R v Walton (aka Wright) [2010] EWCA Crim 2255

Criminal appeal (fitness to plead).

Transcript (Crown Copyright)

The transcript will remain below until it appears on Bailii.

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



5 AUGUST 2010

5 AUGUST 2010

H Johnson (Solicitor Advocate) for the Appellant

N Methold (Higher Court Advocate) for the Crown

Registrar of Criminal Appeals; Crown Prosecution Service


(reading the judgment of the court)

[1]  This appeal against conviction arises in somewhat unusual circumstances. It
is not opposed by the Crown.

[2]  On 28 March 2008, before His Honour Judge Downes at the Norwich Crown
Court, the Appellant pleaded guilty to two counts of having with him a bladed
article. These offences put him in breach of a community rehabilitation order
imposed at the Leicester Youth Court on 17 April 2007 for an offence of burglary
and in breach also of two conditional discharges imposed on 8 June 2007 at the
Leicester Magistrates' Court for a bladed article offence and on 12 September
2007 at the Loughborough Magistrates' Court for an offence of criminal damage.
Those orders fell to be revoked and the Appellant re-sentenced when he appeared
at Norwich on 28 March. On 17 April 2008 he pleaded guilty to two offences of
failing to surrender to bail and on the same day he was sentenced and, where
applicable, re-sentenced to various concurrent and consecutive terms of
detention in a young offenders institution amounting to 12 months in all.

[3]  He appeals against his convictions with leave of the single judge.

[4]  The grounds relate to his fitness to plead and arise in circumstances which
we shall explain in a moment. It is well to bear in mind his date of birth, 9
May 1989.

[5]  First, the facts of the bladed article offences to which the Appellant
pleaded guilty on 28 March 2008. Very early in the morning of 3 January 2008
police officers came across the Appellant in the street. He was drunk and
aggressive. There was an altercation about a man who had phoned the police and
at length the officers arrested the Appellant for being drunk and disorderly. He
told the police he had knives on him. Inside the waistband of his trousers they
found two black-handled bread knives, one with an eight inch blade, the other a
7.5 inch blade. At the police station he said he was taking the knives back to a
friend of his who owned them, but he would not name the friend.

[6]  After his sentence on 17 April 2008 matters rested there until 12 September
2008, while he was still in custody, when he was produced at the Leicester
Magistrates' Court to face a single charge of sexual activity in the presence of
a child contrary to s 13(1) of the Sexual Offences Act 2003. On 28 September
2008 that matter was committed to the Leicester Crown Court. The Appellant was
at liberty on licence by this time and was bailed in respect of the sex offence
to appear at the Crown Court on 16 January 2009, when he duly pleaded guilty to
that offence. The case was adjourned until 27 March 2009 for a pre-sentence
report and a psychological report to be obtained. In fact he appeared in court
on 7 April 2009 from custody after a warrant was issued following notice by the
Probation Service that he was not co-operating with the preparation of the
pre-sentence report.

[7]  After this a raft of information became available about the Appellant's
mental state. We can do no better than set out these short paragraphs from an
affidavit of Helen Johnson, the Appellant's solicitor, who has also appeared
before us this morning. The affidavit was sworn on 26 April 2010:

     "9 The Appellant was seen by Dr Richard Alexander a psychologist who
     prepared a report about him and concluded at paragraph 4.6 of his
     report 'Andrew's full scale IQ of 54 (51 - 59) is very low and gives
     him a mental age of between five and six years'.

     10 Due to the contents of the psychological assessment a psychiatric
     report was commissioned from Dr Ekkehart Staufenberg. He carried out a
     full assessment of the Appellant's functional ability to participate
     effectively in the trial proceedings and concluded that the Appellant
     was not fit to plead. He recommended a second psychiatric report to be

     11 Dr Duggan was instructed and prepared a further psychiatric report
     in relation to the Appellant which again concluded that he was unfit
     to plead due to his very limited intellectual functioning.

     12 It is the evidence of Dr Richard Alexander, Dr Ekkehart Staufenberg
     and Dr Lorna Duggan which the defence seek to be admitted as evidence
     in the Appellant's case. It being fresh evidence that was not
     available to the Norwich Crown Court in 2008.

     13 When the three reports were put before Leicester Crown Court on 9
     July 2009 an application to vacate the Appellant's plea was made and
     granted and the court went on to find that the Appellant was not fit
     to plead.

