Mulindwa, R. v

This application for leave to appeal against conviction raises the important issue of the extent to which a psychiatrist or a psychologist can properly comment to the jury on the presentation in evidence of a mentally disordered defendant.

On 27 November 2015, in the Crown Court at Kingston-upon-Thames, the defendant was convicted by the jury of engaging in conduct in preparation of terrorist acts, contrary to section 5(1) of the Terrorism Act 2006. It was common ground that at the time of the trial the defendant was suffering from a psychotic disorder, paranoid schizophrenia. On 21 December 2015, he was sentenced by Judge Lodder QC to six years' imprisonment with associated relevant orders. He renews his application for leave to appeal against conviction, following refusal by the single judge. The case came before the Full Court on 2 November 2016, when Mr Winship appeared pro bono for the defendant, and Mr Jameson for the prosecution. It was apparent that further consideration needed to be given to one particular aspect of the case, and for that reason the application for leave was adjourned, and a representation order granted. The case was fully argued before us on 15 February 2017 and we reserved judgment. We are grateful to counsel for their submissions, both written and oral.

The sole issue in the appeal is whether the judge was wrong to rule, in advance of the defendant deciding whether or not to give evidence, that, in the event that he chose not to, it would be appropriate to give an adverse inference direction to the jury pursuant to section 35 of the Criminal Justice and Public Order Act 1994. The defence submitted, by reference to section 35(1)(b) that, due to his mental health, it would be "undesirable" for the defendant to give evidence, in which case the section 35 direction should not be given. The judge ruled that he did not find that it was "undesirable" for the defendant to give evidence and, accordingly, if the defendant failed to give evidence such a direction would be given. Part of the judge's reasoning was that the defence could, if they wished, call the psychologist who had examined and reported upon the defendant to explain to the jury the difficulties the defendant might face in giving evidence. It was this aspect of the case, and its potential ramifications, which raised issues requiring careful consideration.

The defendant did not give evidence. The section 35 direction was given, in terms which do not attract any criticism, and he was convicted.

In May 2013, the defendant was admitted to Springfield Hospital in South London as a psychiatric referral diagnosed with schizophrenia. In June 2013, his condition was sufficiently stable to allow him to be discharged. On 27 August 2013, he received a custodial sentence for an unrelated drugs matter. At around that time he appeared to convert to Islam.

The defendant was re-admitted to Springfield within a week of his sentence. His mental health deteriorated and, in October 2013, he was transferred from Jupiter Ward to a locked ward where he remained until April 2014. Thereafter, he was transferred back to Jupiter Ward where he stayed until September 2014.

On 8 September 2014 he was discharged from hospital on licence. Within seven days he went missing from his home address and, on the 17 September 2014, he was arrested at Heathrow Terminal 3 on his way to Mogadishu, Somalia.

Police attended his home and recovered a tablet computer and a cash withdrawal slip for £500 taken out on the 5 September 2014. They did not find his passport.

The tablet computer was analysed. On the 14 September at 7.36 am the defendant had accessed a website called "Jihad and Hadith" which set out the rewards for undertaking Jihad, martyrdom and suicide. Less than a minute later there were searches on Google for "Reward for doing Jihad" leading him to a site called "Islam Watch" which was critical of the extremist interpretation of Jihad. It was the prosecution's case that the defendant's sympathies were aligned with the first of those two accessed sites.

The police retrospectively tracked his movements. In the early evening of 15 September, he had attended Star Travel Agency in Streatham. He handed over £700 in cash to book a flight to Mogadishu via Bahrain and Dubai, leaving on the 19 December at 10 am. He told the travel agent he wanted to visit family in Somalia. He was next seen on camera at Heathrow Terminal 3 on 17 September at 9 am. At 12 noon, the police entered the prayer room at Terminal 3 and found him asleep under a mat. He was arrested for breach of his licence conditions and, subsequently, for the offence for which he stood trial. The police seized a Blackberry mobile telephone which revealed that six films with a terrorist theme had been viewed. Some were documentaries, others showed al Shabaab propaganda. One concerned a United Kingdom Jihadi who went to join a terrorist group in Syria.

The prosecution case was that the defendant underwent a period of radicalisation at Springfield Hospital. He would access extremist or terrorist websites, despite the express prohibition on doing so. When staff came to check up on him he would sometimes shut down or otherwise conceal the websites he was visiting. One of the websites was "Syria Mujahedeen".

At the trial, a number of witnesses, primarily hospital staff, said they had seen him on sites appearing to have similar content. Some gave evidence about conversations he had with them about his religion and his practice of it. Some gave evidence of his attempting to convert other patients to his religion.

