From Mental Health Law Online
CRIME— Plea — Fitness to plead — Two among several defendants found unfit to plead — Jury yet to be empanelled — Judge finding single jury incapable in principle of hearing case against fit and unfit defendants together — Whether such conclusion correct. Where one of several defendants in the same criminal proceedings became unfit to stand trial before a jury had been empanelled there was nothing in principle to prevent a single empanelled jury subsequently proceeding to hear the trial of all the defendants, although in the case of the unfit defendant the jury would now be looking to the question whether he had committed the actus reus of the relevant offence.
The Court of Appeal (Criminal Division) so held when allowing, in part, the interlocutory appeal of the Crown from the decision of a judge, sitting in the Crown Court before a jury had been empanelled to try a case involving numerous charges of sexual offences against several defendants, that, in light of the unfitness to stand trial of the principal defendant (through mental illness) and of another defendant (as a result of a stroke), the scheduled trial of the several defendants could no longer be heard by a single jury and that it was “inescapable” that separate trials should take place.
TOULSON LJ, 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, inter alia, to In re Kanaris  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 focussed on the trial of a single supposedly unfit defendant; and since the other applicable criteria as to preparatory hearings had been met the Court of Appeal had jurisdiction. On the substantive matter, the issue before the court 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; and 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 the principal defendant the trial could proceed before the same jury as that considering the fit defendants’ cases, but the jury would look to the actus reus in his case; however, in the case of the other unfit defendant there was no need to rescind the order for separate trials.
R v B and others;  WLR (D) 296
CA: Toulson LJ, Andrew Smith and Bean JJ: 15 August 2008
Appearances: David Bartlett and David Reid (Crown Prosecution Service, Dorset) for the Crown; Charles Ward Jackson (Hayes Law, Eastleigh) or the defendant S; Chris Stopa (Registrar of Criminal Appeals) for the defendant H; Antony Dunkels (Registrar of Criminal Appeals) for the defendant RW.
Reported by: Matthew Brotherton, barrister