G v DPP [2012] EWHC 3174 (Admin), [2012] MHLO 140

At the Youth Court it had been argued that the case should be stayed since it would be an abuse of the court's process to proceed to an adjudication when the appellant was unfit to plead, to participate in his trial and to instruct his defence. Having heard medical evidence from both sides, the District Judge declined to stay the proceedings, arranged for the appointment of an intermediary and accepted the intermediary's advice as to the way in which the appellant should be assisted during the course of the hearing; he found the charge proved. This was an appeal by way of case stated in relation to the appellant's conviction at the Youth Court. (1) The High Court set out the rules for appeals and commented that the way in which the appeal had been prepared is was lamentable. (2) The District Judge had correctly followed the guidance (from DPP v P) for proceedings in the Youth Court in which capacity is relevant. (3) The defence expert confused the propriety of a prosecution with the ability to understand the nature of proceedings and communicate instructions and the District Judge was entitled to disagree with her.

Judgment (Crown Copyright)

"G" v Director of Public Prosecutions

[2012] EWHC 3174 (Admin)


(Transcript: Wordwave International Ltd
(A Merrill Communications Company))



19 OCTOBER 2012

D Page for the Appellant

T Devlin for the Respondent

Blavo & Co; Crown Prosecution Service


[1]  The Appellant is aged 15. We make an order under s 39 of the Children and
Young Persons Act 1933 that no material may be published, including his address,
school or other information, the subject of s 39 which may have the effect of
identifying him. Any transcript of this judgment will identify the Appellant by
the initial "G". The Complainant is also entitled to his anonymity and I shall
refer to him only as the Complainant.

[2]  This is an appeal by way of case stated challenging the Appellant's
conviction at the Youth Court for Hackney and Tower Hamlets on 19 August 2011
for an offence that, on 8 February 2011, he intentionally penetrated with his
penis the mouth of a boy under the age of 13 contrary to s 5 of the Sexual
Offences Act 2003.

[3]  The Appellant submitted before District Judge Read at the commencement of
proceedings that they should be stayed since it would be an abuse of the court's
process to proceed to an adjudication when the Appellant was unfit to plead, to
participate in his trial and to instruct his defence. For that reason it was
submitted a fair trial could not be achieved.

[4]  The District Judge was provided with medical reports from Dr Jennifer
Cutler, a consultant forensic psychologist employed by Forensic Psychology
Services Ltd on behalf of the Appellant, and with a report from Dr Cheung on
behalf of the prosecution. Dr Cutler expressed the view, in summary, that the
Appellant was not fit to take part in the trial process. Dr Cheung, on the
contrary, held the opinion that he was so fit. The evidence had developed in the
form of supplementary reports, we are informed, culminating in an agreed
statement of issues and a statement of agreement and disagreement between the
experts. At a preliminary hearing Dr Cutler conceded that if the Appellant was
to be tried, it would be appropriate to appoint an intermediary.

[5]  The District Judge declined to stay the proceedings on the grounds
advanced, arranged for the appointment of an intermediary and accepted the
intermediary's advice as to the way in which the Appellant should be assisted
during the course of the hearing. The intermediary appointed was Naomi Mason,
whose qualifications are referred to in para B of the case stated.

[6]  I must first observe that the progress of this appeal leaves much to be
desired. The requirements for the production of a case stated followed by the
service of a notice of appeal seem largely to have been ignored, with
consequential disadvantages to both parties to this appeal.

[7]  By s 111 of the Magistrates' Court Act 1980, a party may apply, within 21
days after the decision of the Magistrate' Court, for a case to be stated. What
ought then to follow is the procedure provided by the Criminal Procedure Rules
at Pt 64, rr 64.1 to 64.6 in particular. Rule 64.2 provides that within 21 days
after receipt of an application for a case, that case shall be provided unless
the justices refuse under its power given by s 111(5) of the 1980 Act, and that
a draft case should be sent to the Applicant or his legal representative, with a
copy to the Respondent or his legal representative. Rule 64.2(2) provides that
within 21 days after receipt of the draft case, each party may make
representations in writing signed by or on behalf of the party making them.
Rules 64.3 and 64.4 make provision for the preparation of the final case in the
light of those representations.