A Muslim prison officer was called who said the defendant had asked which mosque to go to in order to become an extremist and how to get trained as a suicide bomber. It was accepted this took place at a time when the defendant was extremely unwell, prior to his re-admission to hospital, not having been given his medication whilst in the prison system.

It was not in dispute that the defendant suffered from schizophrenia, that his illness was controlled by medication and that, during his time in hospital, he had expressed an interest in more radical forms of Islam, viewing websites which supported these views. His medical notes were distilled for the jury into a ten-page medical chronology by way of formal admissions.

On 15 December 2014 he was interviewed under caution. He said he was going to Somalia to see his cousin, Joseph, though he was not sure whether he lived in Somalia or Uganda. He said he had spoken to Joseph by telephone about employment. He had only £75 on him and thought Joseph would look after him. He told officers he had been at boarding school in Somalia for three years and was returning to see his family. He denied asking staff, whilst in custody, about how to become a suicide bomber. He claimed that was a lie. He denied looking at al Qaeda websites on the internet. His explanation for the search for "Jihad" on his tablet computer was that others had access to the computer.

The defence case was that the evidence adduced was insufficiently probative of an intention to commit terrorist acts and that it was more probative of him having no settled intention and no formed plan. It was said that the expressions of radical interest whilst in custody or in hospital were tempered by other comments made in the medical chronology. The media content which was found could not have been viewed in the way alleged by the prosecution given the time markings on the websites and films. His confusion and inconsistency in interview was evidence that he had not formed the intent required, and that he was more likely to have formed no real intent at all.

Section 35 of the Criminal Justice and Public Order Act 1994 provides, in so far as relevant, as follows:

The defence submitted that it would be "undesirable" for the defendant to give evidence by reason of his mental condition. That proposition was advanced using the document containing the agreed medical evidence which included, at paras 8-15, a summary of the conclusions in the report of Dr Sarah Birch, a clinical psychologist. Based on her examination of the defendant on 25 August 2015 she had found as follows: 1. He did not fall within the range of learning disabilities. His IQ was, however, in the borderline range (para 9). 2. He appeared to have difficulties concentrating throughout the assessment. His working memory was a significant weakness compared with his broader cognitive functioning. His ability to concentrate may have been affected by his mental health and prescribed medication (para 10). 3. He was fit to plead and stand trial (para 11). 4. He was able to say his full name, the date and where he was. He did not appear to be responding to psychotic experiences but occasionally laughed incongruously and was suspicious about the purpose of the assessment. He was muted in his mood. Towards the end, he began to be vaguer and shorter in his answers as though tiring and losing concentration (para 12). 5. In performing a series of tests, his ability to sustain attention, concentrate and exert mental control, were areas of significant weakness (para 13). 6. He had an average understanding and reasoning in relation to the legal system. He was unlikely to have a rational understanding of the proceedings against him and limited appreciation of how he was likely to be treated in the course of the legal process. His ability to have a rational understanding of the proceedings would be hampered by his psychotic illness rather than by his level of cognitive functioning (para 14). 7. His ability to concentrate was variable but that could be due to his mental health and his prescribed medication (para 15).

In addition, Dr Birch gave evidence on the voir dire, having re-examined the defendant and produced a short addendum report on 25 November. She stated that slowing the proceedings down would assist the defendant, but the provision of an intermediary might exacerbate the difficulties he faced in giving evidence. She was concerned that if he gave evidence the answers he provided might be unreliable in the sense that they were the product of his apparently ongoing hallucinations. In answer to questioning about whether his answers would be reliable, she said:

The defence submitted that it was "undesirable" he should give evidence because of the unreliability of any evidence he might give. Focussing on that issue, a number of submissions were made to the judge: 1. The value of the defendant's evidence needed to be considered. 2. That should take into account what he had said in interview under caution and the manner in which it was said. 3. The court should consider whether the special measures available would in fact enable the defendant's effective participation in the case. 4. "Undesirability" should be addressed looking at the circumstances of the defendant's past and current presentation, his borderline IQ, his compromised ability to concentrate, his weak working memory and mental control and his lack of rational understanding of the proceedings, all of which was overlaid with a diagnosed mental illness for which he was receiving anti-psychotic medication. 5. If a direction to the jury, as to how they should approach his evidence, contained a large caveat about his medical history, that might be a good indicator of undesirability.