     14 On 4 August 2009 a finding of fact hearing, [we interpolate, that
     was of course in relation to the sexual offence] took place and the
     Jury concluded that the Appellant did the act alleged. On 5 August
     2009 having heard oral evidence from Dr Staufenberg the Appellant was
     made the subject of a Hospital Order for an indefinite period with

Those orders were of course made under ss 37 and 41 of the Mental Health Act

[8]  The grounds of appeal are that on the expert psychological evidence now
available it is clear that the Appellant cannot have been fit to plead on 28
March 2008 or 17 April 2008 because his mental state was such that he lacked the
understanding necessary to enable him to follow and participate in the
proceedings and to give instructions. Dr Alexander, the psychologist, in his
report of 17 May 2009 concentrated on the Appellant's very low intelligence
rating. He carried out a series of cognitive tests. As Miss Johnson reported,
they showed a full IQ scale of 54, equivalent to the mental age of a five or six
year old. Dr Staufenberg's report of 7 July 2009 described (para 14.1) a
"profound learning difficulty". The Appellant had been sexually abused in his
own childhood. He has a significant underlying generalised anxiety. Under
"Conclusions", Dr Staufenberg stated:

     "4 In regard to the ascertainment of Mr Andrew Walton's capacity in
     relation to effective participation in trial proceedings, I shall
     respectfully have to recommend that I have rarely come across a case
     of such manifest incapacity as our assessment unambiguously confirmed.

     5 I shall therefore have to respectfully recommend that Mr Andrew
     Walton be considered incapable in relation to his effective
     participation in trial proceedings."

[9]  Dr Staufenberg prepared a further report dated 19 January 2010. Under
"Conclusions", he said:

     "5.1. On the basis of the evidence from Mr Andrew Walton's
     neurocognitive and personality functioning up until the time of
     writing the original court report, I have been able to corroborate
     highly supportive evidence through my clinical team that the then
     defendant was indeed suffering from a wide-range of neurodevelopmental
     cognitive, emotional, psychological and social impairments. Comprising
     these within the context of memory difficulties, a dependent, low
     self-esteem and low self-worth informed personality, and the need to
     be liked and wish to please as well as fit in with others, resulted
     directly and causally in Mr Andrew Walton's all pervasive wish to
     avoid any adverse circumstances, including appearance for any extended
     period of time in court. Likewise, he would have felt similarly in
     relation to any police interviews."

It is true, however, that Dr Staufenberg noted substantial progress: see para

[10]  Dr Lorna Duggan in her report of 4 July 2009 stated as follows, under the
heading "Fitness to plead":

     "He did not understand the meaning of 'guilty' or 'not guilty' pleas
     merely stating, 'guilty means you get it done quickly and not guilty
     means you've not done it' and he told me that his 'pad-mate' had
     taught him about not guilty earlier in the day. With regard to the
     guilty plea he entered, he explained that he wanted to leave the court
     quickly because he had to go on a train journey to Norwich and he was
     worried about missing his train. This was his first solo trip on a

     In my opinion, he could not challenge a juror, instruct a lawyer or
     understand and give evidence.

     In view of the above, I am presently of the opinion that he is unfit
     to plead and therefore is under disability regarding his trial.

     Given that his unfitness to plead is related to his very limited
     intellectual functioning, it is my view that this is unlikely to
     change in the near future, however, one would anticipate some
     maturation over the next decade . . . .

     It is my view that he can be classified as suffering from a mental
     disorder within the meaning of the Mental Health Act 1983, namely
     learning disability associated with seriously irresponsible behaviour.
     It is my view that a Hospital Order under Section 37 of the Mental
     Health Act 1983 may be appropriate in this case rather than a
     custodial disposal. To allow for a full assessment to be completed I
     respectfully recommend that he is made subject to an Interim Hospital
     Order under Section 38 of the Mental Health Act 1983."

[11]  On this material, which it is sought to be admitted in this court pursuant
to s 23 of this Criminal Appeal Act, it is submitted that the Appellant was not
fit to plead on 28 March or 17 April 2008 and his conviction should be quashed.

[12]  We agree. We stated at the outset that the Crown do not oppose this
appeal. Their position is that given that the Appellant is now subject to an
order under s 37 of the Mental Health Act, together with a s 41 restriction
order, the public interest does not require that any further reports be
commissioned. The existing reports may be received under s 23 and we so admit
them. We should use our powers under s 6(1) of the Criminal Appeal Act to
substitute findings that the Appellant suffered from a disability and that he
did the act charged. We quash the convictions and make those findings.

[13]  Miss Johnson has submitted this morning that given the extant s 37 and s
41 orders, which of course continue to be effective, it is necessary today to do
no more than order an absolute discharge in relation to the 2008 offences. We
think that is a sensible course of action. We make it clear that it is
appropriate for the very reason that the Mental Health Act orders made in the
other proceedings are extant and effective. That is the order we make. In the
result then the appeal is successful in the respects we have described.

                                                           Judgment accordingly.

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