B & Ors, R. v

LORD JUSTICE TOULSON: This case in the Southampton Crown Court involves allegations of serious sexual abuse against ten people over a period of 40 years from 1968 to 2007. An indictment has been signed containing 32 counts.

17 of these counts contain allegations against the principal alleged defender, D1. They concern five complainants. D1 is the father of three and grandfather of the other two. In relation to each of them it is alleged that he committed acts of cruelty contrary to section 1 of the Young Persons Act 1933. There are matching counts against his wife, D2, except that these contain allegations of wilful neglect rather than positive ill treatment. There are also allegations against D1 of rape, indecent assault and sexual activity or incitement of sexual activity against a child family member. There is a sixth complainant, who is also a child of D1 and D2. It is alleged that D2 but not D1 was cruel towards her. The allegations are of wilful neglect.

The other defendants are alleged to have been involved in different ways in a ring of abuse at the centre of which was D1. Eight of the ten defendants have been arraigned and have pleaded not guilty to all charges. Two defendants have not been arraigned and, on 10th July 2008, were found by HHJ Boggis QC to be unfit to plead under section 4 of the Criminal Procedure (Insanity) Act 1964 as amended. Under that Act in its original form, it would have been for a jury to make such a finding but, as a result of amendments introduced by the Domestic Violence, Crime and Victims Act 2004, it is now a matter for the judge.

The two unfit defendants are D1 and D3, who was a friend of D1. D3 features in a single count in the indictment which alleges that he and a woman, D4, attempted to rape the sixth complainant on an occasion over 25 years ago. D1 has severe mental problems. D3 recently suffered a stroke. As a result of the judge's findings that D1 and D3 were unfit to stand trial, the question arose how the case was to proceed. This appeal arises from the judge's ruling on that question.

A trial is due to begin before HHJ Boggis on 15th September 2008. On 18th July 2008, he conducted a case management hearing which he decided should be treated as a preparatory hearing pursuant to section 29 of the Criminal Procedure and Investigations Act 1996. In his ruling he said:

Under section 35(1) of the Criminal Procedure and Investigations Act 1996, an appeal lies to this court from any ruling of a judge under section 31(3). So the first questions for us are whether the judge made a ruling under section 31(3) and, if so, whether he was entitled to do so. Section 29 provides:

It is common ground that the judge could not have conducted a preparatory hearing if the only defendant or defendants had been found unfit to stand trial. But in Kanaris [2003] Cr.App.R 1 at paragraph 37, Lord Hutton, with whom the other members of the House of Lords agreed, said that there was no rule of statute or practice which prevented a judge from ordering a separate preparatory hearing in respect of one defendant jointly charged with other defendants in the same indictment if he considered that it was in the interests of justice to do so. The House of Lords was there concerned with a case where there was a question as to the fitness of one defendant to stand trial and therefore there could not be a preparatory hearing in respect of him. However, the House of Lords considered that it was perfectly permissible for the judge to conduct a preparatory hearing in relation to others. Accordingly, the judge did have jurisdiction to conduct this preparatory hearing if the other criteria for doing so were met.

In our judgment, the case is one of complexity and he did have jurisdiction to hold a preparatory hearing to decide whether the case against the fit defendants should properly proceed separately from or jointly with the determination of whether the unfit defendants committed the acts alleged against them. This involved a question of law which would assist his management of the trial. It also necessarily involved a decision as to severance because his decision had the effect of reducing the indictment from 32 counts to 15 counts. As to whether he made a ruling within section 31(3), it is debateable whether he made an explicit ruling on a question of law, although he certainly posed a question of law, but in our judgment we need not debate that matter further because his ruling certainly did involve a question as to severance. For those reasons, we conclude that he was entitled to conduct a preliminary hearing and that we have jurisdiction to entertain this appeal. It is in our view desirable that the court should be able to consider, prior to next month's hearing, whether the trial of the fit defendants and the determination of the question whether unfit defendants did the acts alleged may and should proceed at one and the same time before the same jury, and that we should not be astute to uphold technical objections to our doing so if we can properly avoid it: see R v Ashton [2006] 2 Cr.App.R 15.

