R v MB [2010] EWCA Crim 1684

(1) It was unfair to try the appellant, who was unfit to plead, with a co-defendant who made allegations against him in an attempt to exculpate herself, so the finding that he had committed the acts charged against him was unsafe. (2) This successful appeal meant that he had to be acquitted and that, because of a lacuna in the law, the Secretary of State now had no power to remit him for trial on the basis that he had become fit to plead.


This transcript will remain here until it is published on Bailii.

Neutral Citation Number: [2010] EWCA Crim 1684

No: 200806638 C5



                                                         Royal Courts of Justice


                                                                London, WC2A 2LL

                                                         TUESDAY, 15TH JUNE 2010

                                  B e f o r e:

                               LORD JUSTICE MOSES

                               MR JUSTICE HOLMAN

                            MRS JUSTICE RAFFERTY DBE

                                  R E G I N A



              Computer Aided Transcript of the Stenograph Notes of

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Mr R Onslow Appeared On Behalf Of The Appellant

Mr D A Bartlett & Mr D Reid Appeared On Behalf Of The Crown

                                J U D G M E N T

                           (as approved by the court)

                                Crown copyright©

1.     LORD JUSTICE MOSES:  This appeal raises the preliminary question whether
we should hear the appeal at all.  The appeal is against a finding that the
appellant committed the acts charged against him under section 15 of the
Criminal Appeal Act 1968.  But prior to the determination of that appeal the
Secretary of State has become satisfied that the appellant may properly be tried
and exercised her power to remit the appellant for trial pursuant to section 5A
of the Criminal Procedure (Insanity) Act 1964.

2.     The appellant seeks determination of his appeal before any trial takes
place.  If he succeeds in the appeal, and is acquitted, this court has no power
to order a retrial but must direct a verdict of acquittal to be recorded under
section 16(4) of the Criminal Appeal Act 1968.

3.     The prosecution asserts that now the Secretary of State has exercised her
powers under section 5A and he is to be tried there is nothing to appeal
against; the appeal has either been extinguished or superceded.  The appellant
seeks to retain the opportunity of an acquittal, which would preclude a proper
trial by ensuring the hearing of the appeal before any trial takes place, whilst
the prosecution seeks to avoid that possibility by ensuring that the trial takes
place before the appeal is heard.

4.     We shall have to turn in some detail to the facts should we hear this
appeal.  Suffice it to say at this stage that the case concerns findings of a
jury against this appellant, who had been found by the judge unfit to be tried;
they were findings of cruelty to his children charged in three counts, of
indecent assault against one of his children and a granddaughter by majority
verdicts and a finding in relation to another granddaughter of sexual activity
with a child member of his family.  In general, the allegations concerned a
household in which it was alleged that this appellant had committed acts both of
violence and abuse.

5.     On 18 July 2008 the judge who was to try the issues and the co‑defendants
ruled that this appellant and one RW, who was also found unfit to plead, should
be tried separately from a number of other defendants, nine in all, all of whom
were fit.  Those other defendants included the appellant's wife, Mrs MB, and
others who were subsequently convicted of sexual activity or attempted rape with
children of the family.

6.     The prosecution appealed that ruling, and on 15 August 2008 this court,
presided over by Toulson LJ, allowed the appeal and ruled that this appellant
but not RW, (the other defendant found to be unfit), who was charged only with
one offence, could be and should be tried with the remaining nine defendants.
Accordingly this appellant was tried with the nine fit defendants in a trial
which took place between 22 September and 4 November 2008.  However, the issue
for the jury was in relation to the fit defendants whether they were guilty of
the offences with which they had been charged, whereas against this appellant
the issue for the jury was whether he did the acts charged against him in the
counts which concerned him in the indictment.  Counsel who had represented this
appellant in the fitness to plead hearing was appointed by the court to put the
appellant's case to the jury.

7.     In order to resolve the preliminary issue it is necessary to consider the
statutory scheme under two distinct statutes; the Criminal Procedure (Insanity)
Act 1964 and the Criminal Appeal Act 1968.  Section 4(1) of the Criminal
Procedure (Insanity) Act 1964 provides:

"This section applies where on the trial of a person the question arises at the
instance of the defence or otherwise whether the accused is under a disability,
that is to say under any disability, such that apart from this act it would
constitute a bar to his being tried."

Section 4(4) provides that:

"Subject to sub‑sections 2 and 3 above the question of fitness to be tried
should be determined as soon as it arises."