[8]  Upon the evidence before us it would appear that the magistrates for the
Hackney and Tower Hamlets Justice area communicated only with the Appellant's
legal representatives, who made representations as to the content of the case
stated. No copy of the case stated appears to have been received by or on behalf
of the Respondent, which protested in its eventual response to the appeal. It
learnt nothing about the intended appeal until some seven months after the
request was made for the statement of a case. That is not a surprise since,
first, the Respondent was not served with a copy of the case and, second,
despite the fact the case is dated 16 January 2012, no Appellant's notice was
lodged until 15 March 2012.

[9]  By Civil Procedure Practice Direction 52PD at para 18.3, it is provided
that the procedure for applying to a Magistrate' Court for a case stated shall
be that set out in the Crown Court Rules 1982 and the Magistrates' Courts Rules
1981 respectively and that, at para 18.4, the Appellant "must file the
Appellant's notice at the appeal court within ten days after he receives the
stated case". Paragraph 18.4 of the practice direction specifies the documents
which must be lodged with the notice. This procedure was not followed.

[10]  Of further disadvantage to the Appellant is counsel for the Appellant's
revelation that he had no knowledge of the response delivered on behalf of the
Respondent until the morning of this appeal.

[11]  In my judgment, the way which this appeal has been prepared is lamentable.
In particular, at para 4 of the case stated (to which I shall return later) the
District Judge summarises the effect of the evidence of Dr Cutler had given
during trial, but between quotations. It is quite clear from the submissions
made by counsel this morning that there was significant further evidence given
in cross-examination which affected the issues. No representations were made to
the District Judge, as they should have been, which would have resulted in an
accurate summary of that evidence. Through the good sense and co-operation of
counsel, who were counsel at the original trial, the difficulties created by
these omissions have been cured since they are agreed as to the effect of the
relevant evidence.

[12]  Turning to the issue which has arisen, ss 4 and 4A of the Criminal
Procedure (Insanity) Act 1964 (as amended), apply only to trial on indictment.
In the Magistrate' Court, including the youth court, by s 11 of the Powers of
Criminal Courts (Sentencing) Act 2000, the court, if the court is satisfied that
the accused did the act or made the omission charged, but is of the opinion that
an inquiry ought to be made into his physical or mental condition before the
method of dealing with him is determined, it shall adjourn the case to enable a
medical examination and report to be made. By s 37(3) of the Mental Health Act
1983, the court may, instead of convicting a person suffering from mental
illness or severe mental impairment, make a hospital or guardianship order. The
youth court enjoys a separate jurisdiction to order the stay of a prosecution if
it appears that the person charged cannot, by reason of incapacity, have a fair

[13]  In the Director of Public Prosecutions v P [2007] EWHC 946 (Admin), [2007]
4 All ER 628, 171 JP 349, this court (Smith LJ and Gross J) considered the
proper approach to the court's assessment in cases in which the mental capacity
of the Defendant might be relevant to the question of stay, of doli incapax and
of the application of ss 11 and 37 respectively.

[14]  In DPP v P, the court dealt with the issue of doli incapax since it
reached the tentative view that although the presumption had been removed by
statutory provision, the requirement itself had not. As to that decision, the
court was subsequently overruled by a decision of the House of Lords.
Nevertheless, the judgment of Smith LJ, with whom Gross J (as he then was)
agreed, contains important guidance for proceedings in the youth court in which
capacity is relevant. Commencing at para 51 of her judgment, Smith LJ said this:

     ". . . But if criminal proceedings are begun and the defence raises
     any of the capacity issues, how should the court proceed? There can be
     no doubt that, notwithstanding the fact that the youth court is a
     creature of statute (like any other Magistrate' Court) it has an
     inherent jurisdiction to stay proceedings as an abuse of process at
     any stage. The jurisdiction is limited to matters directly affecting
     the fairness of the trial of the particular Defendant concerned and
     does not extend to the wider supervisory jurisdiction for upholding
     the rule of law, which is vested in the High Court: see R v Horseferry
     Road Magistrates Court ex parte Bennett [1994] 1 AC 42. However,
     although the jurisdiction exists, I think that it will be in only
     exceptional cases that it should be exercised, on the ground of one or
     more of the capacity issues, before any evidence is heard.