The judge had his attention drawn to the leading authorities, namely, R v Tabbakh [2009] EWCA Crim 464; (2009) 173 JP 201, and R v Dixon (Jordan) [2013] EWCA Crim 465, in which the approach in R v Tabbakh was approved. In R v Tabbakh, it was said that in assessing whether it was undesirable for the defendant to give evidence the court should look beyond a damage to health test; all the relevant circumstances should be considered together in deciding that very broad question. Reference was also made to O'Donnell v United Kingdom [2015] 61 EHRR 37, where the weight of circumstantial evidence against a defendant that called for an explanation formed part of the rationale for holding that there was no unfairness and no breach of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in giving an adverse inference direction. The availability of special measures was endorsed as an important factor for the court to consider.

On 25 November 2015 the judge ruled that he was not satisfied it would be undesirable for the defendant to give evidence and accordingly a section 35 direction would be appropriate if he chose not to give evidence. The judge did not want to delay the jury by giving his reasoned ruling at that stage. He observed that Dr Birch was still at court and available should the defence wish to call her, and they could do so first, before the defendant gave evidence, in order to give a brief outline to the jury. If, on the other hand, the defendant decided not to give evidence, the judge suggested that it would be necessary for counsel to agree "something that encapsulates the relevant material", assuming the defence did not choose to call Dr Birch. In other words, and importantly, the judge was envisaging that Dr Birch could give evidence, at least in general terms, of the difficulties the defendant might face in giving evidence by reason of his mental state.

The defendant chose not to give evidence and the defence did not seek to call Dr Birch. However, the jury were provided with evidence on the topic from Dr Birch in the form of a document headed "Agreed facts 2". This document recited that Dr Birch had examined the defendant on 25 November 2015 in order to update the court as to his presentation in view of the passage of time since her last interview with him on 25 August 2015. She found that his presentation and test results were broadly similar although she noticed some deterioration in his mental state. She confirmed that his level of cognitive functioning was in the borderline range of learning difficulties. She found that he was able to remember words, manipulate numbers, copy shapes and write a sentence. He was able to give a reasonable account of his prison routine. She indicated, however, that if he were to give evidence, she would be concerned whether his diagnosed psychotic illness was impacting upon his answers. She saw signs in the examination that he may been responding to internal or external stimuli. The presence of such stimuli might affect the reliability of the answers to the questions put to him. In her view, the document concluded, the pressure of giving evidence before the court would adversely affect the quality of his evidence.

The judge gave his reasons for his ruling on 27 November. He summarised the effect of the evidence of Dr Birch and, in particular, her evidence of the examination on 25 November. She had said that the defendant was guarded because he was suspicious or was responding to external or internal stimuli. He was thinking through what answer to give in response to some form of stimulus. He looked away to respond to something, perhaps, an internal voice. She explained that he did not necessarily get the point to the question when first asked, but often did so when it was explained to him in more detail. The shorter the time he was required to concentrate, the better. Most of the time, with some difficulty, he could give a coherent response. Simple questions alone would help. For short periods of time her concern would be less and such an approach would help. She felt an intermediary would not be helpful and was not necessary. He mumbled and looked at the floor, and this could be misinterpreted, but if the jury were told this was a feature of his illness, that would help explain his behaviour.

The judge referred to the authorities we have mentioned, observing that in each the defendant suffered significant mental health, IQ and/or cognitive difficulties arguably more severe than this defendant. In each case, the judge said, a restrictive approach was taken in determining whether it was undesirable for a defendant to give evidence and in each case the decision to give a section 35 direction had been upheld on appeal.

The judge considered whether, with adequate safeguards, the defendant was able to give evidence. He concluded:

It is submitted that the defendant's unreliability as a witness is a manifestation of his mental illness and psychological impairment. It is submitted that a detailed examination of the circumstances of the defendants in the authorities already mentioned highlights a distinguishing feature of the defendant's case. Whilst it is accepted that he may be less psychologically impaired and have fewer obvious difficulties in presenting his evidence than the defendants in those cases, his ongoing mental disorder, though medicated with a powerful long term anti-psychotic drug, presented a different problem, namely the concern that some of his answers were the product of the symptoms of his psychosis, that is internal or external voices directing him, and that, accordingly, the jury may or may not be able to rely on his evidence taken at face value. The potential need for Dr Birch to give evidence to explain to the jury why they might wish not to take some of his evidence at face value, when considering his credibility, is said to present a novel problem where a defendant had been assessed as fit to plead and stand trial.