8.     In the instant case the question of fitness to be tried arose before any
trial began.

9.     By section 4(5):

"The question of fitness to be tried should be determined by the court without a

His Honour Judge Boggis QC did try that issue and found that the appellant was
unfit, as we have recalled.  The consequences of such a finding and the issue
for the jury is set out in section 4A.  By 5.4A(1):

"This section applies where by in accordance with section 4(5) above it is
determined by a court that the accused is under a disability."

By section 4A(2):

"The trial shall not proceed or further proceed, but it shall be determined by a
jury ‑

(a) on the evidence of any already given in the trial; and.

(b) on such evidence as may be adduced or further adduced by the prosecution, or
adduced by a person appointed by the court under this section to put the case
for the defence, whether they are satisfied as respects of the count or each of
the counts upon which the accused was to be or was being tried, that he did the
act... charged against him as the offence."

By section 4(3):

"if with respect to that count or any of those counts the jury are satisfied as
mentioned in sub‑section 2 above they shall make a finding that the accused did
the act... charged against him."

10.     By section 4A(4), if the jury is not satisfied that he did any of the
acts it is required to return a verdict of acquittal, see section 4 A(4).  If
the jury acquits, that counts as an acquittal for all purposes; see R v H [2003]
2 Crim.App.R. 2 (per Lord Bingham at paragraph 10).  As R v H explains, the
process by which a jury decides whether a defendant did the act or acts with
which he is charged is not a process of trial.  If the jury finds he did those
acts the conclusion is not a conviction, but it is, as we have pointed out, if
they should find to the contrary, an acquittal for all purposes.

11.     The consequences of the findings that this appellant did commit some but
not all of the acts with which he is charged are set out in section 5 of the
Criminal Procedure (Insanity) Act 1964.  Once those findings have been made, the
court is required to make either a hospital order with or without a restriction
order, or a supervision order, or an order for his absolute discharge, see
section 5(2)(a)(b)(c).  The order that was made in this case was a hospital
order with a restriction order.  That is of importance because it is that
continuation which triggers the power of the Secretary of State under 5.5A(4).

12.     The appellant appealed against the findings of the jury on 24 February
2009.  He appealed on the basis that the trial of the issue as to whether he had
committed the acts alleged against him ought to have been severed from the trial
concerning the other defendant and that it was unfair that co‑defendants should
cross‑examine the principal witnesses when he had no opportunity to put his side
of the case.  On 15 January 2010 after Silber J had given leave that appeal was
listed to be heard on 16 March 2010.

13.     Once leave had been given, this appellant had a right to appeal with
leave pursuant to section 15 of the Criminal Appeal Act 1968.  Section 15 of the
Criminal Appeal Act 1968 provides:

"15(1) where there has been a determination under section 4 of the Criminal
Procedure (Insanity) Act 1964 of the question of a person's fitness to be tried
and there have been findings he is under a disability and that he did the act or
made the omission charged against him, the person may appeal to the Court of
Appeal against either or both those findings.

(2) an appeal under this section lies only ‑

(a) with the leave of the Court of Appeal..."

14.     The powers of this court, once Silber J had given leave, are identified
in section 16 of the Criminal Appeal Act 1968.  This provides:

"16(1) the Court of Appeal ‑

(a) shall allow an appeal under section 15 of this Act against a finding if they
think that the finding is unsafe and ‑

(b) shall dismiss such an appeal in any other case...

(3) Where the Court of Appeal allow an appeal under section 15 of this Act
against a finding that the appellant is under a disability ‑

(a) the appellant may be tried accordingly for the offence with which he was
charged and ‑

(b) the court may, subject to section 25 of the Criminal Justice and
Public~Order~Act 1994, make such orders as appear to them necessary or expedient
pending any such trial for his custody, release on bail or continued detention
under the Mental Health Act 1983...

(4) where otherwise than in a case falling within sub‑section 3 above, the Court
of Appeal allow an appeal under section 15 of this Act, against a finding that
the appellant did the act or made the omission charged against him, the court
shall, in addition to quashing the finding, direct a verdict of acquittal to be
recorded but not a verdict of not guilty by reason of insanity."

