Court of Appeal: Unfit to Plead and Diminished Responsibility
/2009, Volume 73/Issue 3, June/Case Notes/Court of Appeal: Unfit to Plead and Diminished Responsibility – JCL 73 (196)
Journal of Criminal Law
JCL 73 (196)
1 June 2009
Court of Appeal: Unfit to Plead and Diminished Responsibility
R v Moyle (Peter Geoffrey) [2008] EWCA Crim 3059
Laura Madhloom
© Vathek Publishing, 2009
Keywords Murder; Manslaughter; Diminished responsibility; Fitness to plead; Fresh evidence
The victim (B), aged 67, was knocked to the ground outside a public house and repeatedly kicked by the appellant (M), who suffered from paranoid schizophrenia. B sustained serious head injuries which caused his death. The issues for the jury were, whether M had caused the injury from which B died, whether he had intended either to kill B or cause him really serious injury and, if so, whether he had been provoked by B to act as he did. M was subsequently convicted of murder and appealed against his conviction on the grounds that he was unfit to plead at the time of the trial. It was further submitted that, if fit to plead, he was, at the time of the alleged offence, suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts, by virtue of the Homicide Act 1957, s. 2. Neither fitness to plead or diminished responsibility were raised at the trial.
Held, appeal allowed in part. The court did not accept that M’s medical condition so impaired his ability to communicate with his legal advisers or understand proceedings. An analysis of his conduct at the time of the trial did not, when read with medical evidence, demonstrate that he was unfit to plead, as defined by law. M was able to instruct his lawyers, understand proceedings and give evidence, notwithstanding his delusions.
With regard to the defence of diminished responsibility, there was strong medical evidence to show that M had been suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts. M’s decisions at the time of trial were affected by the illness itself; the sense of attack on his personal integrity leading to an unwillingness to disclose the extent of his health problems and the fear of being returned to hospital. According to the court, there could be no suggestion that M was holding back on a defence of diminished responsibility for tactical reasons connected with his trial. Consequently, the conviction for murder was quashed and substituted with a conviction for manslaughter on the ground of diminished responsibility. A hospital order combined with a restriction order, without limit of time, was imposed.
Commentary
Fitness to plead
In deciding whether M was fit to plead, the court confirmed that there was no link between unfitness to plead and a person whose case comes within s. 2 of the Homicide Act 1957, by reason of diminished responsibility. The court directed that the analysis must begin with the fundamental principle that a defendant must be tried for and convicted of an offence before a custodial order is made. The court stated that each case depends on its own facts but delusions as to the court’s powers of sentence, or as to the evil influences which are thought to be present in the proceedings, do not necessarily lead to the conclusion that a person is unable to give instructions and to understand the proceedings.
In this case, a medical report had been obtained from a consultant psychiatrist prior to the trial. According to the medical report, M’s responsibility for his actions had been impaired by illness but the impairment had not been substantial, and therefore M was fit to plead. However, the medical report recommended that M’s fitness to plead be reassessed nearer the time of trial, on the basis that there had been deterioration in M’s mental state. This recommendation was not acted upon by the prosecution. It is submitted that such a report may have provided evidence in relation to M’s fitness to plead at the time of his trial.
In determining whether M was fit to plead, the court applied the test established in R v Pritchard (1836) 7 C & P 303:
There are three points to be enquired into: first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence—to know that he might challenge any of you [the jury] to whom he may object—and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. (at [16])
The Pritchard test was approved in R v Padola (1959) 43 Cr App R 220 and R v Robertson (1968) 52 Cr App R 690. More recently, Keene LJ, in R v M [2003] EWCA Crim 3452, stated that these authorities ‘clearly establish the law on this topic in this jurisdiction’ (at [31]).
Although the court applied the test in Pritchard, it was not minded to follow the opinion of the medical experts presented during the appeal in relation to fitness to plead. This evidence asserted that M ‘lacked the capacity to be properly defended and that he was unfit to plead’ (at [30]). Furthermore, the medical evidence contended that M:
… did not trust his own solicitor and he could not see how he could have a fair trial. Because of his delusions, his own descriptions of the index offence has changed over time. It has always been in disturbing delusional terms, about how the victim died. It was either the Queen of Sheba … who killed the victim or it was somebody else or some other spirits. His account often changed over time. Based on that I wonder if he was, at the time, in the state of mind where he could actually instruct his counsel. (at [24])
It is submitted that in determining a defendant’s fitness to plead, medical evidence relating to delusional behaviour should be taken into account in conjunction with the Pritchard test. The court acknowledged that M’s health problems affected his attitude to other people, including his behaviour generally, and could have resulted in M being distracted during the trial. However, the court concluded that M’s mental condition did not so impair his ability to communicate with his legal advisers or understand proceedings, notwithstanding his delusions. Therefore, he was fit to plead, at the time of his trial.
The difficulty in determining whether a defendant is fit to plead has been the subject of academic debate (see R. Grubin, ‘What Constitutes Fitness to Plead?'[1993] Crim LR 748 and L. Scott-Moncrieff and G. Vassall-Adams, ‘Yawning Gap’, Counsel, October 2006). The court’s decision in this case highlights the inadequacy of the Pritchard test in protecting defendants suffering from a mental illness which manifests itself by delusional behaviour. Despite the fact that a defendant can give instructions and have ‘sufficient intellect’ to understand proceedings, his delusional behaviour may, nevertheless, impact on the ability to make decisions which are in his best interests.
Diminished responsibility
The defence of diminished responsibility was not run at trial. According to the court, in such circumstances, the general principle to be applied is found in R v Ahluwalia (1993) 96 Cr App R 133:
Ordinarily, of course, any available defences should be advanced at trial … It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence [diminished responsibility] to be raised for the first time here if the option had been exercised at trial not to pursue it. (at [42])
Applying the above principle, evidence of diminished responsibility was not permitted to be adduced, on appeal, in R v Latus [2006] EWCA Crim 3187 where the defendant had pleaded not guilty on the basis that there was insufficient evidence to convict him of murder. The court held that he had made a deliberate tactical decision not to rely on diminished responsibility at his trial. In R v Neaven [2006] EWCA Crim 955, on the other hand, the court upheld the importance of the principles in favour of one trial, but accepted that there may be cases where it is in the interests of justice to admit evidence of mental illness. Similar to Neaven, M’s decisions at the time of trial were affected by the illness itself; the sense of attack on his personal integrity leading to an unwillingness to disclose the extent of his health problems. Evidence presented during the appeal stated that at the time of trial M, having had experience of hospital, did not want to be made subject to a hospital order. Therefore, there could be no suggestion that M was holding back on a defence of diminished responsibility for tactical reasons connected with his trial. As a result, M’s conviction for murder was quashed and a conviction for manslaughter on the ground of diminished responsibility was substituted.
The court did not address whether the decision, to permit a defence not adduced at trial, can be applied to other defences. It is submitted that the principle applied in Ahluwalia should only be permitted in relation to diminished responsibility. This argument is based on the fact that it would be difficult for defendants to conceal defences such as duress, intoxication, provocation or self-defence because such defences would form part of the facts of the case. In addition, no guidance was provided by the court in relation to the definition of ‘tactical’. It is hard to envisage a defence advocate advising a client to plead guilty and rely on diminished responsibility when there appeared to be insufficient evidence to convict the defendant of murder, as illustrated by the case of Latus. In sum, defence advocates are advised to consider the defence of diminished responsibility where a defendant displays signs of mental illness, in order to avoid an outcome similar to Latus.