Mr Sherratt as indicating evidence that something was wrong with the Appellant’s mental state.
16.
On Friday 26 June, a prison health care assistant (Ms Tanya Whittle) noted that the Appellant was, ‘medically fit for court appearance…no medical concerns raised at this time’. The court day was spent dealing with interviews and the prosecution then closed its case.
17.
On Monday 29 June, the Appellant began to give evidence in his defence. He said that when MM came to the nightclub on 5 August 2014, he ignored her as she was becoming jealous and he wanted to play things cool. Later in the evening he danced with her. They kissed for about 20 minutes and she touched his penis. He then touched her vagina for 5 minutes with his right hand. He said that she liked it. Later that night she called him and asked him to get her home. He met MM and MY and took them back to his flat (rather than their hostel) as they were so drunk. He denied doing anything improper. MM had come into his room as she wanted to smoke. She lay next to him fully clothed whilst he watched television and then fell asleep. After about an hour she started speaking Swedish in her sleep and he got up and tapped her on the shoulder three times. He asked her to wake up and, at this point, she started to shout. He told her to relax and asked her what was going on. She said that someone had touched her. He told the Jury that he had never lain on top of her, nor had he touched her skirt or knickers. When she got to the front door, she told him that he had tried to rape her, to which he replied, ‘Why would I do that when you were drunk?’
18.
No particular concerns were noted at the time as to his ability to give his evidence in chief. Counsel for the Prosecution (Mr Hearnden) told us that he seemed normal and composed, although Mr Sherratt thought that he was hesitant in his answers.
19.
In any event the main focus in this appeal was directed to the evidence he gave during the afternoon of Monday 29 June, while being cross-examined. The transcript shows that the initial stages of the cross-examination were unremarkable. The Appellant gave rational answers to the questions he was asked, describing how he had watched television while MM lay asleep on the bed and how he had woken her because she was mumbling in Swedish in her sleep. However, two recurrent themes began to emerge: first, his evidence that she had called a 911 number, and second his assertion that there was a tape which would reveal what occurred. The Appellant asked for ‘the tape’ and repeatedly asked for the Jury to hear ‘the tape’. He also went on to state ‘was there a camera in my room then?’ And later, ‘…can the Jury see the pictures please…was someone watching me in my room?’ He also said that there was a CCTV camera in his bedroom, ‘…I think they (police) may have been tracking me, they have been watching me for a long time’.
20.
Although it is clear from the transcript of the Appellant’s cross-examination that there are passages when he appeared entirely lucid, there are other passages which show that Mr Hearnden was exasperated by what he considered to be deliberately unresponsive and evasive answers referring to tapes and cameras. It is also apparent that the Judge, very properly, encouraged the Appellant to answer the questions he was being asked.
21.
The cross-examination was brought to close with the following exchange:
Judge Tanzer: I think you could probably leave it, Mr Hearnden.
Mr Hearnden: I did say I was going to call time on this farce.
Witness: I knew there was a camera in my room. I can tell there was a camera in my room.
Mr Hearnden: No further questions.
22.
There was a brief re-examination during which Mr Sherratt accepts that the Appellant understood, and coherently answered, the questions he was asked.
23.
On Tuesday 30 June 2015, the Appellant was admitted to the inpatient healthcare unit in HMP Highdown after observations of increasingly bizarre responses to auditory and visual hallucinations. The matter was raised with the Judge by Mr Sherratt and there was a discussion as to how the trial should proceed. Mr Sherratt referred to the Appellant’s evidence the previous day and submitted that there should be an assessment to see whether he was ‘under an impediment.’ He indicated that if a psychiatrist were to find that his client was mentally ill he would apply to discharge the Jury, while recognising that a psychiatric assessment might conclude that the Appellant was (as he expressed it) ‘effectively, putting it on’. Mr Hearnden accepted that there should be a request for a prompt psychiatric assessment, and the Judge agreed, while noting that there had been no indication of any prior psychiatric problem. The Jury were told that the Appellant was not well and were sent away for the day.
24.
The Court reconvened later that day in the absence of the Jury to consider information from HMP Highdown that no psychiatric report could be prepared before Thursday 2 July. In the light of this information and following submissions from counsel, the Judge ruled that the trial should continue in the Appellant’s absence.
25.
