R v Orr  EWCA Crim 889,  MHLO 21
"The appeal concerns the definition of 'fitness to plead' and the process engaged by the trial judge in the instant trial which proceeded after he found the defendant 'unfit to be cross examined'. ... Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly found that the appellant had been fit to participate in his trial up to the point of cross examination and thereby implicitly determined that the appellant was no longer able to fully participate in his trial within the 'Pritchard' refined criteria. In these circumstances, the procedure to be adopted was clearly set out by section Criminal Procedure (Insanity) Act 1964, 4A. We agree with the submission that this is a statutory mandatory requirement which cannot be avoided by the court's general discretion to order proceedings otherwise, however beneficial to the defendant they may appear. It follows that, in this case, the jury should not have been allowed to return a verdict, other than a verdict of acquittal if they were not satisfied on the evidence already given in the trial that the appellant did the act charged against him. The appeal against conviction must be allowed."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Court of Appeal
Regina v Orr
2016 June 21; July 7
Macur LJ, Flaux J, Judge Goldstone QC
Crime — Plea — Fitness to plead — Defendant becoming unwell after giving evidence-in-chief at trial — Experts assessing defendant unfit to plead but defendant wishing trial to continue — Proper approach to be adopted — Criminal Procedure (Insanity) Act 1964 (c 84), s 4A(1) (as amended by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c 25), s 2 and Domestic Violence, Crime and Victims Act 2004 (c 28), Pt II, s 22(4)) — Criminal Justice and Public Order Act 1994 (c 33), s 35(1)(b) (as amended by Crime and Disorder Act 1998 (c 37), Sch 10, para 1)
The defendant’s trial for being concerned in a money-laundering arrangement commenced two years’ after his first trial was terminated, because he had become unfit when being cross-examined by the Crown. He gave evidence-in-chief but when the Crown were due to cross-examine him, he was unwell and the judge adjourned the trial to determine the nature and extent of the defendant’s mental incapacity and to enable him to be cross-examined by a defence psychiatrist. The psychiatrist attended with a colleague and prepared a report, before giving short oral evidence in the absence of the jury. He gave his opinion that, having examined the defendant that day and utilising the principles relevant in determining capacity to make a decision in accordance with the Mental Capacity Act 2005, the defendant was unable to participate in his trial, unable to be responsive to cross-examination and that position was unlikely to ameliorate in future. The judge was informed of the attendance of a second psychiatrist whose report could be used in any fitness to plead proceedings which might arise. Counsel for the defendant indicated that he wished the trial to continue, even if the Crown were denied the opportunity to make a closing speech because he wanted to avoid the stigma of the jury making a finding of fact against him in fitness to plead proceedings. He invited the judge to publicly express a view to dissuade the Crown from continuing with the prosecution in the circumstances. The judge gave a provisional view that the trial should proceed with limits on the Crown’s closing speech. The second psychiatrist, instructed by the Crown, assessed the defendant as unfit to plead in her report. The Crown referred to the fact the defendant had already given evidence-in-chief and asked the judge to assess whether the defendant had been unfit to give evidence, as well unable to give evidence under cross-examination, in deciding the issue of fitness to plead. The judge indicated his view was that the defendant was unfit to be cross-examined but had been fit to give the evidence he had already given and likened the defendant to a vulnerable witness who should not be disadvantaged by not being able to give evidence. He considered the Crown should be able to make a closing speech, even if it was curtailed in view of the defendant’s involuntary incapacity. The Crown drafted a closing speech prepared in accordance with the judge’s direction that it should not contain reference to any subject which the defendant had not been in a position to meet in cross-examination and edited it further at the request of the defence prior to delivery. Neither counsel referred the judge to section 35(1)(b) of the Criminal Justice and Public Order Act 1994, as amended by paragraph 1 of Schedule 10 to the Crime and Disorder Act 1998. The defendant was convicted and appealed against conviction on the ground that, having found the defendant was unable to be cross-examined as a result of being unable properly to respond to questions asked in cross-examination, the judge should have ruled that he was not fit to be tried, discharged the jury from returning verdicts then proceeded to a determination by the jury as to whether the defendant had done the act or made the omission charged against him, in accordance with section 4A(1) of the Criminal Procedure (Insanity) Act 1964, as amended by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and Part II, section 22(4) of the Domestic Violence, Crime and Victims Act 2004.
On the appeal—
Held, appeal allowed. The issue of fitness to plead identified in section 4 of the Criminal Procedure (Insanity) Act 1964 was better identified as “fitness to participate in the trial process,” since the supposed disability could be determined at any stage up to “verdict of acquittal” and could not be determined by reference to part only of the trial process. Section 35(1)(a) of the Criminal Justice and Public Order Act 1994 catered for the situation where the physical or mental condition of the accused made it undesirable for him to give evidence. A finding that the defendant was unfit to give evidence in cross-examination did not necessarily determine the question of fitness to plead. The trial judge’s provisional and present views and ruling on the renewed application to discharge the jury from returning a verdict did not articulate a rigorous enough examination or careful enough analysis of the Pritchard criteria (R v Pritchard (1836) 7 C & P 303) as interpreted in R v Podola  1 QB 325). Counsel had not drawn the judge’s attention specifically to section 35 of the 1994 Act. Once the issue of fitness to plead had been raised, it had to be determined and the judge explicitly found that the defendant had been fit to participate in his trial up to the point of cross-examination. He thereby implicitly determined that the defendant was no longer able to fully participate in his trial within the Pritchard refined criteria after that. The procedure to be adopted in those circumstances was clearly set out in section 4A of the Criminal Procedure (Insanity) Act 1964. That was a statutory mandatory requirement which could not be avoided by the court’s general discretion to order proceedings otherwise. The jury should not have been allowed to return a verdict other than a verdict of acquittal, if they were not satisfied on the evidence already given in the trial that the defendant did the act charged against him (paras 23, 24, 26, 27, 29, 30–31).
David Spens QC (assigned by the Registrar of Criminal Appeals) for the defendant.
John Black QC and David Durose (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.
Reported by: Georgina Orde, Barrister