R v Holloway [2016] EWCA Crim 2175, [2016] MHLO 57

"The applicant was charged with attempted murder and wounding with intent. Two consultant psychiatrists decided that he was fit to stand trial. He was initially represented by solicitors and counsel but decided to dispense with his legal representation and represent himself. ... Subsequently, the judge decided to appoint counsel, a Mr David Malone, to assist the court and the applicant with legal issues. ... Ms Tayo asserts that the judge should have refused to allow the applicant to represent himself. She conceded, as she must, that he had been deemed fit to plead and stand trial and in principle had a right to defend himself but she maintained that the judge was obliged to force legal representation on him because of the nature and extent of his mental illness. ... Our conclusion on ground 1 can be stated shortly. This applicant had been certified fit to plead. The judge had no power to force representation on him and there was no basis in fact or law for staying the proceedings. ... It is clear that a defendant who is fit to stand trial cannot dismiss his legal representatives, insist on representing himself and then come to this court claiming he should not have been allowed to represent himself. ... The circumstances in which an advocate is appointed are very restricted. A memorandum dated 19 December 2001 agreed between the then Attorney General and Lord Chief Justice states in clear terms that an amicus will not be appointed for the purposes of cross‑examination in criminal trials and they will not be appointed 'simply because a defendant in criminal proceedings refuses representation'. Her Majesty's Attorney may consider appointing a special advocate in the Crown Court but only to perform a very limited role in relation to disclosure of sensitive documents. Mr Little invited us to note that in such a situation, it is not the court who appoints the advocate but the Attorney and the advocate does not act on behalf of an accused in cross‑examining witnesses or presenting arguments before a jury. ... It is now accepted that a court has an inherent power (and possibly a power under the Criminal Procedure Rules) to appoint an intermediary to ensure the effective participation of a vulnerable defendant in a trial. In this case, however, an intermediary was not necessary. HHJ Lyons, with the best of intentions, purported to appoint an amicus 'to assist the court' who in truth was appointed to act as a defence advocate and adviser. We see considerable force in Mr Little's submissions that, save where statute provides, there is no power to appoint an advocate in these circumstances to perform such a role. Further, there is no need for any such power. The court now has ample powers to ensure a fair trial without resorting to appointing a defence advocate where legal representation has been refused. Accordingly, we can find no basis for the appointment of Mr Malone, as helpful as he undoubtedly was to the court and to the applicant. Through no fault of his, the boundaries of his role became somewhat blurred. He began as something akin to an amicus but he argued points with the prosecution on the applicant's behalf, explained to the applicant the effect of the judge's rulings and he cross-examined witnesses. On at least one occasion he was referred to by the judge as 'your counsel' or 'your barrister'. On any view, he was not the applicant's advocate. The applicant had dispensed with the services of his advocate and his solicitors."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Court of Appeal

Regina v Holloway (Adrian)

[2016] EWCA Crim 2175

Hallett LJ , Sweeney , McGowan JJ

Crime — Practice — Representation — Defendant diagnosed with schizophrenia but considered fit to stand trial — Defendant dispensing with legal representation — Judge purporting to appoint amicus to assist court and defendant — Whether judge having power to do so

The defendant had a long history of mental health problems which his doctors considered justified a diagnosis of paranoid schizophrenia and detention under section 3 of the Mental Health Act 1973. The defendant did not agree and he believed there were a number of conspiracies operating against him including conspiracies by his lawyers and his doctors. The defendant allegedly attacked one of those doctors, the psychiatrist responsible for his care in 2012, with a homemade weapon, causing cuts and scratches to the doctor’s left arm and a cut behind his left ear. The defendant was charged with attempted murder and wounding with intent. Two consultant psychiatrists decided that he was fit to stand trial. He was initially represented by solicitors and counsel but decided to dispense with his legal representation and represent himself. The trial judge appointed counsel to assist the court and the defendant with legal issues. The defendant was convicted of wounding with intent and acquitted of attempted murder. He appealed against conviction on the grounds, inter alia, that (i) the trial judge should have refused to allow the defendant to represent himself at trial but should have forced legal representation on him because, as a result of the nature and extent of his mental illness, he was in no fit state to represent himself; and (ii) the judge had had no inherent power to appoint an “amicus” to assist the court and the defendant.

On the appeal—

Held, appeal dismissed. (1) The defendant had been certified fit to plead. The judge had no power to force representation on him and there was no basis in fact or law for staying the proceedings. It was clear that a defendant who was fit to stand trial could not dismiss his legal representatives, insist on representing himself and then claim in the Court of Appeal that he should not have been allowed to represent himself (post, paras 14, 15).

(2) A court had an inherent power (and possibly a power under the Criminal Procedure Rules) to appoint an intermediary to ensure the effective participation of a vulnerable defendant in a trial. However, in this case an intermediary was not necessary. The judge, with the best of intentions, had purported to appoint an amicus “to assist the court” who in truth was appointed to act as a defence advocate and adviser but, save where statute provided, there was no power to appoint an advocate in these circumstances to perform such a role. Further, there was no need for any such power. The court now had ample powers to ensure a fair trial without resorting to appointing a defence advocate where legal representation had been refused. Accordingly, there was no basis for the appointment of counsel to act as amicus in this case, as helpful as he undoubtedly had been to the court and to the defendant. Through no fault of his, the boundaries of his role became somewhat blurred. He began as something akin to an amicus but he argued points with the prosecution on the defendant's behalf, explained to the defendant the effect of the judge's rulings and he cross-examined witnesses. But he was not the defendant’s advocate; the defendant had dispensed with the services of his advocate and his solicitors (post, para 39).

Per curiam. The circumstances in which an advocate can be appointed to assist the court are very restricted. A memorandum dated 19 December 2001 agreed between the Attorney General and Lord Chief Justice stated in clear terms that an amicus will not be appointed for the purposes of cross-examination in criminal trials and they will not be appointed “simply because a defendant in criminal proceedings refuses representation”. The Attorney General may consider appointing a special advocate in the Crown Court but only to perform a very limited role in relation to disclosure of sensitive documents. In such a situation it is not the court who appoints the advocate but the Attorney General and the advocate does not act on behalf of an accused in cross-examining witnesses or presenting arguments before a jury (post, para 37).

Appearances:

Ann Tayo (assigned by the Registrar of Criminal Appeals) for the defendant.

Jonathan Davies (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.

Tom Little (assigned by the Attorney General) as amicus curiae.

Reported by: Clare Barsby, Barrister

External links

BAILII

ICLR - [2017] WLR(D) 66