     52 . . . This is an issue which the court has to decide, not the
     doctors, although of course the medical evidence may be of great
     importance. But, the medical evidence must almost always be set in the
     context of other evidence relating to the child, which may well bear
     upon the issues of his understanding, mental capacity and ability to
     participate effectively in a trial. I have in mind for example,
     evidence of what the child is said to have done, how the child reacted
     when arrested (if he was) and how he behaved and what he said when
     interviewed (if he was). Other factors may also be relevant to the
     decision that the court has to take. If a trial begins, the court will
     wish to ensure that the child understands each stage of the process.
     That may involve some direct exchanges between the district judge or
     chairman of the bench and the child. The child's responses may well
     assist the court in deciding on the child's level of understanding . .
     . . The court must be willing, in an appropriate case, to disagree
     with and reject the medical opinion. It is the court's opinion of the
     child's level of understanding which must determine whether a criminal
     trial proceeds.

     53 Accordingly, it is my view that, in most cases, the medical
     evidence should be considered as part of the evidence in the case and
     not as the sole evidence on a freestanding application. Although the
     medical evidence might on its own appear quite strong, when other
     matters are considered the court might conclude that the Defendant's
     understanding and ability to take part in the trial are greater than
     were suggested by the doctors and that, with proper assistance from
     his legal adviser and suitable adjustments to the procedure of the
     court, the trial can properly proceed to a conclusion.

     54 As was pointed out in the West London case [2006, 1 WLR 1219], the
     court has a duty to keep under continuing review the question of
     whether the criminal trial ought to continue. If at any stage the
     court concludes that the child is unable to participate effectively in
     the trial, it may decide to call a halt . . . .

     55 If the court decides that it should call a halt to the criminal
     trial on the ground that the child cannot take an effective part in
     the proceedings, it should then consider whether to switch to a
     consideration of whether the child has done the acts alleged (the
     fact-finding process), under the procedure referred to in the Barking
     case [[2002] 2 Cr App Rep 294]. It is clear since In re H [[2002] EWCA
     Crim 2988] . . . that the fact that a child cannot take an effective
     part in the fact-finding process does not infringe his Article 6
     rights. That process is part of the protective jurisdiction
     contemplated by the 1983 Act and the child's Article 6 rights are not
     even engaged.

     56 The decision as to whether or not to switch to fact-finding is one
     for the discretion of the court . . . ."

[15]  In his case stated, the District Judge indicates that, in accordance with
the procedure recommended in DPP v P, he proceeded to hear the evidence.

[16]  At the conclusion of the case for the prosecution the Appellant was not
called to give evidence, but Dr Cutler was called in order further to express
her views as to the mental capacity of the Appellant and his fitness for trial.

[17]  At the conclusion of the evidence submissions were made by Mr Page, on
behalf of the Appellant, which amounted to a repetition of his submission that
the Appellant was not fit to be tried, accordingly that the District Judge
should order the proceedings to be stayed.

[18]  The District Judge makes clear in the case stated that in the course of
argument, which, as I have said, began well before trial, he had been referred
to the relevant authorities, some of which were referred to by Smith LJ in the
passage which I have just read, namely, R (P) v West London Youth Court [2005]
EWHC 2483 (Admin); CPS v P [2007] EWHC 946 (Admin), [2007] 4 All ER 628, 171 JP
349 - this reference should have been to DPP v P-C v Sevenoaks Youth Court
[2009] EWHC 3088 (Admin), [2010] 1 All ER 735, 174 JP 224 and R v (P) v Barking
Youth Court [2002] EWHC 734 (Admin), 166 JP 641, [2002] 2 Cr App Rep 294.

[19]  The District Judge declined to stay the proceedings at the conclusion of
the evidence and found the charge proved.

[20]  The evidence of the five-year-old Complainant was received by way of ABE
interview. He was in bed under the covers in his bedroom with the Appellant. The
Appellant put his "willy" in the Complainant's mouth. It "tasted like fish
meat". The Complainant's mother confirmed in evidence that at the material time
the Appellant was staying at her home. On 8 February she noticed that her son
was nowhere around. She went to his bedroom and found both boys in bed under the
cover. She could see that the Appellant had an erection. She asked what had
happened. Her son, who was then aged four, said "[the Appellant] put his willy
in my mouth and there were hairs on it". The Appellant was asked what he had
done. He replied "No, I didn't".

