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R v Ghulam [2009] EWCA Crim 2285

Under CPIA 1964 s4 the court must not make a determination that the defendant is unfit to plead without medical evidence from two medical practitioners; however, where the medical evidence of unfitness to plead is only available from one medical practitioner, the judge is not bound to adjourn the trial but can make a determination that the defendant is fit to plead.


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


CRIME — Plea — Fitness to plead — Insanity — Evidence of only one registered medical practitioner put forward — Whether trial judge bound to adjourn trial to enable evidence from second registered medical practitioner to be sought — Whether trial judge could properly find defendant fit to plead — Criminal Procedure (Insanity) Act 1964, s 4(6)


The word “determination” in s 4(6) of the Criminal Procedure (Insanity) Act 1964 refers only to a determination that a defendant is unfit to plead so that, where that provision’s requirement for evidence from two or more registered medical practitioners to be before the court has not been met, the trial judge is not bound to adjourn the trial but may properly conclude that the defendant is fit to plead and that the trial may continue.

The Court of Appeal (Criminal Division) so held in dismissing the appeal of Habib Ghulam against his conviction in the Crown Court at St Albans (Judge Baker QC and a jury) on 7 April 2009 of burglary contrary to s 9 of the Theft Act 1968.

STANLEY BURNTON LJ, giving the judgment of the court, said that the defendant had been convicted of burglary of a house owned by a woman with whom he had previously had a relationship. On the first day of the trial an application had been made on behalf of the defendant for an adjournment, reliance being placed on a letter from a psychiatrist. The trial judge had refused that application because the letter had not asserted unfitness to plead, and that decision was not criticised. During the judge’s summing up to the jury a further application had been made, reliance being placed on a second letter in which the psychiatrist had asserted unfitness to plead, but the judge declined to discharge the jury and directed that the trial should continue. The judge’s reasons were that he had observed the defendant throughout the trial, during which the defendant had given evidence and had also given instructions about a possible challenge to a juror, and there had been no indications of inability. The procedure relating to fitness to plead was laid down by s 4 of the Criminal Procedure (Insanity) Act 1964, as amended by s 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and by s 22 of the Domestic Violence, Crime and Victims Act 2004. Under s 4(6), as amended, the court could not make a determination except on the written or oral evidence of two or more registered medical practitioners, at least one of whom was duly approved. The question which arose was whether “determination” in s 4(6) referred to a determination whether or not the defendant was unfit to plead or referred only to a determination that the defendant was unfit to plead. The court concluded that the latter construction was correct, because the former construction would lead to unreasonable consequences and the latter construction accorded with the Mental Health Act 1983, especially s 37(4) and s 54(1). There had therefore been no necessity to adjourn the trial. Further, the trial judge had been entitled to disagree with the view of the psychiatrist and to refuse to discharge the jury, because that was within the judge’s discretion and the evidence on which he relied had been strong.


R v Ghulam [2009] WLR (D) 303

CA: Stanley Burnton LJ, Penry-Davey J, Sharpe J: 21 October 2009

Appearances: Clive Smith (assigned by the Registrar of Criminal Appeals)for the defendant; Sally Mealing-McLeod (of the Crown Prosecution Service, Hertfordshire) for the prosecution.

Reported by: Philip Ridd, solicitor


[2009] WLR (D) 303

External link


ICLR case report