15.     In the meantime, Dr Owino, on 7 October 2009 concluded that the
appellant still required to be detained in hospital for further treatment and
because he posed a risk to his own health and safety and to others; he expected
a neuro‑psychological assessment.  On 11 January 2010 Dr Owino confirmed that
conclusion, but in an assessment of Dr David Murphy, a forensic
neuro‑psychologist, concluded that Mr B, whilst having significant cognitive
difficulties, would be able to take some part in parts of proceedings and was
capable of answering formal questions.  Following receipt of that report, Dr
Owino made a second addendum dated 2 January concluding that Mr B was fit to
stand trial and noting that he had informed the Secretary of State of that

16.     On 8 March 2010 the Secretary of State informed the court and the CPS
that he had decided to authorise the appellant's remission to her Majesty's
Prison Winchester pursuant to section 5A(4) of the Criminal Procedure (Insanity)
Act 1964.  That provides:

"Where ‑

(a) a person is detained in pursuance to a hospital order which the court had
power to make by virtue of section 5(1)(b) above, and‑

(b) the court also made a restriction order and that order has not ceased to
have effect,

The Secretary of State if satisfied after consultation with the responsible
commission that the person can properly be tried may remit the person for trial
either to the court of trial or to a prison.

On the person's arrival at the court or prison the hospital order and the
restriction order shall cease to have effect."

The appellant, pursuant to those provisions was remitted to prison on 10 March

17.     Had no appeal been pending it is clear that the exercise by the
Secretary of State of those powers under section 5A(4) of the Criminal Procedure
(Insanity) Act 1964 would have rendered the previous finding that he was unfit
made by the judge and the findings that he had committed certain of the acts
with which he was charged by the jury irrelevant.  The appellant would have
become an accused awaiting a proper trial and indeed, if necessary, should he
dispute the Secretary of State's view, he could raise the issue of whether he
was fit for trial again, but if he did not do so or alternatively if the judge
concluded that he was fit to plead, then he could be tried.  We should note
that, in the event of either the appellant losing this appeal or a decision not
to hear, a dispute has arisen as to whether this appellant is fit to be tried.
We have seen, although it is not relevant to our conclusion, two medical reports
which disagree with the conclusion of Dr Owino and reached the conclusion that
this appellant remains unfit to be tried.

18.     But in this case an appeal is pending because this appellant has
exercised his right to appeal under section 15(1) and that appeal, now that
leave has been given, can only be disposed of in the manner for which section 16
provides; either by allowing the appeal if the appeal is allowed or dismissing
it.  If the appeal is allowed then by virtue of section 16 a verdict of not
guilty must be recorded: that is a verdict of acquittal which would preclude any
trial on the same counts since it would be inevitable that the defendant could
successfully plead autre fois acquit.

19.     We should start our resolution of the issue by observing that if the
Crown is right, it can pre‑empt an appeal whether it is on the grounds of
procedural unfairness or on the grounds that the evidence was insufficient to
prove the charges originally laid.

20.     The answer, in our view.  Lies in the provision pursuant to which the
Secretary of State exercised his power under section 5A of the Criminal
Procedure (Insanity) Act 1964.  Section 5A applies only in a case where a person
is detained pursuant to a hospital order with restriction, see section
5A(4)(a)(b).  It would not apply had a supervision order or absolute discharge
been ordered under section 5(2)(b)(c).  There could be no question in those
cases that any pending appeal would remain live.  The consequences of the
exercise of the power by the Secretary of State are set out in the final
full‑out words of S.5A(5).  The exercise of the power to remit to court of trial
or prison has the consequence that the hospital order and restriction order
cease to have effect.  No consequences are identified in that sub‑section which
have anything to do with the right of appeal.

21.     Section 15 of the Criminal Appeal Act 1968 confers upon a defendant a
right to appeal provided he obtains leave.  The court's powers are restricted by
statute, not surprisingly since its jurisdiction exists only by virtue of
statute.  Such an appeal can only be disposed of in the ways identified in
section 16.

22.     It should be noted that the provision which has caused all the problems,
section 16(4), was introduced by the Criminal Procedure (Insanity) and Unfitness
to Plead Act 1991.  Paragraph 4 of Schedule 1 to that Act contained the
precursor of the power contained in section 5A(4) (subsequently amended again in
the Domestic Violence Crime and Victims Act 2004) and set out the power of the
Secretary of State to remit a person for trial if he is satisfied that the
person can properly be tried.  Schedule 3 to the self same Act introduced and
imposed, in section 16(4), the requirement of the Court of Appeal, when allowing
an appeal under section 15, to direct that a verdict of acquittal be recorded.
This underlines the absence of any statutory provision to extinguish the right
of appeal by the action of the Secretary of State when he exercises his power
under section 5A(4) of the Criminal Procedure (Insanity) Act.