If we had concluded that we had no jurisdiction to entertain an appeal, the only other potential way of obtaining a review of the judge's decision would have been by an application for judicial review of the decision whether the issues relating to the unfit defendant should be postponed. If we had considered that such a course was both necessary and available, we could have reconstituted ourselves as a Divisional Court but we do not consider it necessary to pursue that issue further, although it was discussed in argument, because we consider that we have jurisdiction to entertain this appeal for the reasons stated.

We then turn to the judge's decision. We have to consider two questions. The first is whether in law it is permissable for the trial of fit defendants and the determination of whether unfit defendants did the acts alleged to proceed together. If so, the second question is whether in the present case we should disturb the judge's decision. There is no direct authority on the first point but it was considered in an interesting article by Vera Baird and Claire Wade entitled The Criminal Procedure (Insanity and Fitness to Plead) Act 1991 and the Juries Act 1974: Irreconcilable problems? [1999] Crim LR 656. As the article explains, the law in relation to people found unfit to stand trial was changed by Parliament as a result of the case of Valerie Hodgson. She had mental health problems and lived with her father. He was murdered. She was arrested and charged with his murder. She was found to be unfit to stand trial. Under the law as it then stood, she was committed without further ado to a mental hospital. There she remained until fresh evidence showed that her father's murderer was someone else. She had been detained in the meantime for a murder that she had not committed without any court investigation to determine whether in fact she was responsible for the killing. As a result, a new procedure was introduced into the Criminal Procedure (Insanity) Act 1964 by the insertion of a new paragraph 4A through the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

Section 4A, as originally introduced, provided as follows:

At the time when this section was introduced, section 11 of the Juries Act 1974 provided:

It was suggested by Baird and Wade that section 11 of the Juries Act may have been overlooked at the time of the introduction of section 4A into the Criminal Procedure (Insanity) Act 1964. The 1991 legislation did not address the possibility of joint trials and it was suggested that for the same jury to determine the guilt of fit defendants and the question whether an unfit defendant had done the act alleged would fall foul of section 11(4) of the Juries Act. The article also suggested that there would be overwhelming inequity in a jury trial of fit and unfit defendants because the unfit defendant could not be convicted. This would have the particular potential of causing injustice to a fit defendant where the cases of fit and unfit defendants involved cut throat defences.

Since that article was written, there has been further legislative change. By section 22 of the Domestic Violence, Crimes and Victims Act 2004, as already noted, the issue of fitness to plead is now to be determined by the court and not by the jury. Section 4 of the Criminal Procedure (Insanity) Act has been amended to that effect. The amendment also necessitated consequential amendment to section 4A and there has also been amendment to section 11 of the Juries Act. Section 4A(5) of the 1964 Act now reads simply "Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried". Section 11(5)(b) of the Juries Act 1974 has been deleted. So, whatever else may be said, the Juries Act was not overlooked in the latest round of legislative changes in this area.

The submission of the prosecution is that the provisions of the Juries Act do not preclude a jury hearing simultaneously the issue of the guilt of the fit defendant and the issue whether unfit defendants did the acts alleged. We have received written submissions on the appeal to the contrary, although the contrary argument was not developed in oral argument.

In addressing the question whether there can be a joint trial of those issues, it is helpful to consider first the situation where a defendant is found unfit during the course of a trial involving more than one defendant. For example, what would have happened if D3, who is the eighth of the defendants named in the indictment, had suffered his stroke towards the end of the trial when he was about to give evidence? Under section 4A(5) of the 1964 Act as amended, the question whether the unfit defendant did the act charged must be decided by the jury which had been trying him. So the jury would not be discharged. If, at the end of the trial, they were not satisfied that the defendant did the act charged against him, he would be entitled to be acquitted on the relevant count because the Act expressly says so. If the jury were satisfied that he did the act they would make that finding of fact.

What of the fit co-defendants? It would be most unfortunate if the law required the jury to be discharged from giving verdicts in their cases and there had to be a retrial. The 1964 Act does not require that to happen nor in our judgment does section 11 of the Juries Act. In principle, we see no reason why it should make a difference at what stage a defendant's unfitness occurs. The Criminal Procedure (Insanity) Act draws no such distinction. There is a quite separate question whether as a matter of discretion there should be a joint trial of the various issues. The stage at which the unfitness occurs may be pertinent when considering that question, but that is a question which needs to be answered in each case on a fact specific basis.

