THE LORD CHIEF JUSTICE:

1. This is an appeal against conviction with leave of the single judge. On 22 July 2008, in the Crown Court at Manchester, before His Honour Judge Hammond and a jury, the appellant, Louie Charisma, was convicted of rape (count 2) and of causing a person to engage in sexual activity without consent (count 7). On 9 February 2009 he was sentenced on both counts to a Hospital Order with a restriction, pursuant to section 41 of the Mental Health Act 1983.

2. On 22 July 2008, before the same constitution, the co-defendant, Michael West, was convicted of false imprisonment (count 1), causing a person to engage in sexual activity without consent (count 3), rape (counts 4, 5 and 6), and making a threat to kill (count 8). He was later sentenced on counts 3, 4, 5 and 6 to life imprisonment with a minimum specified term of nine-and-a-half years, with 496 days spent in custody on remand to be credited towards that sentence. On counts 1 and 8, he was sentenced to three years' imprisonment to run concurrently.

3. West had renewed his application for leave to appeal against conviction and for an extension of time, following refusal of leave by the single judge. We were told yesterday that West's counsel had been admitted to hospital. In those circumstances we were invited to remove West's application from the list. We acceded to that request, and so today we confine ourselves to Charisma's appeal.

3. The victim of the sexual offences was a 16 year old girl. The prosecution alleged that prior to June 2007 West had groomed the complainant sexually and had gained her confidence. The result was that she went to visit him on 18 June. She alleged that she was kept a prisoner in his room. They were both joined later by the appellant. They both raped her -- West more than once -- and each held her while the other raped her. The appellant left. Thereafter, West made threats to kill her using a knife. After the attack he made her bathe and he shaved off his own body hair in an attempt to remove any possible link which might be established forensically between him and the complainant.

4. Following a medical examination of the complainant, evidence was found of bruising in the area of her vagina, her anus and wrists. The bruising of the vagina was consistent with penile penetration.

5. On 19 June 2007 West was arrested and interviewed. He produced a prepared statement in which he denied the allegations and denied having any form of intercourse with the complainant. He also asserted that no one else had entered the room while she was with him.

6. On the following day the appellant was arrested. He was interviewed. He did not seek the assistance of an appropriate adult and it was not thought necessary or appropriate for such an adult to be made available to him. He denied any offence of rape of the complainant. He explained that on 16 June 2007 West had told him that he knew a girl who was hoping to make some money from prostitution. He asked the appellant if he was interested. He was. He went to West's room on 18 June. West told him that the girl was there. West said that she wanted £20 to have sexual intercourse. The appellant left the house to go to a cash machine to obtain the money. When he returned, he handed the money to West. West left the room. The complainant was wearing a top but had no trousers on. The appellant smoked some crack while she gave him oral sex. Shortly afterwards, West returned to the room. The appellant thought that the complainant seemed fond of West. He observed them chatting and cuddling one another.

7. The precise details of the activities alleged by the complainant need no elucidation in this judgment.

8. The issue which arises in the present appeal stems from the fact that the appellant chose not to be present at his trial. He elected to remain in custody while it took place. The case advanced by counsel on his behalf was that the appellant had no recollection of events on the night in question. He denied that he had been involved in the offences in any way. Reliance was placed by counsel on the instructions from the appellant that he would have told the truth to the police when he gave his account after his arrest on 20 June, and so counsel was entitled and justified to put forward that account as material for the jury to consider in support of the appellant's case. In the result there was no evidence from the appellant. In passing we note (although for present purposes it goes no further) that West gave evidence denying the offence.

9. The ground of appeal is critical not of any terms of the directions given by the judge under section 35 of the Criminal Justice and Public Order Act 1994 in relation to the appellant's failure to give evidence, but of the fact that any such directions were given at all. It was made clear at the outset that the appellant was fit to plead and stand his trial. That remained the position from start to finish. When the trial began the judge directed the jury that the appellant had the right not to attend, and so the exercise of that right should not be held against him.

