McEwan, R. v

Factual and Procedural Background

The Appellant applied for extensions of time, permission to appeal, and admission of fresh evidence concerning six convictions entered in 2016 and 2017. She had already served the resulting sentences. [1][2]

The Appellant was later found unfit to plead in separate proceedings and is detained under a restricted Hospital Order. Two consultant forensic psychiatrists concluded that she had been unfit to plead when the earlier guilty pleas were entered. [3][4][5][6]

The applications were referred to the Full Court. The Crown did not oppose them and ultimately did not seek a retrial. [1][7][8][9]

Legal Issues Presented

1. Whether the Appellant should receive permission to appeal out of time and rely on fresh psychiatric evidence. [2][10]
2. Whether convictions based on guilty pleas entered while the Appellant was unfit to plead should be quashed or replaced by findings under section 6 of the Criminal Appeal Act 1968. [7][11][12]
3. Whether a retrial would serve any public interest. [8][9]

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that her guilty pleas should be vacated and the resulting convictions quashed because she had been unfit to plead when the pleas were entered. [13][7]
• She opposed an order under section 6 of the Criminal Appeal Act 1968, arguing that the pleas could not properly establish that she had committed the relevant acts. [11][14]

Crown's Position

• The Crown accepted the psychiatric evidence and did not oppose the substantive appeals. [13][7]
• The Crown initially sought a section 6 order but later withdrew that position, accepting that the convictions should be quashed. [7][12]
• The Crown determined that it would not seek a retrial. [8][9]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court accepted the unchallenged evidence of the two psychiatrists that the Appellant had been unfit to plead in 2016 and 2017. This removed the need to determine whether her waiver of legal professional privilege was valid. [5][6][13]

The Court considered section 6 of the Criminal Appeal Act 1968. Although that provision can allow a conviction to be replaced by a finding that an accused was under a disability and committed the relevant act, the Court held that such a finding would require a fact-finding exercise. [7][11][12]

Here, there was no proper evidential basis for determining whether the Appellant had committed the acts, apart from guilty pleas entered when she was unfit to plead. The Court of Appeal was also not the appropriate forum to resolve disputed facts at first instance. [14][12]

The Court further held that a section 6 order could not properly be made by agreement because any instructions accepting such an order would come from a person found unfit to plead. [12]

Because the Crown would not seek a retrial, and because the Appellant was already subject to a Hospital Order, the Court concluded that a retrial would serve no public interest. [8][9]

Holding and Implications

Appeals allowed; convictions quashed. The Court granted permission to appeal out of time, allowed the revised grounds of appeal and admitted the psychiatric reports as fresh evidence. [10][16]

The sentences imposed for the quashed convictions fell away, although they had already been served. The Appellant remains subject to the existing Hospital Order. [17]

The Magistrates' Court matters were left for appeal to the Crown Court because the Court of Appeal had no jurisdiction over them; the Crown indicated that it would not oppose those appeals. [18][19]

No broader implication was identified in the opinion, and no new precedent was set.