23.     No such power is contained in either the Criminal Appeal Act nor in the
Criminal Procedure (Insanity) Act as amended.  We conclude, therefore, that the
defendant's right to appeal has been preserved, and once he has leave to appeal,
the court's powers of disposal are those identified and limited by the Criminal
Appeal Act 1968.

24.     The Secretary of State is entitled to exercise her powers, but the trial
may have to wait for the disposal of the appeal and can only take place if the
appeal is dismissed.  If it was otherwise, the question would arise as to what
is to happen to the appeal.  If the trial takes place and the defendant is found
to be fit to plead and is acquitted no problem arises, but what if the jury
convict him?  The appeal is still extant.  If the court take the opinion that
the appeal should be allowed, then the verdict of acquittal must, by virtue of
section 16(4) of the 1968 Act be entered, and thus there will be entered a
verdict of acquittal wholly inconsistent with the verdict of a jury on trial.
In our view the way to resolve that potential inconsistency lies in the
recognition that the exercise by the Secretary of State under the power under
section 5A does not affect or take away the right of appeal once leave has been
given nor does it enlarge the statutory powers of this court.

25.     Accordingly we shall turn to the substance of the appeal.  We have
identified shortly the nature of the case against this appellant and of the acts
which it was alleged he had committed.  He lived with his wife Mrs MB and four
children in Hampshire.  It was alleged that he had beat three of those children
and indecently assaulted his daughter.  It was also alleged he had behaved
indecently with two of his granddaughters.  It was alleged, although she was
acquitted, that his wife was guilty of cruelty in that she neglected those three
children by failing to protect them from physical abuse, sexual abuse and
inappropriate sexual behaviour.  The other co‑defendants were accused of
sexually abusing the children of the family and one of the granddaughters.

26.     On 18 July 2008 the judge, as we have indicated, ruled that this
appellant, with another defendant who was also found unfit, should be tried
separately.  In his ruling he described the case as a "case management hearing".
He took the view that that he had to consider whether there should be a trial of
the fit and unfit defendants, and asked himself:

"Whether it is possible to present a single jury with a clear analysis of the
different tasks that they are doing or they would be doing as far as different
defendants are concerned."

And he concluded:

"the questions that have to be decided for MB and RW are quite different from
the questions that have to be decided so far as the remaining defendants are
concerned [and that] it would be entirely wrong for one jury to deal with

It is plain, therefore, that the basis of his ruling that unfit defendants
should be tried separately related not to the particular facts of the case or
the particular difficulties of this appellant, but rather to the different
questions that a jury would have to ask: in the case of the fit defendants
whether the prosecution has proved their guilt as opposed to the case of the
unfit defendants where the question is whether they had committed the acts with
which they were charged.

27.     The Crown appealed what the judge had described as a "preliminary
ruling" and this court, as again we have indicated, considered the issue in R v
B, W, S, H and W [2008] EWCA Crim 1997.  The Court of Appeal concluded that all
of the defendants could be tried and should be tried together.

28.     It is important to note that at that stage Mr Onslow, who had been
acting for this defendant on the fitness hearing, was not then formally
appointed to represent him and was only able to put in written submissions.
Further it is also important to note, as will subsequently become apparent, that
at that stage he did not appreciate that MB's wife was to attack her husband and
blame him in an attempt to exculpate herself.  This is apparent from the
judgment of the Court of Appeal itself, in which Toulson LJ made it clear that
there had been no submissions to suggest any reason why it would be unjust for
the issue whether the appellant did the acts alleged to proceed simultaneously
with the trial of the other defendants (see paragraph 26).  The court went on to
explain the clear advantage in the witnesses giving their evidence on the two
issues at the same time.  As he put it:

"the balance of advantage is obvious.  A large number of complainants and other
witnesses are going to have to give harrowing evidence about matters alleged to
have happened to them over a span of many years.  The trauma of having to do so
twice hardly needs to be discussed further.  From the public interest again it
is obvious that if the proceedings can fairly and justly be conducted
simultaneously rather than successively, they should be.  We conclude in
relation to (Mr B) that the issue whether he did the acts alleged should be
determined jointly with the trial of the fit defendants."