[21]  Before the Appellant was interviewed he was seen by a Force Medical
Examiner and he was interviewed in the presence of an appropriate adult, a
social worker, together with his solicitor. He admitted committing the act and
said that he knew it was wrong.

[22]  The District Judge in the case stated summarised the evidence of Dr
Jennifer Cutler as follows:

     "I still say [the Appellant] is not fit to plead and stand trial, in
     the first percentile of cognitive ability, IQ 66. He is not mentally
     ill, I do not think that his behaviour should be criminalised, not in
     the public interest to prosecute him. He has difficulties in verbal
     comprehension, understand between right and wrong to a limited degree,
     I do not think in a criminal context. I agree that he knew it was very
     naughty or bad, he understood it at a level of a five-seven year old.
     He did not understand at the time the consequences of what he did, he
     knew what he was doing was wrong. I do not feel that there is any
     benefit in criminalising his actions."

[23]  It will be observed immediately that this summary of Dr Cutler's evidence
contains a mix of opinion relating to the morality of the proceedings in a
criminal court, to the level of the Appellant's comprehension that what he did
was wrong and as to his cognitive ability. The sole question for the District
Judge at the conclusion of the evidence was whether the Appellant was fit to
take part in the trial, in the sense which I have described at the commencement
of this judgment.

[24]  Mr Devlin, who appeared for the prosecution in the court below,
cross-examined Dr Cutler in order to investigate what contribution she could
make to that single issue. The note made by Mr Page on behalf of the Appellant
of the answers given in cross-examination, a note which is now accepted on both
sides, is summarised as follows:

     "[G] is not mentally ill. Dr Cutler accepts the agreed issues between
     the experts in the experts statement. She did not believe [G] should
     be criminalised, although she accepted that the decision to prosecute
     was one for the Crown Prosecution Service and not for her. [G]
     understood right and wrong to a limited degree but she did not believe
     he so understood 'in the context of criminal courts'. It was her
     opinion that it was inappropriate to talk to a four year old about sex
     unless functioning at that level. [G] had a clear recollection as to
     what he did. He understood that it was naughty or bad behaviour at the
     level that an infant child would understand it. She accepted that [G]
     understood why he was at court to a limited degree. He knew that he
     had been at fault because of something that he had done wrong, but he
     did not understand the remoter consequences of that. Probably, she
     conceded, he knew that the judge would make a decision whether he was
     guilty or not guilty. Although [G] knew that what he did was wrong, he
     did not appreciate the gravity of it. He handled sexual situations
     badly or inappropriately."

[25]  We have by concession also received from Mr Page a copy of the
supplementary report prepared by Dr Cutler on 1 June 2011 in which she purported
to deal with the issue of fitness to plead and take part in the trial.

[26]  It is clear to me from the contents of that report that she continued to
confuse the issue as to the propriety of a prosecution for the criminal offence
against this boy, on the one hand, and his ability to understand the nature of
the proceedings and to communicate his instructions to his legal advisers. An
important consideration is that in the report Dr Cutler notes "[G] could clearly
identify it as the activity he did with [the Complainant] and would also have an
awareness that it was the activity that resulted in his getting into trouble,
the police being called and him being sent away." Dr Cutler drew attention to
the fact that some of the words of art used in the context of criminal
proceedings would not have been understood, such as "innocent" or "guilty" or
"solicitor" or "fellatio".

[27]  It seems to me, having now an understanding of the nature of the evidence
the District Judge was considering, entirely unsurprising that the District
Judge should have concluded that, with the assistance of an intermediary, the
Appellant was well able to take part in the proceedings.

[28]  The questions stated by the District Judge for the court are as follows:

     "a. Was I bound by the opinion of the Defence Expert, Dr Jennifer
     Cutler, or was I able to make my own decision after hearing all the
     evidence in the case?

     b. Although the question of 'fitness to plead' is not a matter for the
     Magistrates Court in that there is no procedure to deal with it
     (Archbold Magistrates' Court Guide, 8-91 and 28-11); the fact that
     [G]'s expert stated that he was not mentally ill and that I had on the
     Defence's application appointed an Intermediary and had conducted the
     trial having regard to her advice; was I bound to conduct an enquiry
     as envisaged by R(P) v Barking Youth Court?"