10. When the evidence for the prosecution was reaching its conclusion, counsel, acting on the medical evidence that the appellant was fit to understand advice and give instructions, having formed his own view of the appellant when he saw him, explained the potential adverse impact on his defence if the appellant declined to give evidence. Counsel was satisfied that the appellant understood the advice. The appellant was adamant that he would not give evidence on the basis that he had no memory of the alleged incident.

11. Later, at the appropriate stage, the judge satisfied himself that appropriate advice had been given by counsel and that the appellant had understood the advice.

12. The question whether the jury should be given any direction under section 35 of the 1994 Act was canvassed before the judge. Section 35(1), so far as relevant, provides:

"At the trial of any person .... for an offence, subsections (2) and (3) below apply unless --

(a) the accused's guilt is not in issue; or

(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

...."

Section 35(2) provides:

"Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution satisfy itself .... that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question."

Section 35(3) provides:

"Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question."

13. As we have explained, no issue is taken about the process adopted by the judge or the language in which he gave an appropriate direction. The single issue in the appeal is whether the mental condition of the appellant made it undesirable for him to give evidence, so that he fell within the protective ambit of section 35(1)(b).

14. In order to sustain that submission, and with the agreement of both sides, evidence was provided for the judge. It took the form of a report from Dr Windgassen, a Consultant Psychiatrist, dated 13 November 2007, and a report from Dr Ronan Brennan, a Consultant Forensic Psychiatrist, dated 12 March 2008. Neither gave oral testimony. There are a number of features in the report of Dr Windgassen on which reliance was placed before the judge and is placed before us by Mr Longworth on behalf of the appellant. In his report Dr Windgassen said this:

"10 OPINION

10.1 .... there is no evidence that Louie Charisma is 'under disability' in relation to his forthcoming trial.

10.2 However, it is my opinion that Louie Charisma suffers from a psychotic illness, characterised by seemingly vague but possibly much more systematised persecutory delusions, auditory hallucinations and a subtle degree of thought disorder."

In relation to the appellant's mental state, the doctor said:

"8.8 Cognitively he appeared intact on gross testing and he seemed of above average intelligence."

Particular attention was focused by Mr Longworth on this observation:

"10.3 .... Whilst it is not my role to comment on his plea, it is my opinion that Louie Charism is a naive, vulnerable and easily influenced individual who does not impress as mendacious or manipulative, and who may well be speaking the truth."

Mr Longworth submits that the doctor there appears to be accepting that the claimed loss of memory may well be true. It is far from asserting that it is true, and equally far from asserting any particular condition to which the loss of memory may be attributed.

15. Dr Brennan took a different view. He accepted that the appellant suffered from a mental illness within the meaning of the Mental Health Act 1983. The most likely diagnosis was paranoid schizophrenia. He expressed the opinion that, notwithstanding that mental illness, the appellant did not currently require transfer to a psychiatric hospital. He said that he explored the appellant's history in very great detail and then made this observation:

"12.3 Although Mr Charisma describes subjective difficulties with his memory, suggesting that they result from previous head injuries he has allegedly suffered in June 2007, there is no collateral information to support this."

Dr Brennan set out a number of assertions made by the appellant and concluded a little later in the paragraph:

"On gross testing of Mr Charisma's cognitive functioning I formed the view that he was orientated with intact immediate and long-term memory. Although he suggested that he was unable to recall new information which may suggest a short-term memory problem I found his responses inconsistent and unconvincing raising suspicion that he may be exaggerating problems with his memory. This may be relevant with respect to differing accounts of the alleged offence that Mr Charisma has given ...."

It is relevant to record that Dr Brennan believed that the appellant was capable of instructing his solicitors. He concluded that in relation to his ability to follow court proceedings, he did not believe that his psychotic symptoms had seriously impacted on the appellant's ability to concentrate. Notwithstanding the appellant's suggestions of memory problems, the doctor concluded that he did not accept that this was objectively the case (at any rate based on his analysis of the appellant at interview). His view was that the appellant was capable of following proceedings in court.