We note that the caveat the court expressed was that the proceedings could be
fairly and justly conducted simultaneously.  Toulson LJ reiterated that by
pointing out:

"All that we have said in this judgment is without prejudice to any further
application for severance of any particular count or counts which may be made to
the judge." (paragraph 30)

Thus the Court of Appeal made it quite clear that if there were specific grounds
for trying the defendants separately nothing they had said should pre‑judge the
issue to be determined by the trial judge as to severance.

29.     As we have indicated, counsel subsequently ordered by the court to
represent this appellant did not appreciate that MB's wife would seek to defend
herself saying that she was the victim of violence at his hands.  In the summary
of interviews she was recorded as telling the police that her husband was a
"brilliant Dad" and thought the world of one of the alleged victims.  She said
that there was one occasion when he had told her he had smacked one of the
children, but she had never seen that.  In later interviews again she confirmed
that she did not remember seeing her husband hit the children and denied
encouraging him to beat them.  She repeated those denials and in particular, in
answer to a question, denied that she was lying for husband.  She did say that
he had "not beaten her for ages", and in the later interview recalled an
incident when he had been drunk and held a knife to her head causing a cut, but
it cannot have been clear to those looking after the appellant's interests that
she was going to rely upon any violence as part of her case.

30.     However at the trial, counsel retained to look after the appellant's
interests saw for the first time her case statement in which she alleged that
she had been assaulted by him when he was intoxicated, that the assaults had
been reported to the police and that she was in fear of her husband for much of
the period covered by the counts alleged against the defendant.  It was only
then that he realised there may be a risk that she would seek to blame his

31.     This fear proved all too realistic when shortly before cross‑examination
counsel for this appellant's wife indicated that he proposed to ask the
witnesses about repeated occasions of violence by this appellant against his
wife.  There had been no advanced application pursuant to the Criminal Procedure
Rules to adduce evidence of bad character as there should have been but the
judge permitted such cross‑examination to take place.  Once he made it clear he
would allow such cross‑examination to take place, counsel made an application
for severance.  On 24 September 2008 the judge gave his ruling.  He gave a
ruling in which he made it plain that he thought that the Court of Appeal had
precluded him making any ruling as to severance.  He said:

"my view is that the Court of Appeal must have borne in mind the nature of the
way in which the case was likely to develop as between various defendants and
must have had issues such as bad character in mind in deciding that everything
could be dealt with in the single trial.  I have been concerned about the
position of Mr B as against the other defendants, and as a result of ruling so
far as bad character is concerned, my view is that it would not presently be
appropriate to sever.  I must continue with the case in the way in which the
Court of Appeal has indicated it is to be tried."

Thus he refused severance.

32.     Cross‑examination took place and counsel for Mrs MB elicited evidence
from witnesses, in details to which we shall have to come, explaining and
describing how this appellant had treated not only them but their mother with
repeated violence.  In the light of that evidence, a further application was
made to sever.  The application was made in the light of the evidence given by
one of this appellant's daughters in which she described how this appellant was
violent to everyone and anyone.  He would hit out for any reason and she and her
siblings would try and protect her mother.

33.     The judge recalls counsel's submissions that that which he feared had
come to pass because the appellant was unable to answer the allegations now made
against him through his wife.

34.     The judge recorded the difficulties he faced, that the evidence assisted
his wife, and that was not in a position to answer them because he cannot give
evidence.  He said:

"Any jury would expect a defendant in circumstances such as this to come up with
what he says about the allegations made against him.  He cannot do that, and
that continues to be my concern."

He went on to say:

"I think that I am bound by the Court of Appeal judgment... the position of MB
remains a problem.  I simply cannot believe that these issues were not in the
forefront of the Court of Appeal's mind when it came to the conclusion that my
original decision was wrong.  MB was not represented there.  That in my view was
unfortunate, but there it is.  Everything that has been done now must have been
predictable.  In those circumstances, difficult though the summing up is going
to be, and further to have to go than the draft so far proposed by Mr Bartlett
(for the prosecution) my view is that I must continue with everybody here,
because that I think is the Court of Appeal's judgment and nothing has happened
in the course of the trial that is unexpected or causes that judgment now to be
looked at again."

