APPEAL AGAINST CONVICTION AND SENTENCE BY CHARLES MURPHY AGAINST HER MAJESTY;S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 118
HCA/2015/003044/XC
Lord Justice Clerk
Lord Drummond Young
Lord Malcolm
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
CHARLES MURPHY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Findlay, QC; Young; Bridge Litiigation
Respondent: Erroch AD; Crown Agent
1 December 2016
[1] The appellant was convicted on 30 January 2015 after a trial lasting three days. He was convicted of seven charges involving serious assault, rape, lewd and libidinous practices, indecent assault and assault with intent to rape. There was no issue raised about the health of the appellant at any preliminary hearing. At the commencement of the trial the judge noted within the papers a letter from the appellant’s GP suggesting he was in poor health. There was no mention of any mental health issues. In view of the appellant’s age and apparent frailty, the trial judge asked the appellant’s solicitor advocate if there was a psychiatric report or whether there were any issues over his fitness for trial. She was told that there was no psychiatric report but that the solicitor advocate had confirmed that the appellant was fit for trial and the defence was ready to proceed. At the conclusion of the trial the judge adjourned the proceedings until 26 February 2015 for a Criminal Justice Social Work Report (CJSWR) and remanded the appellant in custody. He had been on bail during the trial.
[2] On 19 February 2015 the Court received a letter from the social work department indicating that they were unable to prepare a report due to the poor presentation of the appellant and his apparent dementia. They recorded that the prison social worker had expressed concerns about his mental health and that he “appeared to fail to understand the Court process, what he had pled, or why he was due in Court on 26 February 2015”. It was felt that his mental status required to be clarified by means of a psychiatric assessment.
[3] At the diet on 26 February Mr Stephenson, solicitor advocate for the appellant, advised the Court that in May 2014 the agents had received a letter from a Dr Philipson (in fact it was a Dr Matthews), diagnosing the appellant as suffering from “mild Alzheimer’s” but who had advised by telephone that the appellant was fit to stand trial. Mr Stephenson indicated that he had experienced no difficulty in obtaining instructions during the trial and that in his view the appellant had deteriorated since his incarceration.
[4] The Court ordered investigations, the result of which were reports from two forensic psychiatrists concluding that: (a) the appellant suffers from mixed Alzheimer’s and vascular dementia; (b) he is incapable of giving instructions or participating effectively in the sentencing process; (c) he was likely to have been unfit at trial; (d) his disorder is progressive and treatable only with palliative care; and (e) there is no medical basis for compulsory measures of treatment.
[5] The trial judge was also provided with a chronology by the defence agents. The defence agent, Ms Gill, was also the solicitor advocate instructed as Mr Stephenson’s junior at trial. From that chronology and the submissions made by the advocate depute, the trial judge ascertained that:
(a) the Crown had obtained a report from the appellant’s GP on 12 March 2013 which indicated various health problems but nothing to preclude him from standing trial;
(b) on 5 May 2014 the solicitors were advised of the diagnosis of mild dementia or Alzheimer’s;
(c) on 13 May 2014 the defence agent spoke to Dr Matthews who confirmed the
diagnosis. It was indicated that if they wished confirmation of this in writing “for practical purposes he (the appellant) should need a report from a forensic psychiatrist”. No such report was obtained;
(d) on 1 June 2014 at consultation with the solicitor advocate then instructed,
Mr Iain Paterson, a letter confirming the diagnosis was produced. A file note recorded that “we have no concerns about client’s ability to understand us so no further report requested or follow up required”. Mr Paterson reported to the Court that he had been satisfied at consultation that the appellant understood the process and a psychiatric report was unnecessary;
(e) the Crown were advised of the diagnosis by letter of 5 May with the suggestion that they might wish to obtain a report from the doctor concerned. No such report was instructed.
[6] The psychiatric reports which the court had were from Dr Rajan Darjee of the Orchard Clinic and Dr Fergus Douds from the State Hospital. In due course the court obtained a CJSWR and a Section 210A Risk Assessment. A further psychiatric report dated 14 July 2015 from Dr Isobel Campbell was produced by the defence. Dr Campbell agreed in all essentials with the other psychiatrists.