We have yet to address the question how section 11 of the Juries Act can be read so as to fit with this conclusion. Are there irreconcilable problems as the title to the Baird and Wade article challengingly suggests? It could be argued that, on a literal reading, section 11(4) would prohibit a jury from determining more than one count against one defendant. Every judge is taught to tell any jury in a case involving more than one count, or more than one defendant, that the jury must consider separately the issues in relation to each count and each defendant and make separate decisions upon them. This requirement was reflected in the traditional oath taken by each member of the jury that he or she would "faithfully try the several issues joined between our Sovereign Lady the Queen and the defendants and give true verdicts according to the evidence", although that traditional form of words has now been shortened.

The joinder of different defendants in a single indictment and the inclusion in an indictment of more than one count is not only every day practice but has a long pedigree. It is governed by a mixture of primary legislation, secondary legislation and case law. Section 4 of the Indictments Act 1915 provides that:

Mr Bartlett, on behalf of the prosecution, submitted that this time honoured practice is prevented from falling foul of section 11(4) of the Juries Act by the saving provision of section 11(5)(a), which permits "the trial of two or more issues by the same jury if the trial of the second or last issue begins within 24 hours from the time when the jury is constituted".

We are unpersuaded by this explanation for various reasons. First, it would be an extraordinarily oblique way of dealing with the everyday situation of different defendants and different counts in an indictment. Secondly, subsection 11(5)(a) is, by its language, pointing towards a jury embarking on trials of successive issues within a short time. Thirdly, it would in principle leave it impossible to amend an indictment to introduce a new count more than 24 hours after the commencement of the trial, unless possibly the new count was a redefinition of something contained in the original indictment. It would not cover the situation, for example, where a person charged with theft went into the witness box to explain that he was a handler for in such circumstances the prosecution would not then be entitled to apply to introduce a count of handling, no matter how just that procedure might obviously be. However, we think that section 11(5)(a) has relevnace as a pointer to the purpose of the section. From its language it seems reasonable to surmise that it may go back to the time when criminal and civil juries used to deal with cases with great despatch and it may have been thought administratively inconvenient to have to reballot and empanel a fresh jury between each. Some support for this explanation may be found in Professor Oldham's work on the Mansfield Manuscripts (1992, University of North Carolina Press). In volume 1 at page 138, he describes the work of the jury in Lord Mansfield's day:

In the time and with the limited resources available to the court, we have tried to put the theory to the test by research into the legislative origins of section 11 of the 1974 Act. Such progress as we have made is due to the help which we have received, and gratefully acknowledge, from the Statute Law Revision Team at the Law Commission. This is a team of experts in historical legislative research. It is dedicated to carrying out a systematic survey of the statute book in order to find what provisions are obsolete and to prepare bills for their abolition. Since its work is little known and seldom acknowledged, we are glad of this opportunity to mention it. Its work is important for keeping or making the statute book up to date and vital if the aim is to be achieved of having a fully comprehensive statute law database accessible to the citizenry of this country.

There have been a large number of statutes about the jury. In Professor Oldham's book Trial by Jury (2006, New York University Press) he lists, in appendix 4, 50 statutes from Magna Carta to 1730 dealing with qualifications for jury service, and that is only one aspect of the statutes dealing with juries. The immediate predecessor of section 11 of the Juries Act 1974 was section 26 of the Courts Act 1971, but before that the trail becomes obscure. Going back to 1825, there was a Juries Act which, according to Holdsworth, consolidated over 60 statutes. Section 26 of that Act contained detailed provisions for jury empanelment. Each juror summoned to attend any court of assize or nisi prius had his name written on a distinct piece of parchment or card as nearly as possible of equal size. They were to be put together in a box provided for that purpose. When an issue was brought on to be tried, the associate or prothonotary of the court was to draw out 12 parchments or cards of those (all men, of course) who would be empanelled, subject to any challenges. Once they returned their verdict, their names would be returned to the box:

Interesting as this may be as a matter of historical research, the appeal from HHJ Boggis needs to be decided without further delay. We are satisfied that section 11(4) of the Juries Act 1974, when it speaks of "one issue", is to be interpreted in this way. When a jury is empanelled to decide whether allegations contained in an indictment are proved by the evidence presented to the jury, that is the relevant issue for the purposes of section 11(4). What may properly be contained in the indictment is governed by other legislation and case law, so there is no irreconcilable conflict. Where a jury has been empanelled to decide whether a person is guilty of a charge in the indictment, that necessarily includes finding whether he committed the actus reus. If during the course of a trial of co-defendants one becomes unfit, the trial of the issue of his guilt comes to an end, but the proceedings continue in order for the jury to determine as a fact for the purposes of section 4A of the Criminal Procedure (Insanity) Act whether he committed the actus reus. The proceedings continue for that purpose on the indictment, for that document identifies the alleged acts and, as already noted, if at the end of the trial the jury is not satisfied that he committed the act or acts alleged, the defendant is to be acquitted on the relevant count or counts. It is a more limited issue than that which the jury was originally empanelled to decide, but it is an ordinary rule of pleading that the greater includes the less, see Biles v Caesar [1957] 1 WLR 156. (By contrast, section 11(5)(b) and (c) made special provision for cases where the matter subsequently determined by the jury was outwith the scope of that which it was originally empanelled to decide.) The same principle must in our judgment apply if the unfitness occurs before the commencement of proceedings before a jury.

We then turn to the critical question whether there was an error of law by HHJ Boggis. In our judgment, he was not right to conclude that it was inescapable that there must be separate proceedings before the jury in relation to the fit and unfit defendants. In considering how the court ought justly to proceed, there were four sets of interests to be considered: those of the unfit defendants, the fit defendants, witnesses and the public. Listing them in that order does not imply any particular ranking in relative importance.

We consider first the position in relation to D1. His role is central to the entire matters which the jury will be considering. He is currently on remand in prison. Some concern was expressed during the hearing about whether he should not be more appropriately in a mental hospital, but that is not a matter that we can address. Concern was also expressed about the possible impact of the custody time limits in relation to him. Again, that is not a matter currently before us but it is obviously desirable from his viewpoint that the question of whether he did do the alleged acts should be decided sooner rather than later. If the jury is not sure that he did them, he is entitled to be set at liberty. If the jury are satisfied that he did all or some of the acts alleged, then the court will address directly the question of what order should be made in relation to him. It is not clear whether the judge has formally appointed anybody to represent D1, but submissions made by those formerly representing him do not suggest any reason why it would be unjust for the issue whether he did the acts alleged to proceed as soon as possible simultaneously with the trial of other defendants. None of the fit defendants has suggested that it would be in any way prejudicial to them for the jury simultaneously to consider the issue whether he did the acts alleged. They recognise the inevitability that in substance, if not in form, the jury is going to have to be deciding that in any event.

From the point of view of witnesses, 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 D1 that the issue whether he did the acts alleged should be determined jointly with the trial of the fit defendants.

Different considerations arise in relation to D3. Although the matter alleged against him is grave, it is a single allegation of a matter which is alleged to have occurred very many years ago. He is, relatively speaking, one of the minor defendants. We gave leave for the purposes of these proceedings for him to be represented by counsel. It was submitted on his behalf that it would be unfair for proceedings against him to continue jointly with the fit defendants. That objection was supported by D4. We have not been into this matter in detail because Mr Bartlett for the prosecution sensibly did not seek to press this point. He recognised that there would be no major problem if the issue in relation to D3 were severed from the proceedings due to start next month. The problem for witnesses would be on a different scale if everybody had to give evidence twice in relation to D1. On the count which involves D3 there is one complainant and three witnesses to whom that complainant related what she said had happened to her.

We would not accept, as a matter of generality, the suggestion in the Baird and Wade article that there is an obvious or necessary injustice in proceedings going ahead jointly in relation to whether an unfit defendant did the act alleged and whether a fit defendant is guilty. The purpose of such a hearing is to try to arrive as nearly as possible at the same result as if there had been a trial, the dual objectives being that, if it could not have been proved after a full trial that the person in question did the acts alleged, he should be acquitted, but, if it could be proved, he should be eligible to be detained under the protectionary powers. However, on the particular facts, we have not been persuaded that we should interfere with HHJ Boggis' order in relation to D3.

The result is that we allow the appeal and direct in relation to D1 that the hearing of the issue whether he did the acts alleged should proceed on the indictment not as a trial of his guilt but as a hearing under section 4A of the Criminal Procedure (Insanity) Act 1964, jointly with the trial of the fit defendants. It will be for the judge to appoint someone to represent D1 if that has not already been done. 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.