It is plain, reading those rulings as a whole, particularly the second ruling,
that the judge thought that the Court of Appeal had precluded an order for
severance.  It is equally plain in our judgment that the judge himself thought
there should be separate trials.  He thought that at the outset and plainly
thought that Mr B was in an impossible position once bad character had been
introduced by the prosecution witnesses by virtue of the questions asked by his
wife's counsel.  Indeed, it was vital to her defence that she should adduce
evidence of violence since she said that, as a result of that persistent
violence, she was unable to defend herself or do anything about what he was
doing to the children.

35.     In our view the judge misdirected himself.  The Court of Appeal's
decision was not such as to bind the trial judge to refuse to sever once it
became clear what his wife's defence was.  He had no possibility of answering
those allegations in a case which had become if not a conventional cut throat
case, a case where she was blaming him and excusing herself.  The Court of
Appeal had not given any such a direction, and in the passages to which we have
referred in paragraphs 27 and 30, the Court of Appeal had made it clear that its
order that the defendants should all be tried together was only on the basis
that that could be done fairly.  It explicitly left open the question of
severance of one or more of the counts in paragraph 30.  But as a result of the
judge failing to heed those caveats, he did not exercise his discretion to sever
at all.  In that respect, in our judgment, he erred.

36.     The question then arises however as to whether that renders the jury's
findings that the appellant committed the acts unsafe.  In his summing up the
judge was at pains to prevent prejudice to this appellant and to explain the
approach the jury should adopt to the evidence given the disability under which
the appellant suffered, as a result of which he could not defend himself by any
evidence from his own mouth.  In the summing up the judge said:

"You have heard a good deal about him [that is the appellant] being violent
towards his wife.  He is not charged with being violent towards his wife, so why
have you heard the evidence?  You have heard it because Mrs B argues that is why
she did not do more to protect the children, and so she argues it is relevant to
whether she neglected the children or not.  If you think that Mr B may or did
assault his wife, as has been said by some witnesses and in particular A, you
can take that into account as relevant as to whether Mrs B neglected the
children.  If you are sure he did not then you will not take the evidence into
account in that way.  But what of him, what of Mr B's position?  He cannot give
evidence and he cannot say whether these serious allegations against him are
true or not or whether there is an explanation which puts these matters in a
different light.  So far as he is concerned my firm direction to you is to put
these allegations against him out of your minds.  It will be unfair on him to
have these things held against him when he cannot answer them.  You may think
that it is a bit odd using a piece of evidence at one part of trial yet ignoring
it at another.  Well juries have had to do this for time without number and I
know you will be true to yourselves and true to the directions I give you in
separating things out in the way I have indicated."

37.     Later in his summing up, which was lengthy and detailed, he repeated:

"I do emphasise here that when we are talking about these counts of physical
abuse by MB to three of his children I am not in any way and you must not
yourselves think of abuse by him to his wife, because I have told you that you
must ignore that when you consider the case against MB.  You know that MB and
his wife deny there has been any such physical abuse; they denied it in
interview, they speak of virtually no smacking."

Thus the jury was clearly being told not to hold against this appellant evidence
either by the children or by anyone else of violence to his wife.

38.     This court, however, must bear in mind that whilst in many cases a jury
are required to ignore in relation to one defendant evidence relevant to another
defendant, a defendant who has been found unfit to plead faces particular
difficulties.  They were described by Lord Hutton in his speech in R v Antoine
[2002] Crim.App.R. 94 at page 111 as difficulties which preclude a defendant
from raising defences that might otherwise arise, such as a defence of mistake,
accident or self‑defence.  Lord Hutton made it clear that it would be possible
to raise those defences if the evidence of other witnesses gave rise to their
possibility, but if they did not do so then the defence would be unable to raise
them.  (Page 111E to 112B).

39.     Those difficulties are compounded in a case where a defendant tried
along side an unfit defendant seeks to defend herself by attacking the unfit
defendant.  The jury was being asked specifically to take into account in her
favour the evidence of the prosecution witnesses which described persistent
violence towards her, but exclude it when considering that self‑same evidence
from the self‑same sources which allege that he had been guilty of violence or
sexual abuse.

40.     It is in those circumstances that we turn again to the views of the
trial judge.  It is quite clear, for the reasons we have given, that from the
outset of the trial, fearing that possibility, the judge wanted to sever.  His
first ruling as to severance had nothing to do with allegations which might be
made against this defendant and it is quite clear that his views as to severance
on his first ruling at the trial management stage were made as a matter of
principle.  His views as to principle were corrected by the Court of Appeal, but
the Court of Appeal did not have before them any suggestion that one defendant
would seek to attack the unfit defendant in an attempt to avoid conviction and
the Court of Appeal made it clear that its ruling was only on the basis that a
fair trial could take place.