He directed himself by reference to the current edition of
Archbold
at §3-222 and the case of
R v. Jones (Anthony)
[2003] 1 AC 1
(HL), recognising that continuing a trial in the absence of a defendant was an exceptional course. He summarised the prosecution evidence, all of which the Appellant had heard, and noted that he had given evidence in his defence. His conclusion was that there was ‘no disadvantage to the defendant in not being present from now on,’ no risk of the Jury reaching an improper conclusion from his absence and a public interest in the trial proceeding. He also noted that a short adjournment would not necessarily help, since the Court had been informed that the Appellant could not be seen by a psychiatrist until Thursday at the earliest, and it was likely that there would be further delays while additional information was obtained and a report was prepared. In effect, the Judge concluded that an adjournment would have the effect of aborting the trial. He indicated that he was making ‘no finding whatsoever’ as to whether this was an endeavour by the Appellant to evade the consequence of the trial.
26.
On Wednesday 1 July 2015, the Court received information from the prison nursing staff that the Appellant had been admitted to the inpatient healthcare unit in the early hours of Tuesday having displayed a bizarre deterioration of his mental state: ‘He had been observed responding to unseen stimuli and auditory/visual hallucination. He will be urgently [seen] by our consultant psychiatrist tomorrow.’ Mr Sherratt repeated his concerns about this information.
27.
The trial continued in the Appellant’s absence. We were told that the Judge informed the Jury that the Appellant was still unwell and that they should not hold his absence against him.
28.
Mr Hearnden’s notes of his speech to the Jury show that he began by highlighting how bad the Appellant had performed when being cross-examined, describing it as, ‘So appalling it could only help the prosecution prove its case’. However, he then went on to add that the Jury should consider all the evidence they had heard and should not ‘place too much emphasis on the shortcomings of the [Appellant’s] testimony.’
29.
The Judge summed up the case to the Jury, but said nothing further about the Appellant’s absence. He did, however, make a further observation in the context of his direction on lies, see
R v. Lucas
[1981] QB 70
.
… lies of themselves are not evidence of guilt and that is because an innocent man may lie for a number of reasons. For example, to try and bolster a defence or out of panic or confusion, and you have seen this defendant suffer from an at least an alleged panic attack. You make up your own minds about that.
30.
The Jury retired at the conclusion of the summing up, during the afternoon of 1 July, and resumed their deliberations on the following morning, Thursday 2 July.
31.
By this time, the Appellant had been assessed by Dr Shriti Burgul (a locum consultant psychiatrist) attached to HMP Highdown. In a report (dated 2 July) she set out her findings that the Appellant appeared to be highly distressed and agitated. He was again observed responding to unseen stimuli, laughing inappropriately and shouting. He had flooded his cell, put his mattress on the floor and appeared to be incontinent of faeces. At §3 she set out her opinion and recommendations.
[The Appellant] appears to be suffering from a probable drug induced psychosis which will require urgent treatment with antipsychotic medication. Such treatment is likely to alleviate deterioration of his current mental state if he is able to comply with this.
He will require such treatment as in-patient due to both the nature and degree of his illness, his lack of insight and capacity, and his unpredictable and aggressive behaviour. We will therefore be requesting an urgent hospital transfer to his local Medium Secure Forensic in-patient unit via a s.47 MHA …
He is currently not fit to stand trial and not fit to plead.
32.
There was a discussion of this report between Counsel and the Judge, and Mr Sherratt applied again for the Jury to be discharged. The Judge refused the application, following which Mr Hearnden raised the possibility that the Jury might, exceptionally, receive the evidence of Dr Burgul’s ‘on the spot diagnosis’ notwithstanding their retirement. He referred to
R v.
Iqbal Khan
[2008] EWCA Crim 1112
. The Judge dismissed this suggestion on the grounds that the diagnosis was provisional, and related to his current condition rather than his condition at trial.
33.
Later that day, the Judge gave a majority direction and the Jury retired again at 1.13. At 2.27 the Judge received a note that the Jury could not reach either a unanimous or a majority verdict and did not think that they would be able to do so. Against the objection of Mr Sherratt, the Judge directed them to try to reach either a unanimous or a majority verdict. He did not give a
Watson
direction, see
R v. Watson
[1988] QB 690, with its concluding words: ‘If, unhappily, [ten of you] cannot reach agreement you must say so.’
34.
At 4.25 the jury returned the verdict of guilty.
Subsequent events
35.
On the following day, Friday 3 July 2015, the Appellant was observed by prison staff lying naked on his cell floor and responding to unseen stimuli; and the next day, he was reported to be lying on the floor of his cell, incontinent of urine and unresponsive. Urgent blood tests were taken which indicated signs of renal failure and he was immediately transferred to Epsom Hospital.
36.
