R v MB  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:  EWCA Crim 1684 No: 200806638 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand 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 v MB Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) 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under section 5A and he is to be tried there is nothing to appeal against; the appeal has either been extinguished or superceded.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 jury." 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  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 position. 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 2010. 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 everything." 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  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 client. 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  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  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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