[7] Once they had arranged for other representation the solicitor and solicitor advocates involved in the case withdrew from acting. New agents were instructed and Mr Findlay, QC appeared on behalf of the appellant. At an adjourned hearing there was discussion as to further procedure. Mr Findlay advanced a plea in bar of sentence. The Crown suggested that the sentencing proceedings remained part of the trial, and that the Court could discharge the trial and order an examination of the facts with a view to a mental health disposal under the provisions of Part 6 of the Criminal Procedure (Scotland) Act 1995. The trial judge concluded that such a course was not open to her in circumstances where a verdict of the jury had been returned and recorded. In the absence of a need for treatment, there was no basis for the Court to make a compulsion order. Nor did the trial judge consider it feasible to adjourn sentence pending further proceedings, such as a petition to the nobile officium, this being incompetent whilst there remained an outstanding statutory right of appeal. The trial judge accordingly proceeded to sentence the appellant to five years imprisonment on charges 2-6 and 9 with a concurrent sentence of two years on charge 7.
Grounds of Appeal
[8] The grounds of appeal assert that the appellant was assessed in March 2014 when a CT scan of his brain revealed changes in keeping with the diagnosis of mixed dementia (Alzheimer’s and vascular). It is asserted that this is a degenerative condition which would have been worse at the time of the trial than it was in March 2014. It is likely that he was unfit to stand trial and ought not to have stood trial, being unfit to instruct a defence or take part in its preparation. There has thus been a miscarriage of justice. A further ground of appeal asserts inadequate professional representation, it having been the duty of his professional representatives to satisfy themselves that he was fit for trial. Having been alerted to his condition they should have investigated the matter. Had they done so, they would have ascertained that he was not fit to stand trial. A third ground of appeal asserts a duty on the Crown to make such investigations on the basis that the Crown has a duty to ensure that the accused receives a fair trial. The Crown were aware that the appellant suffered from dementia and that his mental state had not further been investigated. It was therefore the Crown’s duty in the public interest to do so. Finally, it is asserted that the trial judge erred in proceeding to sentence in the circumstances and that in any event the sentence was excessive.
Preliminary Hearings
[9] The preliminary hearings were largely taken up with an issue as to whether the Crown had renounced the right to prosecute in respect of some additional charges which originally featured in the indictment. On 22 January 2015 there was a motion to adjourn the trial to secure the services of the solicitor advocate who was originally instructed and reference was made to the fact that the “accused is 77 and has health difficulties”. No mention was made of his mental health.
Psychiatric Reports
27 April 2015 – Dr Rajan Darjee, Consultant Forensic Psychiatrist, the Orchard Clinic, Edinburgh
[10] Dr Darjee noted that a cognitive examination (known as Addenbrooke’s Cognitive Examination) carried out in March 2014 had indicated “a significant cognitive impairment” with a score of 72/100. The findings of a CT scan that same month were in keeping with the diagnosis of mixed dementia. It appeared that there had been no psychiatric assessment prior to the trial, all that was available being a letter from Dr Annie Matthews (referred to as a speciality doctor with the NHS in Greater Glasgow and Clyde) in which she set out a diagnosis of mild mixed dementia and stated that if a psychiatric report was required, this should be sought from a forensic psychiatrist.
[11] Dr Darjee repeated the Addenbrooke’s test, the results now showing a score of 54/100. Particularly poor scores were recorded in the areas of attention, memory and verbal fluency. In discussion with Dr Darjee the appellant knew he had been convicted of sexual offences, assumed he had pled not guilty but could not remember if this was the case. He could not say when he was convicted or when he was next in court. He remembered a female judge but could not name his solicitor or recount any conversations with his solicitor. Dr Darjee noted that the appellant had a psychiatric history, having been diagnosed with a personality disorder in 1972, but subsequently discharged from psychiatric attendance in 1992. Dr Darjee noted that the appellant suffered from dementia and a mental disorder. He was incapable of understanding the sentencing process or giving instructions. His cognitive condition and ability to function on a daily basis would decline. He had global deficits in cognitive functioning with particular problems with memory and attention. It appeared that the level of cognitive impairment had deteriorated since he was assessed in March 2014. It was unclear whether there had been a gradual deterioration – common in Alzheimer’s, or a sudden, more recent deterioration – which can be found in vascular dementia.