On 5 July 2015, he was diagnosed with sepsis and renal failure, and treated with fluids and antibiotics. He was taken to an Intensive Care Unit as a medical emergency, and placed in a medically induced coma. His treating physicians questioned whether he might have taken an overdose of anti-depressant medication. It was not until 15 July 2015 that his condition had improved sufficiently for the sedation to be removed, and he was able to breathe spontaneously.
37.
His condition was reviewed again by Dr Burgul on 21 July 2015, when she prescribed sedative and antipsychotic medication. Dr Shubelade Smith (consultant forensic psychiatrist at River House Medium Secure Unit) stated in an email, ‘This really sounds like an organic/medical problem. This man was in renal failure in ITU and now presents with delirium. By definition this is not therefore psychosis.’
38.
On 27 July Dr Burgul carried out a further review on the Appellant’s return to HMP Highdown. She found his mental state to be stable, with ‘no evidence of any psychotic phenomena’. She further noted, ‘He admits to having used spice recently and states this was the first time he has tried this’. His limbs were stiff on examination and it was felt he was experiencing residual symptoms of his metabolic brain lesion. By 30 July Dr Burgul noted that there were no longer psychotic symptoms and set out her view that he had suffered from a drug induced psychosis.
39.
He was discharged from the prison health care unit on 31 July 2015; and it is common ground on this appeal that he no longer suffers from any symptoms of mental illness.
The medical evidence on the appeal
40.
We admitted and heard evidence under s.23 of the Criminal Appeal Act 1968 from two Consultant Forensic Psychiatrists: Dr Guy Hillman (called by the Appellant) and Dr Scott Mackenzie (called by the Prosecution). Each was well qualified, had seen the Appellant and had prepared reports for the assistance of the Court. There was a large measure of agreement between them. First, it was agreed that the Appellant had no history of contact with psychiatric services or of substance abuse before the summer of 2015; secondly, that he had suffered from an abnormal mental state from 24 to 29 June during the course of the trial, exhibiting symptoms of anxiety, odd behaviours and paranoid beliefs; thirdly, that thereafter (from 30 June) he suffered a marked deterioration in his mental and physical health which eventually led to him being placed in a medically induced coma. There were some issues on which they disagreed: the operative cause of his abnormal mental state, its effect and, in particular, his ability to participate in the trial.
The argument
41.
Although he developed a number of submissions, Mr Sherratt’s argument rested on three main and interlinked grounds.
42.
First, he argued that the Judge should have obtained a full psychiatric report in order to assess whether the Appellant was under a disability. The Judge had erred in giving undue weight to the likely delay and to the risk of losing the Jury over the Appellant’s right to a fair trial. Although Mr Sherratt accepted that the Judge had a discretion in the matter, he submitted that the Judge gave insufficient weight to the fact that the Appellant had not voluntarily absented himself, to the risk that the Jury might reach a false conclusion about the Appellant’s absence and to the possibility that he might have been under a disability when he gave evidence; and failed to undertake any enquiry as to what delay would have been incurred if the Jury were discharged.
43.
Secondly, Mr Sherratt submitted that the Appellant was wrongly deprived of the opportunity to adduce medical evidence to explain his symptoms to the Jury. Such evidence would have placed his behaviour in the witness box in its proper context.
44.
Thirdly, he submitted that, at least by 30 June (if not before) it had (or should have) become apparent that the Appellant could not make a proper defence, having regard to the
Pritchard
test, see
R v. Pritchard
(1836) Car. & P. 303 KB. At that stage the Judge should have withdrawn the case from the Jury and proceeded under the provisions of the Criminal Procedure (Insanity) Act 1964, as amended (‘the 1964 Act). In any event, the provisions of the 1964 Act should have been applied before the Jury returned their verdict. Mr Sherratt referred to and relied on the decisions of this Court in
R v. John M
[2003] EWCA Crim 3452
and
R v. Marcantonio and another
[2016] EWCA Crim 14
.
45.
For the Prosecution, Mr Hearnden argued that the Appellant had participated in the trial and completed his evidence without relevant incident. The Judge was entitled in the exercise of his discretion to decide (during the afternoon of 30 June) to continue the trial when it became apparent that no medical report would become available within a reasonable time. There was no unfairness to the Appellant and the conviction was safe.
Our conclusions
46.
As set out above, the first issue on which the psychiatrists disagreed was their view of the cause of the Appellant’s abnormal mental state. In our view this is now clear: at some point the Appellant, who had never previously exhibited any signs of mental disturbance, had used spice (a synthetic cannabinoid) while in prison. It was this that had caused the mental disturbance. This was the view of Dr Mackenzie and is supported by Dr Burgul’s initial opinion, as well as the Appellant’s later admission to her.