It is submitted that normally a jury is required, without expert evidence, to assess the credibility of a witness by considering his evidence, the manner of its being given, and the surrounding circumstances, however evidenced. The judge in this case envisaged that, in order to be fair to the defendant, the jury might require the assistance of a psychologist to advise them that they might wish to regard part of his evidence as untrue, or unreliable, and yet not let it affect their judgment of his credibility because his unreliable evidence was a manifestation of his mental illness. It is said that this contradicts the axiomatic principle which precludes the receipt of "expert" evidence on whether or not a witness is to be believed. It is said that, if the only way in which the defendant could fairly give evidence would be by the introduction of expert evidence to explain to the jury why some of his evidence might be unreliable, then it could not be other than "undesirable" for him to give evidence.

Counsel helpfully summarised the effect of the authorities including, at para 11 of R v Tabbakh, the following:

At the heart of this proposed appeal lies the concern expressed by Dr Birch about the defendant's reliability, which the judge accepted, and the propriety of the course proposed by the judge to remove that concern were the defendant to give evidence. As we have explained, it is that issue on which further argument was required.

On behalf of the defendant Mr Winship accepts that, in principle, there may be circumstances in which it is permissible for the jury to hear evidence from a psychiatrist or a psychologist to explain the manner in which a witness may have difficulty in giving evidence so as to affect his reliability. However, he submits that there are two potential difficulties with the judge's approach in this case in ruling that if the defendant gave evidence Dr Birch could give evidence "as necessary" along the lines indicated.

First, in such circumstances Dr Birch would in effect be giving evidence to impugn the credibility, veracity or reliability of the witness on whose behalf she was being called. That would offend the general prohibition on a party impeaching his own witness. Second, the permissible scope of Dr Birch's evidence remained unclear. Could she, for example, have been asked to provide an interpretation, answer by answer, of what the defendant said, effectively giving her opinion whether an answer was a lie, partially untrue, or an incorrect but honestly held delusion? It is submitted that by, the words "as necessary", the judge was, at least, not ruling this out. Mr Winship submits that the judge plainly regarded the potential evidence of Dr Birch as an important safeguard to ameliorate the process of the defendant giving evidence. If the judge's assessment of the scope of her potential evidence was wrong, then it must follow that his ruling was flawed. The section 35 direction should not have been given, and the conviction cannot be safe.

On behalf of the prosecution Mr Jameson submits that on the authorities the judge was correct to rule that Dr Birch could give evidence, in general terms at least, of the difficulties the defendant faced in giving evidence. The defence chose not to go down that path, but the jury nevertheless had the additional agreed facts which enabled the defence to submit to the jury that there was a good reason why the defendant had not given evidence.

We have considered these submissions carefully. As a matter of general principle, it was held by the House of Lords in Toohey v Metropolitan Police Comr [1965] AC 595 that medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to the general opinion of the unreliability of the witness but may include all the matters necessary to show not only the foundation of and reason for the diagnosis but also the extent to which the credibility of the witness is affected. There are, however, necessary limitations to the principle. For example, such evidence will not be permitted to amount to "oath helping": see R v Robinson [1994] 3 All ER 346. But sometimes a jury may legitimately require expert assistance in understanding the presentation of a witness with a particular disability. For example, in R v VJS [2006] EWCA Crim 2389 the prosecution were permitted to call a paediatrician to explain the presentation of the evidence of a young complainant in a sexual case who was autistic. The court stressed that it remained for the jury to decide whether or not she was to be believed in the light of all the evidence.

In R v Tabbakh we note that although the defendant chose not to give evidence, and the judge gave a section 35 direction, the jury heard evidence from psychiatrists that the defendant might not do himself justice in the witness box because he might not be able to retain control of himself and might not remember sufficiently parts of his evidence.

We are satisfied that there is a clear dividing line between evidence from a psychiatrist or a psychologist which may legitimately provide the jury with necessary assistance in understanding the presentation of a defendant in the witness box, and impermissible evidence from such witnesses which amounts to no more than an expert's opinion on the credibility or truthfulness of the evidence of the witness, an issue which must remain a matter exclusively for the jury. The former is permissible because it is designed to enhance the ability of the jury to perform its fact finding role. The latter is impermissible because it has the effect of suborning the jury's fact finding role and substituting for it the decision of the expert.

Consistent with the authorities, examples of which are given below, only in rare cases will it be appropriate for such evidence to be given, and there must be a proper medical basis for such a course. The defendant must be suffering from a recognised mental disorder, the impact of which may affect his presentation in giving evidence. It must be recalled that in appropriate circumstances a court can insist that counsel ask questions in a straightforward manner (as Dr Birch suggested in this case as set out at para 19 above) or the court can permit an intermediary to assist in accordance with the provisions set out in the Criminal Practice Direction 2015 at paragraph 3F.11-3F.16: see R v Rashid [2017] EWCA Crim 2; [2017] 1 WLR 2449 at paras 73-88 - a course that Dr Birch did not think necessary.

