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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Grant, R v [2008] EWCA Crim 1870 (29 July 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1870.html Cite as: [2008] EWCA Crim 1870, [2008] MHLR 202

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 29th July 2008

1. LORD JUSTICE PILL: On 12th April 2006, at the Crown Court at Warwick before McKinnon J and a jury, Liam William Grant was convicted of abducting a child under section 2(1)(a) of the Child Abduction Act 1984. On 11th August 2006 he was sentenced by Mr Recorder Raggatt QC to a community order for a period of three years. Three requirements were imposed: (1) supervision requirement whereby the applicant was ordered to co-operate with any medical assessment undertaken by the Disability Unit and attend appointments at Oliver House or other premises of the Learning Disability Services as directed: (2) prohibited activity, in that the appellant is not to enter public parks or recreational areas, save in the company of an adult approved by the probation service for three years; (3) residence requirement, that the applicant must reside as directed by the probation services.
2. Mr Grant appeals against conviction by leave of the Full Court granted this morning, the application for leave having been referred by the single judge. The single judge granted the required extension of time.
3. In the evening of 20th June 2005 an eight year old boy was riding his bicycle with his dog in Babbs Mill Park in the Birmingham area. A man had been watching him. The man approached him and asked him to go into the bushes with him. The boy refused, whereupon the man grabbed his arm and tried to drag him into the bushes. The boy vigorously attempted to stop that. He also cried out and members of the public intervened. The man made off.
4. The prosecution case was that the appellant was the man who approached the boy. The defence case was that it was not him. The witnesses who identified him were not eye witnesses but saw him near the scene and there was a sufficient link with the events to make the identification relevant. Two such witnesses identified the appellant on an identity parade, the boy having failed to do so.
5. A number of witnesses were called. The trial lasted a period of three days. The appellant did not give evidence. Two character references were supplied and a witness gave oral evidence that she had had a lot of contact with the appellant and had never known him to hurt or frighten a child.
6. The appellant is now 44 years old. He had no previous convictions. The appellant was represented then, as he is now, by Mr Tucker. Before sentence he sought an adjournment so that a psychiatric report would be obtained. The application for an adjournment was refused.
7. Medical evidence has subsequently become available of the mental health of the appellant. We shall refer to it in more detail. It is because of that evidence that the appellant asks the court to follow the procedure set out in section 6 of the Criminal Appeal Act 1968 as amended. 6(1):

"This section applies where, on an appeal against conviction, the Court of Appeal, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion --

(a) that the proper verdict would have been one of not guilty by reason of insanity; or

(b) that the case is not one where there should have been a verdict of acquittal, but there should have been findings that the accused was under a disability and that he did the act or made the omission charged against him.

(2) The Court of Appeal shall make in respect of the accused --

(a) a hospital order (with or without a restriction order);

(b) a supervision order; or

(c) an order for his absolute discharge."

8. On behalf of the appellant Mr Tucker submits that on the evidence before the court it is established that the appellant was not fit to plead in April 2006. He submits that the procedure in the section should be adopted. The jury have made a finding that the appellant did the act charged against. The court should exercise its power in such circumstances to make a supervision order.
9. Before the sentencing court in 2006 was a pre-sentence report with an addendum. That report did not raise the question of fitness to plead. There was a letter from the probation services indicating the risk of self-harm were a custodial sentence to be imposed.
10. Before the sentencing hearing a psychological report was available. That dealt in considerable detail with psychological matters but did not raise the question of fitness to plead.
11. However, three days before the sentencing hearing a psychiatric report was provided. That is one of the reports now relied upon. It is the report of Dr H Boer, a consultant forensic psychiatrist. It is dated 8th August 2006. The doctor set out with care the findings of Dr Trent in the psychological report and the low IQ of the appellant. The appellant had suffered an accident while a baby and suffered brain damage almost certainly as a result of that accident. Dr Boer stated his opinion:

"1. In my opinion Mr Grant is under a disability in relation to trial, and I have significant concerns about his fitness to plead at the time of his trial. He has limited understanding of court proceedings and his ability to fully understand the evidence against him and to instruct his solicitors is significantly impaired.

2 Mr Grant suffers with a significant learning disability and [he therefore suffers from mental impairment as defined in the Mental Health Act 1983].

3. Mr Grant appears to have suffered a brain injury either at birth or at the age of one year resulting in learning disability and right sided hemiparesis (weakness of his right side) and possibly right sided blindness."

12. Reference is made in the report to the considerable help which the appellant has had through his life from his parents. Reference was also made to the extreme vulnerability of the appellant if there were to be a custodial disposal.
13. The learned Recorder proceeded to sentence, notwithstanding the application for an adjournment, and he made the community order to which we have referred. That, of course, was a non-custodial disposal and it included a supervisory element.
14. A psychiatric report was obtained by solicitors acting for the appellant. It is dated 2nd May 2007 and was supplied by Dr Dinesh Maganty, a consultant forensic psychiatrist.
15. Having already set out the background, we need only refer to Dr Maganty's opinion.

"[The appellant] would satisfy the criteria for mild mental retardation ... He would be at the lower end of this category.

Even though Mr Grant suffers with significant cognitive impairments affecting his judgment, thinking process and reactions to stress consequently, his external demeanour and physical appearance masks this condition."

