R v Roberts

Factual and Procedural Background

On 15 February 2016, in the Worcester Crown Court, the Appellant was found unfit to be tried under section 4 of the Criminal Procedure (Insanity) Act 1964. Subsequently, at a hearing on 18 February 2016, a jury found under section 4A of the 1964 Act that the Appellant had done the acts charged in relation to two offences of meeting a child following sexual grooming under section 15 of the Sexual Offences Act 2003. The Appellant was sentenced to a hospital order under section 37 of the Mental Health Act 1984, without a restriction order under section 41, and a Sexual Harm Prevention Order was imposed.

Approximately nine months after the time limit, the Appellant, acting in person and from a psychiatric hospital, applied for leave to appeal the findings and sentence, bail, to adduce further evidence, and for a representation order. These applications were refused by a Single Judge.

The Appellant then sought to renew the application to the Full Court. Due to procedural complexities related to the Appellant acting in person despite being found unfit, counsel was appointed by the Registrar to represent the Appellant’s interests. Counsel and the Crown’s representative appeared before the Court, assisted by an amicus curiae, who provided detailed submissions on procedural issues.

At the hearing’s conclusion, the Court was satisfied that there were no substantive grounds of appeal realistically arguable and refused the renewed application, reserving reasons to reflect on procedural points raised by the case.

The factual background involves the Appellant’s conduct towards three young girls. Around Christmas 2003, the Appellant visited the family of a young girl (referred to as IN) in Harwich, where he had lived previously. His interactions made IN uncomfortable, and contact persisted over subsequent years, including visits, gifts, and communications. Photographs and a pseudo photograph involving IN were found on the Appellant’s computer, although the charge related to the pseudo photograph was withdrawn as IN was not under 16 at the relevant time.

In August 2014, the Appellant approached two other girls (KL and SB), both aged 13, in a public library in Worcester. The girls described the Appellant’s behaviour as inappropriately familiar, including references to videos of abuse. They rejected his approaches and later complained to the police. These incidents formed Counts 2 and 3 of the indictment.

The prosecution case relied on the evidence of IN and her step-father, photographs and related materials found on the Appellant’s computer, evidence from KL and SB, and social media correspondence. Items found at the Appellant’s home included personal effects relating to school-age girls.

Psychiatric evidence established that the Appellant suffered from paranoid schizophrenia and some autistic spectrum disorder, rendering him unfit to plead or stand trial. The Court accepted this and appointed counsel to represent the Appellant at the section 4A hearing, which was not a criminal trial but a determination by jury whether the Appellant had done the acts charged. The jury found that he had done so in relation to KL and SB.

The Appellant’s grounds of appeal, prepared personally, were extensive and repetitive, reflecting his delusional state. The Single Judge found no merit in the grounds and upheld the sentence and findings. Counsel appointed to the Appellant at the appeal stage did not support most grounds except one concerning the admissibility of certain evidence admitted as bad character evidence after Count 1 was withdrawn.

Legal Issues Presented

1. Whether an individual found unfit to be tried under section 4 of the Criminal Procedure (Insanity) Act 1964 is competent to appeal in person against that ruling or any subsequent ruling under section 4A.
2. The proper procedure for appeals arising from section 4 and section 4A determinations, including the role and authority of counsel appointed to represent an unfit accused in pursuing appeals.
3. The admissibility and relevance of evidence relating to bad character in section 4A proceedings, especially when the accused cannot meaningfully instruct counsel to challenge such evidence.
4. The appropriate handling of waiver of privilege regarding communications between the unfit accused and appointed counsel in the context of appeals.
5. The funding and costs arrangements for legal representation in appeals arising from section 4 and 4A determinations.

Arguments of the Parties

Appellant's Arguments

• The Appellant, acting in person, advanced numerous grounds of appeal challenging the findings and sentence, including criticisms of the psychiatric assessments, the evidence against him, and the conduct of counsel.
• He contended that certain evidence, particularly relating to IN and photographs admitted as bad character evidence after Count 1 was withdrawn, should have been excluded or the jury discharged.
• The Appellant criticized counsel for failing to pursue various points and alleged incompetence in agreeing to the admission of certain evidence.

Appointed Counsel's Arguments

• Counsel did not support most of the Appellant’s grounds of appeal, acknowledging the delusional nature of many points.
• She pursued the argument that evidence admitted as bad character evidence under section 101(1)(d) of the Criminal Justice Act 2003, after the withdrawal of Count 1, should have been excluded under section 101(3) or section 78 of the Police and Criminal Evidence Act 1984.
• She distinguished this case from precedent involving previous convictions, arguing that the Appellant’s inability to instruct counsel meaningfully placed him at a disadvantage regarding this evidence.

Crown's Arguments

• The Crown submitted that the evidence in question was properly admissible as evidence of reprehensible conduct and relevant to the charges before the jury.
• They argued that the admission of the photographs and related evidence was necessary and that the Appellant’s possession of such material was undisputed.
• The Crown contended that any disadvantage due to the Appellant’s incapacity is inherent in section 4A proceedings and does not invalidate the admission of such evidence.
• They rejected the suggestion of incompetence by trial counsel, emphasizing the professional judgment exercised in presenting the defence.

Amicus Curiae's Submissions

• Provided detailed submissions on procedural complexities arising from appeals by persons found unfit to plead and the role of appointed counsel in such appeals.
• Addressed the issue of privilege in communications between the unfit accused and counsel appointed to represent them.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory framework governing fitness to plead and the special nature of section 4 and 4A proceedings, noting that these are not criminal trials and do not result in convictions. The Court emphasised that an accused found unfit to plead cannot be competent to appeal in person, given the judicial finding of incapacity supported by psychiatric evidence.

The Court reasoned that the right to appeal under section 15 of the Criminal Appeal Act 1968 must be exercised by counsel appointed by the court to represent the unfit accused. Such counsel has a professional obligation to assess and pursue any arguable grounds of appeal, independent of the accused’s instructions, which may be distorted by mental incapacity.

The Court rejected the Appellant’s criticisms of counsel’s conduct in admitting evidence as bad character evidence, finding that the evidence was relevant, properly admitted, and that counsel acted reasonably and in the Appellant’s best interests. The Court noted the inherent difficulties in section 4A proceedings where the accused cannot instruct counsel meaningfully.

Regarding procedural issues, the Court set out a recommended approach for handling appeals by unfit accused, including the appointment of fresh counsel if necessary, judicial oversight by the Single Judge, and the proper administrative handling of applications to ensure fairness and justice.

The Court also addressed the issue of privilege, concluding that communications between the unfit accused and appointed counsel are privileged, but the accused cannot personally waive privilege. The decision to waive or maintain privilege rests with the appointed representative acting in the accused’s best interests.

Finally, the Court considered legal costs and representation orders, concluding that legal aid representation orders are generally inappropriate in such appeals, which should be funded out of central funds. The Court highlighted the need for coherent rules governing costs and procedural aspects of these appeals.

Holding and Implications

The Court REFUSED the Appellant’s renewed application for leave to appeal against the findings and sentence under sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964.

The direct effect is that the Appellant’s conviction and sentence remain undisturbed. The Court confirmed that no arguable grounds of appeal exist in this case. The decision clarifies procedural principles regarding appeals by persons found unfit to plead, the role of appointed counsel in pursuing such appeals, and the handling of evidence and privilege in this context.

No new precedent was set beyond the application and clarification of existing statutory provisions and case law. The Court recommended consideration by the Criminal Procedure Rules Committee of introducing specific procedural rules to govern appeals arising from section 4 and 4A determinations to address current gaps and ensure consistent practice.