47.
The second issue involves an assessment of the drug’s effect. It is probable that the Appellant took the drugs during the course of the trial, and that his behaviour on 24 and 25 June was the initial reaction to taking them. We accept Dr Mackenzie’s opinion that, at this point, although his mental state was abnormal, and resulted in him acting oddly and expressing paranoid beliefs, this did not have a substantial impact on his ability to participate in the trial. The position became clearer (at least in retrospect) while he was giving evidence on 29 June. During his cross-examination he intermittently exhibited paranoid beliefs, although he did not lack insight into his situation. He was able to give evidence and participate in the trial and, except for the intermittent digressions while being cross-examined, exhibited few symptoms of psychosis.
48.
The third issue is whether (and, if so, the extent to which) he was able to participate in his trial thereafter. In agreement with both doctors, we have concluded that he was not fit to participate in his trial after 29 June.
49.
We turn then to how the matter was dealt with at the trial. Although, there had been incidents on 24 and 25 June which prefigured his breakdown, as we have noted, he appears to have been able to give a clear account during examination in chief and in re-examination. The Jury heard from him that he had not attempted to rape MM, that she had misinterpreted his actions and that the presence of her DNA on his body was explicable other than as a consequence of an attempt to rape her. Viewed overall his evidence was, for the most part, coherent, although there were the incoherent answers and digressions in cross-examination that we have noted.
50.
By 30 June his evidence had concluded; but there was now information which alerted the Court to the possibility that he would no longer be able to participate in his trial. In our view the initial view that a psychiatric report should be obtained was correct; and it was unfortunate that, when told of the possible delay in obtaining such a report, the Judge decided to continue with a trial. While we recognise the pressures of work in the Crown Court and the need to avoid keeping Juries waiting, the decision to seek a medical report was based on principle while the decision to proceed without one appears to have been based on expediency.
51.
Once a decision to continue had been made, in our judgment specific consideration should have been given as to what the Jury should be told about his absence, and whether an agreed fact could be placed before them with a view to explaining his absence.
52.
Mr Hearnden was entitled to make the points he did in the closing speech to the Jury on the basis of what he knew immediately after the cross-examination. However, in the light of the Prosecution support for the obtaining of a psychiatric report during the discussions in the morning of 30 June, it might have been prudent to have adopted a more cautious approach. The Judge’s comment to the Jury that the Appellant was ‘still unwell’ did not raise the possibility that the quality of his evidence on which the Prosecution had placed emphasis might be related to the reason for his non-attendance.
53.
In the course of 2 July, while the Jury was in retirement, Dr Burgul’s report became available. This plainly put in issue the Appellant’s ‘fitness to stand trial’ or perhaps more accurately his ‘fitness to participate in the trial,’ see
R v. Orr
[2016] EWCA Crim 889
, at [23].
54.
Where an issue as to fitness is raised the Judge is required to address the point, see s.4(4) of the Criminal Procedure (Insanity) Act 1964, with a requirement of careful case management, see Crim PR 25.10. When the issue is raised the Judge must consider whether to discharge the Jury and give directions for the determination of the issue, see s.4(5) of the 1964 Act. Section 4(6) provides that such a determination cannot be made except on the written or oral evidence of two or more registered practitioners, at least one of whom is duly approved.
55.
In
Marcantonio
(see above) the Court, having considered the
Pritchard
criteria as reinterpreted in
John M
, made clear at [7] that:
An assessment of whether a defendant has the capacity to participate effectively in legal proceedings should require the court to have regard to what that legal process will involve and what demands it will make on the defendant. It should be addressed not in the abstract but in the context of the particular case.
56.
We note that in
Taitt v. State of Trinidad and Tobago
[2012] UKPC 38
,
[2012] 1 WLR 3730
[16], Lord Hope of Craighead (giving the judgment of the Board), cited
R v. Robertson
[1968] 1WLR 1767 and
R v. Berry
(1977) 66 Cr. App. R. 156, in support of his observation that the fact that a person suffers from delusions or from a high degree of abnormality does not mean that he is not fit to be tried.
57.
The context in the present case was that the issue arose at short notice during a late stage of the trial, after the Appellant had given evidence. Dr Burgul’s opinion appears to have been based on a single observation on 2 July, without the benefit of any background information; and although the contents of her report justified her view that the Appellant was (at that point) unfit to participate in the trial, there was no other evidence from a registered medical practitioner.
58.
A similar situation arose in
R v.