16. Reference is made to the lack of change which would have occurred in the appellant's abilities over the years. Reference is made to a depressive episode which the appellant had suffered.
17. At paragraph 4:

"Due to his mental impairment and mental illness during his trial in April 2006, Mr Grant would not have been able to comprehend the evidence presented against him and would not have been in a position to give evidence in his own defence (which he did not do) on the balance of probabilities. It is also unlikely that he had a clear comprehension of the court process including the role of a jury and that of a judge. It is unlikely that he would have been able to challenge a juror due to his mental state at that time. I also have some doubt as to whether he would have been able to instruct his legal team appropriately during that period.

Considering all the above, in my opinion, it was unlikely that he was fit to plead and fit to stand trial during April 2006."

18. Dr Maganty recommended a supervision order under the provisions to which we have referred.
19. A further letter from Dr Boer indicates that no medical requirement in any supervision order is appropriate. Dr Boer clearly has not altered the opinion as to fitness to plead which he expressed in his report.
20. The court has a helpful letter from Leisa Walsh, the probation officer responsible under the West Midlands Service for supervising the appellant. He was allocated to her, taking over from another colleague, on 6th November 2007. We do not propose to read the whole of the letter. Credit is given to the appellant for attending sessions and attempting to complete work tasks that are given to him. The appellant remained in denial with regard to the offence. His level of understanding limits his ability to understand the regular concepts used by the probation service. The appellant has been attending weekly sessions with the Skills for Life tutor, Miss Janet Daniels:

"She advised that he is developing his listening and speaking skills, although he tends to use the time to discuss personal issues."

21. Miss Daniels stated that she would like him to continue seeing her. She believes he responds well to the support she can give. She sees improvements in his self-esteem and confidence. Support is likely to be available for an unlimited time under that service, though Mr Tucker has told the court that there is a funding problem to which we need not refer further. It is much to be hoped, in our view, that the Skills for Life therapy is continued.
22. Having considered that evidence, we have come to the conclusion that this appeal should be allowed. We have considered the written evidence of two appropriate medical practitioners. Their opinion is that the appellant was unfit to plead when he had this trial in April 2006. The doctors plainly understand the legal concept and the test by which fitness to plead is assessed has been set out in one of the reports.
23. In our judgment, the appropriate order is a supervision order. We are able to make an order for a period of two years, beginning with today's date, and we do make such an order. We have a duty to explain it, which we will do in a moment, to the appellant. It is appropriate that there should be certain conditions attached. The appropriate provisions are set out in Schedule 1A to the Criminal Procedure (Insanity) Act 1964 as amended.
24. We have had the advantage this morning of the attendance and advice of Mr Gardner, the liaison probation officer at the Royal Courts of Justice. He told the court that he had spoken to Miss Walsh yesterday and he has had a short opportunity this morning to discuss the case with counsel, Mr Tucker.
25. The order we make is to specify the local justice area, which we are told is Warwickshire, in which the appellant resides and he will be required under paragraph 3(1)(b) of Part 2 to Schedule 1 to be under the supervision of an officer of the appropriate probation board for the area. The appellant will be under a duty to keep in touch with the supervising officer in accordance with such instructions as may from time to time be given by that officer. He shall notify any change of address. In our judgment, it is appropriate to make a condition of residence. The appellant's parents have behaved magnificently to him over the years. They are prepared that he should reside with them. We make a condition accordingly. That is under paragraph 8 of Part 2. We will be supplied with the address in a moment.
26. Clearly there must be concern when someone, who on evidence subsequent to the trial has been shown clearly not to be fit to plead, was made subject to a trial. We have the advantage of hearing today both counsel who appeared at the trial: Mr Tucker already mentioned and Mr David Jones for the prosecution. We have referred to the medical report of Dr Maganty and we repeat a statement at paragraph 2, that the appellant's difficulties are masked by his external demeanour and physical appearance. Thanks, among other things, to the care of his parents over the years he does not display as having the limitations which on further examination it is clear that he does have. Neither counsel at trial nor the judge were aware of the extent of his disability.
27. We cannot in the circumstances criticise anyone for the course events have taken. We do, however, stress that there is a duty on those advising defendants to consider this question and, if necessary, to bring to the attention of the judge the possibility of unfitness to plead. It was the mask of the condition, we are confident, referred to by those involved, which meant that steps were not taken before the trial.
28. For the reasons we have given, we allow this appeal against conviction, we quash it and exercise our powers under section 6 of the 1968 Act to make the orders we have.
29. LORD JUSTICE PILL: Mr Tucker, we are under a duty to explain in ordinary language to the appellant. Would he come forward and his father so that I can discharge that duty?
30. MR TUCKER: I am very grateful. I have explained to them and I am sure there will be no difficulty.
31. LORD JUSTICE PILL: If both gentlemen could come into the well of the court. Mr Tucker senior, only if you want to. You can stay where you are, if not.
32. Mr Grant, as we have indicated in our judgment, we make you subject to a supervision order. That means that you must keep in touch with your supervising officer. And you know Miss Walsh, she has been supervising you for some time now. You must act in accordance with such instructions as from time to time the supervising officer may give you. It is further required that you live with your parents, and the address can be put in the order, and also that you notify any change of address. That order will operate for a period of two years from today. Thank you very much.
33. THE APPELLANT: Thank you.