[29]  It was first submitted on behalf of the Appellant that the District Judge
had no regard to the procedure to be followed. This submission I reject. It is
plain that the District Judge did follow the procedure set out by Smith LJ in
DPP v P.

[30]  Secondly, it was submitted that the District Judge erred in holding that
there was not a fitness to plead procedure in the Magistrate' Court. Literally,
in my judgment, the District Judge was correct: there was no equivalent to the
procedure in the Crown Court to deal with the issue of fitness to plead. There
were, however, two tools in the box available to the youth court. The first was
the application for stay and the second was, in an appropriate case, to proceed
to a finding of fact rather than a conviction. It is clear to me that the
District Judge was well aware of these possibilities, having made express
reference to the guidance given.

[31]  It is submitted that the judge erred in considering that there was no need
for conducting an inquiry as to whether the Appellant was guilty of the facts of
which he was charged without making a finding of guilt. As Smith LJ made clear
in DPP v P, the discretion as to whether or not to proceed to such findings
depends upon the court's assessment of whether it is necessary in the particular
circumstances of the case. The evidence of the Appellant's own expert witness
was to the effect that the Appellant admitted his act, which he knew to be
wrong. It is submitted that the District Judge disregarded the evidence of the
Appellant's lack of capacity given by Dr Cutler.

[32]  I have endeavoured to summarise the true effect of Dr Cutler's evidence.

[33]  At the conclusion of his cross-examination Mr Devlin took the view that
there was no longer, in reality, any ground upon which the proceedings should be
stayed for the Appellant's lack of understanding of them. By that stage, of
course, the District Judge had had the opportunity of observing the Appellant
and the intermediary, ensuring, as he said in the case stated, that the advice
given by the intermediary at the commencement of the proceedings was complied

[34]  I reject the submission that there was not a proper evidential basis upon
which the District Judge could reject the submission that the Appellant could
not follow the proceedings or give meaningful instructions.

[35]  Finally, it was submitted that District Judge failed to give adequate
reasons for reaching the conclusion he did.

[36]  Reading relevant sections of the case stated in isolation may lead to the
conclusion that the District Judge could have been more explicit in his
reasoning. However, reading the case statement as a whole, it is clear to me
that not only did the District Judge have well in mind the relevant evidence,
but also the principles which he should apply in reaching his conclusion.

[37]  It was never submitted to the District Judge on behalf of the Appellant
that he should embark upon a disposal which did not involve a conviction but
might involve, for example, a hospital order under s 37(3) of the Mental Health
Act 1983. Dr Cutler certainly did not support it. In the light of the medical
evidence available to the District Judge, it does not seem to me that would have
been a realistic course to take.

[38]  In my opinion, there was no procedural irregularity. The District Judge
correctly followed the guidance given. There was evidence upon which the
District Judge could properly conclude that the Appellant could be tried without
unfairness, and in particular that he could follow the proceedings and give
relevant instructions. It seems to me that, properly analysed, the evidence of
Dr Cutler did not support the opposite view. There was, on the evidence, no
basis for interfering with the decision to prosecute, which it seemed was Dr
Cutler's underlying concern. Finally, the District Judge was entitled to
exercise his judgment against proceeding under s 11 of the 2000 Act and s 37 of
the 1983 Act, having regard to the effect of all the evidence and not just the
evidence of Dr Cutler.

[39]  Having found the facts proved, that the Appellant understood what it was
alleged he had done wrong and that he knew it was wrong, it is my view that the
District Judge was justified in proceeding to a finding of guilt.

[40]  I would answer the questions stated - subject to the reservation which I
have expressed as to the accuracy of question B - no, and I would dismiss the


[41]  I agree with everything that has been said by my Lord in his judgment.

                                                               Appeal dismissed.


Date: 19/10/12

Before: Pitchford LJ, Haddon-Dave J

Mr D Page (instructed by Blavo & Co, London) appeared on behalf of the Appellant

Mr T Devlin (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent

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