41.     This court has repeatedly said that it will not interfere with a trial
judge's ruling unless it is outwith the range of reasonable conclusion.  The
judge's views subsequently expressed in both of the rulings to which we have
referred, are a powerful indication of his view of the need which arose to sever
to ensure a fair trial.  He plainly took the view that there could not be a fair
trial of this unfit defendant once his wife, through her counsel, had elicited
evidence of repeated violence and drunken behaviour by this defendant.

42.     We should respect that view, indeed we take the same view.  We are
driven to a reluctant conclusion that once the jury had heard the evidence from
those prosecution witnesses, prompted and elicited by his wife's counsel, then
the jury would not be able to remove that evidence from their minds.  In our
view that failure to sever did lead to substantial unfairness to this unfit
defendant, unable to defend himself.  It is true that there was evidence of
sexual behaviour that only came from his children and grandchildren, and indeed
of inappropriate behaviour from other witnesses, but in our view it is not
possible to distinguish between the verdicts in relation to violence and the
verdicts in relation to sexual behaviour bearing in mind the overwhelming effect
of the evidence given as to this appellant's behaviour.  In those circumstances,
by reason of that unfairness, we take the view that the findings were unsafe.

43.     The result is most unfortunate.  Nothing we have said in any way
reflects upon those who the jury found to be victims.  Nothing we have said
reflects upon the truth of their evidence in relation to the counts where the
jury found this appellant to have committed the acts with which he was charged.
But what is plainly an error on the part of the legislature prevents us from
ordering a rehearing of the issue whether he had committed those acts or from
ordering a trial.  Section 16(4) binds us to direct verdicts of acquittal in
respect of all those counts.

44.     In R v Leslie Norman [2008] EWCA Crim 1810 Thomas LJ foresaw this
result.  In a postscript (paragraph 34(iv)) he recorded that the court could not
order a retrial.  We make it clear that had we been able, this was a case which
cried out for a retrial since it was only the substantial procedural defect of
trying both fit and unfit defendants together that has caused the unfairness.
Thomas LJ in paragraph 34(iv) recorded that, in the case with which that court
was concerned, the public interest could be protected, but he continued:

"There could well be cases where it would not be, and serious public concern
could arise where this court considered a verdict unsafe and was compelled to
enter an acquittal, but nothing further could be done.  We would hope that
Parliament might give consideration to this lacune in the statutory provisions
and consider granting this court power to order a retrial of the issue as to
whether the defendant did the act with which he was charged."

45.     The consequences of section 16(4) are even more radical and serious in
circumstances where the Secretary of State asserts that this appellant is fit to
be tried.  Now that we are compelled to enter a verdict of acquittal, he cannot
be retried even if he be fit ‑‑ although this is a matter of controversy ‑‑ to
be tried.  We thus have now seen the consequences of the lacuna, and we repeat
that the lacuna needs to be filled.  The only comfort that there may be is that
there is evidence that this appellant remains unfit to be tried and thus the
concern which would be merited at the injustice which follows from our
conclusion might in some respects be allayed.

46.     MR BARTLETT:  My Lord, as to the first part of your ruling as to the
jurisdictional point we have prepared a proposal for the consideration of the
Supreme Court.  I appreciate we have prepared that before we have heard your
judgment, but I wonder if would you be good enough to consider it.

47.     LORD JUSTICE MOSES:  Has your opponent seen it?

48.     MR BARTLETT:  He has.

49.     LORD JUSTICE MOSES:  Is it a product of both of your work?

50.     MR BARTLETT:  No, I have to say it is a product of our side.

51.     LORD JUSTICE MOSES:  We will go outside and read it.

52.     MR BARTLETT:  I am grateful.

                              A Short adjournment

53.     LORD JUSTICE MOSES:  Well we shall certify this question.  I ought to
ask you Mr Onslow, do you have any observation about the drafting of it?

54.     MR ONSLOW:  My Lord no, on the last occasion in March my learned friend
and I put our heads together about it.

55.     LORD JUSTICE MOSES:  We will certify this point, and make sure the
associate has it, but we will refuse you permission.

56.     MR BARTLETT:  Yes, I understand, thank you.

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