Ghulam
[2010] 1 WLR 891
, where an application was made during the course of the summing up on the basis of a letter from a single registered practitioner specifically directed to the
Pritchard
criteria. Having set out the facts in that case the Court said this:
21. Applying those conclusions to the situation which the judge found himself, in our judgment the judge was, in the exercise of his discretion based on the evidence before him, entitled to consider whether or not the defendant was unfit to plead. He could not have made a determination that the defendant was indeed unfit to plead without the medical evidence of another doctor, and that doctor would have had to be an approved psychiatrist, as required by the Act. However, he was entitled to consider what he had observed as to the conduct of the defendant and his ability to defend himself at the trial. He was, in our judgment, entitled on that basis to consider whether or not he could accept the evidence put before him at the last stage of a single doctor.
22. Having found that his observations were inconsistent with those of the doctor, he was entitled, in those circumstances, implicitly to make a determination that the defendant was fit, and had been fit, to plead, and therefore to refuse to discharge the jury and to allow the trial to be completed. The matter was entirely for him in his discretion. Given the circumstances in which the application was made and the very strong evidence that he had seen that the defendant was indeed fit to plead, in our judgment he was entitled to decide as he did. It follows that the appeal is dismissed.
59.
In the circumstances in which he found himself, we have concluded that, in the exercise of his discretion and based on the evidence before him at the time, the Judge was entitled to refuse the application. Although there was material which indicated that the Appellant would be unfit to participate in the rest of the trial, it was raised very late (after the evidence had concluded) and was not supported by the required evidence.
60.
It follows that we reject Mr Sherratt’s third ground. We turn then to the first and second grounds which we can take together.
61.
Before considering these arguments, we think it important to bear in mind some of the observations in the speech of Lord Bingham of Cornhill in the case of
R v.
Jones (Anthony)
referred to above, with which the other members of the House of Lords agreed. In that case a judge of the Crown Court at Liverpool had concluded that the appellant had deliberately absented himself from the trial and ordered that the trial take place in his absence. In his summing-up the judge warned the jury not to hold the absence of the defendants against them. Lord Bingham set out a number of principles which applied in such a case. At [6] he stressed the important of what was both a right and an obligation of a defendant to attend his trial on indictment, while noting that:
… for many years problems have arisen in cases were, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine or intermittent illness of the defendant (as in
R v. Abrahams
(18950 21 VLR 343 and
R v. Howson
(1981) 74 Cr App R 172); or misbehaviour (as in
R v. Berry
(1897) 104 LT Jo 110 and
R v Browne
(1906) 70 JP 472
); or because the defendant has voluntarily absconded (as in
R v. Jones (Robert) (no.2)
[1972] 1 WLR 887 and
R v. Shaw (Elvis)
[1980] 1 WLR 1526. In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.
62.
In the final sentence Lord Bingham draws a clear distinction between a defendant suffering from an involuntary illness or incapacity, on the one hand, and a defendant who has made a voluntary decision not to be present.
63.
At [11] he referred to the difficulties faced by a defendant who does not attend his trial: no cross-examination, no evidence from defence witnesses and no speech to the jury on his behalf. Lord Bingham’s answer to the argument that such a process was unfair was that:
… one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.
64.
The distinction between a voluntary and involuntary absence is raised again in [13] and [15].
65.
In the present case, the Appellant did not have any of the disadvantages identified in [63] above. Although his absence was due to a developing psychosis, his condition was, as we have found, due to a voluntary decision to take drugs during the course of the trial. The position is similar to a defendant who (if he had the opportunity in prison) had consumed large quantities of alcohol and was suffering from its effects. Both voluntary acts might have the consequence that the defendant would not show himself to best advantage before the Jury, but neither would give him good cause to complain about it.
66.
Viewed in this light, Mr Sherratt’s complaint must be that the Appellant was wrongly deprived of an opportunity of putting the full picture before the Jury: that he was absent due to a mental condition caused by his consumption of drugs in the course of the trial.
67.
In our view to have imparted this information would not, on the facts of this case, have assisted the defence, and the Judge cannot be properly criticised for simply warning the Jury that the Appellant was still unwell and they should not hold this against him.
68.
The Judge’s reference to ‘an alleged panic attack’ during the
Lucas
direction on lies was unfortunate, at least in retrospect, although it may have been the result of something said in the course of the defence speech. However, we are not persuaded either that there was unfairness to the Appellant in the course of the trial or that the conviction is unsafe. There was abundant material, as we have noted at [7] above, upon which the Jury could be sure of his guilt.
69.
For these reasons, the appeal is dismissed.