[12] On the critical question of his level of functioning at the time of the trial, Dr Darjee expressed the following opinion:
“In terms of what his condition was likely to have been at trial, it is difficult to be definitive as his level of cognitive impairment may have deteriorated since January. If his mental state then was as it is now, then in my view, although he may have been able to understand the nature of the charge (over a very short period of time) and understand the requirements to tender a plea to the charge, and the effect of such a plea (again over a very short period), he would not be able to understand the purpose of and follow the course of the trial. He would not be able to understand the evidence that may be given against him, and he would not be able to instruct or otherwise communicate with his legal representatives. As indicated above, the main reason for this is his significant problems with attention and memory. He is not able to retain new information and he does not have the cognitive capacity to process this new information in a way that he would be able to make reasoned decisions. So as he is at present, he would be unfit for trial.
He already had significant problems with his attention and memory when he was assessed in the community in March 2014. … It is likely that when he came to trial his attention and memory were poorer than when they were assessed in March 2014 and were probably similar to his current level of cognitive functioning. Therefore it is my view that it is likely that he was unfit for trial. There should have been an expert psychiatric report available before his trial to assess this issue.”
29 May 2015 – Dr Fergus Douds, Consultant Psychiatrist, the State Hospital
[13] Dr Douds repeated the Addenbrooke’s test, this time with the result of 65/100. This was consistent with a degree of fluctuation in the level of functioning which is not atypical in a condition such as the appellant’s. The examination demonstrated major issues with memory and verbal fluency. The appellant said “I can still remember things when I was a boy, but I can’t tell you what I had for dinner yesterday”. He could narrate some details of the charges against him but could not name his solicitor and otherwise the proceedings were “a bit of a blur”. Dr Douds’ opinion as to diagnosis and prognosis echoed those of Dr Darjee. On the question of whether he had been fit to stand trial, his opinion was as follows:
“With regards to whether Mr Murphy was fit to stand trial, I would opine that this becomes a matter of speculation and it is simply now not possible to determine his level of competence at that time. However, I would share Dr Darjee’s concern about his fitness to stand trial, given that at assessment in March 2014, Mr Murphy was presenting with significant cognitive impairment, compatible with a diagnosis of dementia at that time. “
15 May 2015 – Supplementary Report from Dr Douds following a conference with counsel
[14] In this report, Dr Douds amended the level of risk presented by the appellant from “extremely low” to “low”. He also stated:
“In relation to whether Mr Murphy was fit to stand trial earlier this year, I would again state that it is impossible to definitively say whether or not he was, but given the findings of the cognitive assessment in March 2014 (which pointed then to Mr Murphy being demented) I would very much doubt that Mr Murphy could have been fit to stand trial earlier this year.”
16 June 2015 – Supplementary Report from Dr Darjee
[15] In this report Dr Darjee noted that the appellant continued to have serious problems with his attention and memory. Dr Darjee’s opinion was unchanged:
“It remains my view that it is likely that he was unfit for trial; and that there should have been an expert psychiatric report available before his trial to address this issue.”
14 July 2014 – Dr Isobel Campbell, Honorary Consultant Forensic Psychiatrist, Glasgow
[16] Dr Campbell records that in May 2014 Dr Matthews had recorded information regarding the appellant’s forgetfulness: “He forgets places he has visited and gets mixed up with the names of people.” Dr Matthews had noted in October 2015 that there were family concerns that the appellant had been becoming more forgetful and easily distracted. After 40 minutes of interview with Dr Campbell, the appellant said: “You’re my lawyer, aren’t you?” He was vague and forgetful, but recalled his QC at the trial as a “big… guy” who he claimed had spent minimal time with him. Dr Campbell repeated the cognitive examination with the results of 46/100, the most significant changes being in areas of attention, memory and language. She agreed with the diagnosis and prognosis given by other psychiatrists, and on the question of fitness at trial stated:
“As is indicated in the other psychiatric reports, it is impossible to state with absolute certainty what his state of mind was at the time of this trial. However, on balance of probabilities, it would appear unlikely that Charles Murphy was able to follow trial proceedings and provide appropriate instructions.”
She provided further detail on this matter:
“While it is not possible to be certain regarding his level of cognitive impairment in January 2015, i.e. at the time of his initial trial, it is likely on balance of probabilities that he would have been unable to follow the evidence given against him and would not have been able to effectively instruct his legal representatives. He has difficulty with attention and memory, he conflates information which was demonstrated on my cognitive testing and he is unable to remember what information he has given previously (which was also apparent during my interview with him).”
