West Law Report

If one defendant becomes ill

Posted in Times Law Report by mrkooenglish on October 19, 2008

From The Times
October 8, 2008
If one defendant becomes ill
Court of Appeal

Published October 8, 2008

Regina v B and Others

Before Lord Justice Toulson, Mr Justice Andrew Smith and Mr Justice Bean

Judgment August 15, 2008

Where one of several defendants in the same criminal proceedings became mentally unfit to stand trial before a jury had been empanelled, there was nothing in principle to prevent the jury subsequently hearing the trial of all the defendants, although in the case of the unfit defendant the jury would now be looking only to whether he had committed the actus reus of the relevant offence.

The Court of Appeal, Criminal Division, so held in a reserved judgment, when allowing, in part, an interlocutory appeal by the prosecution from Judge John Boggis, QC, in South-ampton Crown Court, before a jury had been empanelled to try a case involving numerous charges of sexual offences against several defendants, B, W, S, H, and RW, that, in light of one defendant’s unfitness to stand trial through mental illness, and another’s as a result of a stroke, the trial of the several defendants could no longer be heard by a single jury and that separate trials should take place.

Mr David Bartlett and Mr David Reid for the prosecution; Mr Charles Ward Jackson for S; Mr Chris Stopa, assigned by the Registrar of Criminal Appeals, for H; Mr Antony Dunkels, similarly assigned, for RW; B and W were not represented.

LORD JUSTICE TOULSON, giving the judgment of the court, said that the first question was whether the relevant ruling had occurred within a preparatory hearing, such that the Court of Appeal would have jurisdiction to hear the appeal.

Having had regard to, inter alia, In re Kanaris ([2003] 1 WLR 443), the conclusion was that the judge had been entitled to hold a preparatory hearing where the issue concerned whether the trial of the other fit defendants could continue as scheduled and the matter was not merely focused on the trial of a single supposedly unfit defendant. Since the other applicable criteria as to preparatory hearings had been met the Court of Appeal had jurisdiction.

On the substantive matter, the issue was a matter of some academic controversy and novelty, but the judge had erred in holding that it was inescapable that separate trials should be held.

Where one of several defendants became unfit after a jury had been empanelled, it would be possible for the same jury to consider in the case of that defendant whether he had committed the actus reus, although the question of guilt would now be removed.

A fortiori, on the instant facts, a single jury once empanelled could in principle proceed to consider whether the alleged principal offender had committed the actus reus while looking, in the case of other fit defendants, to both actus reus and mens rea.

Since the judge had erred in principle it was necessary to revisit the question whether that course should be permitted on the particular facts. There were four interests to be looked at, those of: (i) the unfit defendant; (ii) the fit defendants; (iii) the witnesses; and (iv) the public.

The conclusion differed in the case of the two unfit defendants: for one the trial could proceed before the same jury as that considering the other fit defendants’ cases, but the jury would look only to the actus reus in his case. In the case of the other unfit defendant there was no need to rescind the order for separate trials.

Solicitors: Crown Prosecution Service, Eastleigh; Hayes Law, Eastleigh; Wells Burcombe, St Albans.

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