16. Having considered the material before him, Judge Hammond summarised the issues before him and addressed the question whether on this evidence the appellant's mental condition made it undesirable for him to give evidence. He summarised the position and rejected the application that he should not give any direction under section 35 of the 1994 Act. That decision is criticised. The basis of the criticism is that the judge failed to appreciate the consequence of his ruling, in particular in the context of what might have happened if the appellant had given evidence and denied his loss of memory, and asserted that his loss of memory was based on the taking of drugs and the consequences of head injuries.

17. Again, we must look at the background. It is true that the appellant was subject to a degree of mental illness. Nevertheless, he was fit to attend his trial and to give instructions to his legal advisers. The precise impact on his memory of the events on the night of the alleged offences was (to put it no higher) in issue. Certainly there was no consistent view between the psychiatrists that he was suffering from the loss of memory which he was asserting. There were grounds for doubting the accuracy of his claim. He appeared to his counsel to have understood precisely the consequences of a decision not to give evidence. Approaching the case in the round, it is difficult to avoid the conclusion that, in reality, the appellant had made a firm and settled decision that he would not attend trial or give evidence, whatever happened, and that, notwithstanding the advice given by counsel, he would not, and there was no likelihood that he ever would, change his mind.

18. It is not suggested on the appellant's behalf that this settled decision resulted from mental illness. If, however, his loss of memory was genuine, then he was entitled to give evidence that he could no longer remember anything that had happened or indeed what he had actually said when he was interviewed by the police. If he had given that evidence he would have been open to cross-examination and the issue of whether or not the loss of memory was genuine would have been examined. The jury would have assessed whether or not the asserted loss of memory was genuine and would have evaluated the evidence at trial in the light of their conclusion on that issue. If genuine, that would have been taken very much into account. The jury would not have held it against him that he was unable to say anything about events on the night in question. A genuine loss of memory would have precluded him from doing so. They would have evaluated the evidence of the complainant in the light of what the appellant had said in his police interview.

19. If, on the other hand, the jury had concluded that the asserted loss of memory was a smoke screen and false, then it would have been open to them to take that into account in deciding whether the assertions made by the appellant to the police in his interview were true (or any more true than his assertions of loss of memory). We accept that medical evidence might have been admissible to enable the jury to understand the appellant's condition as seen by the doctors and its particular impact on his memory so as to help them formulate their own conclusion. It would not, we think, have been open to the doctors to decide that question. They had formed different views.

20. What should the judge have done when faced with this situation? It was not suggested that there might have been damaging consequences to the appellant's mental health had he given evidence to the jury. Nor was this a case in which the evidence of loss of memory was as unequivocal as it might be if, for example, following the alleged incident there had been a major trauma involving brain damage to the appellant after the conclusion of the police interview. All that might have produced a different result.

21. However, standing back and looking at the evidence that there is, it seems to us that the judge cannot be faulted for his conclusion that there was no basis which required him to take a different course to that which normally obtains when section 35 is established. We agree with the judge's view that there was no evidence which should have led him to the conclusion that it would be undesirable for the appellant to give evidence by reason of his mental condition.

22. That being the case, the single ground of this case must fail and the appeal will be dismissed.

23. We have one observation to add in relation to Michael West's case. As we indicated at the start of this judgment, West is not present. Each member of the court had read the papers and considered the case in some detail before it became apparent that the renewed application could not be listed today.

24. We shall invite counsel who is acting for West to remind himself and to remind the applicant of the court's power to order that some time served should not count if the full court hearing the renewed application comes to the conclusion that this application is and always was without any merit -- in reality, hopeless.

25. Having made that observation, if the application continues to be renewed it must be listed before a constitution which does not include any member of the current constitution.

___________________________________________