Dr Campbell also agreed that there should have been an expert psychiatric report prepared prior to commencement of the trial.
Anderson Responses
[17] Anderson Responses were obtained from Iain Paterson, solicitor advocate, who had originally been instructed for the trial; Sukhwinder Gill, the original solicitor who had also appeared as junior and Mr James Stephenson, who had conducted the trial.
Iain Paterson
[18] Mr Paterson was aware of the diagnosis of mild, mixed dementia as at 2 June 2014. He was aware of a letter indicating that for “practical purposes he should need a report from a forensic psychiatrist”. He stated:
I did not consider that Mr Murphy was in any way unable to instruct me, understand the proceedings or provide a clear and coherent account regarding the charges he faced, therefore a report in my view, at that stage, was unnecessary. This decision was made after meeting with him. If I had any concerns at that stage I would have instructed a report be prepared. Ms Gill and I did discuss the issue but it was clear he understood the process.”
[19] Mr Paterson indicated that at the first consultation in June 2014, lasting about an hour, he was able to take detailed instructions from the appellant regarding the circumstances of the case, the complainers, and the allegations. He provided information about potential defence witnesses. Discussion also took place as to the previous prosecution and the question of renouncing prosecution on some of the charges. A second consultation took place in preparation for a preliminary hearing at which the appellant was clear that he wanted precognitions taken from several witnesses. Mr Paterson added:
“I do think we discussed his ability to understand court proceedings although that may have been a discussion between Ms Gill and myself. Again I had no concerns regarding his ability to follow our discussion.”
Ms Sukhwinder Gill
[20] Ms Gill was advised by telephone on 5 May 2014 that the appellant had been diagnosed with mild dementia. She contacted his doctor for information and followed this up with a phone-call. The doctor to whom she spoke was not a psychiatrist. She confirmed the diagnosis and stated that in her opinion the appellant would be able to understand the court process. She had seen the appellant for 30 minutes and had a further appointment scheduled with him in 4 months’ time. The doctor was asked to confirm this in writing and a letter was submitted stating:
“he has a diagnosis of mild mixed dementia … I have discussed this with my consultant who advised that, for practical purposes, he should need a report from a forensic psychiatrist.”
[21] Ms Gill advised the Crown of the diagnosis but was told that, given the terms of a precognition from the appellant’s GP suggesting that there was nothing to preclude his attendance at trial, the Crown would not be instructing a forensic report. She was not aware of his past psychiatric history. At the conclusion of a consultation she discussed the matter with Mr Paterson and “both of us agreed that we had no concerns about the client’s ability to understand us and the court procedure given the extent of detail provided by him”. She provided details regarding some of the information he was able to provide in support of her view that he was capable to provide instructions. This included reference to the prior prosecution and details of defence witnesses. Ms Gill expressed the view:
“I do not consider that Mr Murphy was unable to instruct me from 6 July 2013 until the conclusion of the trial on 27 January 2015. … I had 13 lengthy consultations, have minuted 13 telephone calls, was present for a further two consultations at the preliminary hearing and was present during the 4 day trial.”
[22] When she saw him at court for trial on 22 January 2015 (when the case did not commence) “he seemed more frail and was not as vociferous as he had been on previous meetings” but that was not unusual.
She added:
“The first time I became aware and concerned about Charles Murphy’s inability to give me instructions was when I went to see him in Barlinnie on 15 February 2015 with Mr Stephenson. This was 15 days after the conclusion of the trial. I knew immediately that something was wrong. He was very confused and he did not recognise me or Mr Stephenson. He had lost weight, had a grey pallor and was unable to give me any coherent information whatsoever. In my view there had been a rapid deterioration in both his physical and mental health.”
Mr Jim Stephenson
[23] Mr Stephenson advised that he was informed that the question of Mr Murphy’s fitness to stand trial had been addressed by the previous counsel and that there were no concerns about him proceeding to trial. Mr Murphy was able to give him instructions about particular areas of evidence which he wished to challenge. On each day of the trial there were consultations with the client prior to the commencement of the trial and at the conclusion of evidence during which there appeared to be no difficulty in obtaining instructions. It was only on attending prison subsequently that it was clear that the appellant’s health had deteriorated and on that matter Mr Stephenson agreed with Ms Gill.