For example, in R v Pinfold [2003] EWCA Crim 3643; [2004] 2 Cr App R 32, in the context of the reliability of the evidence of a co-accused called by the prosecution, this court said (at para 16, per Lord Woolf CJ):

In R v Henry [2005] EWCA Crim 1681; [2006] 1 Cr App R 118, in the context of whether there was an intent to kill, the fact that the defendant, who suffered from no mental illness and could not be regarded as mentally defective, had an IQ of only 75 did not render admissible the evidence of psychologists on the issue of intent or on the credibility of his account of lack of intent.

In R v H [2014] EWCA Crim 1555; [2014] Crim LR 905, the issue was the admissibility of expert evidence from a psychologist as to the reliability of the account of a complainant in a sexual case. Sir Brian Leveson P stated the law very clearly, at para 26:

There is no reason to suppose that the approach envisaged by the judge in his ruling was other than intended to fall on the permissible side of the line. The judge had evidence from psychiatrists that the defendant was suffering from a psychotic disorder (paranoid schizophrenia) and being treated by medication which, for the most part, kept his hallucinations under control, or to a minimum. There was also evidence from a psychologist that there were, on occasions, clear behavioural signs, identified by her, that he may be responding to hallucinatory voices. If they occurred whilst he was giving evidence, it would be clear that something was amiss. The expert evidence of the psychologist would explain to the jury what was, or may be, occurring to assist them in considering his evidence and the way he gave it.

In our judgment, it was not an error of law for the judge to consider that, were the defendant to give evidence, these difficulties could be addressed by giving the psychologist the opportunity to explain to the jury that certain ways of behaving, or responding to questions, were a feature of the recognised mental illness from which he suffered, despite its being largely controlled by medication. Such evidence from the psychologist, strictly limited as to scope as the authorities make clear, would provide the jury with information which would enable them to form a view on the reliability of the defendant's evidence as a whole, even though they might conclude that certain parts of his evidence might be unreliable. What Dr Birch could most certainly not have done, if the defendant gave evidence, was provide the jury with any opinion on his credibility and reliability or a commentary on the answers he had given, expressing her opinion on which answers were reliable and which unreliable.

The judge did not elaborate on what he meant by the words "as required" in describing the assistance he would permit Dr Birch to give the jury. But we are satisfied from the context of his initial decision, and from the reasons he later gave, that he was not envisaging more than a strictly limited explanation to the jury by Dr Birch, before the defendant gave evidence, of any potential features of his presentation in the witness box that they should have in mind as a result of his recognised mental disorder. We were told by counsel that the scope of any further evidence beyond that was never canvassed in the argument in relation to section 35. Both Mr Winship and Mr Jameson accepted in their oral submissions before us that it would have been unobjectionable for Dr Birch to give evidence in this limited way, provided she did so before the defendant gave evidence. Neither suggested that it would have been permissible for Dr Birch to give evidence by way of opinion or commentary after the defendant's evidence, and we are sure that neither would have asked the judge to permit such a course. That theoretical possibility, if it existed at all, cannot have influenced the defendant's decision whether or not to give evidence, or the advice he received on that matter from his counsel.

In the end the defendant had the best of both worlds. The jury were presented with the evidence which Dr Birch would undoubtedly have been permitted to give had she been called (whether or not the defendant gave evidence) to explain on the strictly limited basis set out in the authorities her opinion about his continuing mental state. The defence were able to use that material in submitting to the jury that they should not hold it against the defendant that he had not given evidence. The judge emphasised this strongly in his section 35 direction. At pp 6e-7a the judge said:

As to the propriety of Dr Birch giving evidence before the defendant, section 79 of the Police and Criminal Evidence Act 1984 provides that where the defence intend to call two or more witnesses as to the facts of the case, and those witnesses include the accused, the accused shall be called before the other witness or witnesses unless the court in its discretion otherwise directs. It would plainly be appropriate, in the court's discretion, to allow a psychiatrist or a psychologist to be called before the defendant in order to explain for the jury the effect of his recognised mental disorder on his likely presentation when giving evidence in the strictly limited way set out in the authorities.

For all these reasons we are satisfied that there was no arguable error of law in the judge's conclusion that, with the special measures he identified, it was not "undesirable" for the defendant to give evidence and that, if he failed to do so, the jury should be directed that they might draw an adverse inference from that failure.

Accordingly, despite Mr Winship's able and careful submissions, we have concluded that there are no arguable grounds for concluding that this conviction is unsafe. We therefore refuse the renewed application for leave to appeal.