Phone records
[28] In the course of the appeal the result of an interrogation of a phone belonging to the granddaughter of the appellant was lodged. This shows significant communication between the appellant’s granddaughter and the instructing solicitor. They include the following text messages:
13 September 2014
“Hi S, sorry to bother u at wkend, Im not long bk from holiday. My grandad has comp confused me about the case. Could u maybe contact me next week if ur available and let me kno wats goin on.”
27 January 2015
“Hi S, i wont call u i know uve had a busy day. I was jst wondering how it went today my grandad cant really tell me anything bcos he cant remember and can only give us bits and pieces that don’t make sense. Its really frustrating. Thanks”
28 January 2015
“Hi s, again my grandad is frustrating me and cant tel me how he feels it went today after donna giving evidence. From wat i can make out 2 charges have been dropped in relation to donna and Charlie, is this correct?”
The solicitor replied that two charges had been dropped, one relating to Jean and the other to Donna.
Further Medical Reports
[29] The psychiatrists involved in the case were provided with copies of the Anderson Responses and commented as follows:
11 April 2016 – Dr Campbell
[30] Dr Campbell responded in relation to each of the responses. First, in relation to Mr Paterson’s response she commented as follows:
“In the early stages of dementia there is a relative preservation of long-term memory i.e. of events that happened many years ago. Therefore Mr Murphy, in June 2014, would have been able to offer a reasonable account about events from his early adulthood.
At my interview in July 2015, Mr Murphy’s clinical presentation and his [cognitive examination] score both suggested significant cognitive impairment and he was in my professional opinion unfit to stand trial. However, even then Mr Murphy remained able to give me an account of events from his early life very similar to that given to Mr Paterson.”
[31] In relation to Mr Stephenson’s response, she observed:
“Mr Murphy’s instruction appears to have been based on his relatively intact memory of events from many years ago and therefore he would have appeared competent to instruct. It is possible that Mr Murphy stuck rigidly to the same account throughout the trial and as a result there was no concern about his capacity to follow proceedings. However, he may in fact have been unable to ‘shift set’ in response to evidence put forward by the complainer.
Not having previous knowledge of Mr Murphy, it would have been impossible for Mr Stephenson to detect any significant change in his level of functioning which might have occurred during the 8 months between June 2014 and the commencement of the trial.”
[32] In relation to Ms Gill’s observations, Dr Campbell noted that there had been a period of 8 months between the diagnosis being brought to Ms Gill’s attention and the commencement of the trial. She added:
“Ms Gill had the longest period of contact with Mr Murphy and had a number of meetings with him. Of the three solicitor advocates involved she was therefore best placed to detect any change in function. She did not observe any change that caused her concern until more than two weeks after the trial concluded.
Ms Gill saw a marked change when she interviewed Mr Murphy in HMP Barlinnie on 15 February 2015. By that stage he was in an unfamiliar environment with strangers around him rather than in his own home with his family offering him support. He was also probably very anxious about the situation and this would have had a further negative effect on his functioning.
It is common for symptoms of dementia to become apparent for the first time when a person is removed from their familiar environment and their long-standing routines are disrupted. Therefore it is not surprising that Charles Murphy presented as much more obviously impaired in HMP Barlinnie. It is also theoretically possible that he had suffered a sudden loss of function due to a vascular event between the conclusion of trial and the interview on 15 February 2015.”
[33] Dr Campbell’s conclusions in summary were as follows:
“In Alzheimer’s disease there is steady progressive deterioration in cognitive function. Long term memory is usually relatively well preserved in the earlier stages and even by July 2015, i.e. when significant impairment was clear on the [cognitive examination] screening test Mr Murphy could still give a detailed account of events from many years ago. However, his ability to register new information was impaired and his capacity to retain and recall new information and his language abilities had deteriorated significantly from the previous testing in March 2014.”
[34] On the critical question of his condition at trial she observed:
“It is impossible to state with absolute certainty what Charles Murphy’ state of mind was at the time of his trial. However given the amount of time that had elapsed since the diagnosis and original testing, it would, in my professional opinion have been prudent to seek an up-to-date assessment of Mr Murphy’s cognitive function prior to trial.
According to his legal team there was no apparent cause for concern during the trial. However, Charles Murphy may in fact have been unable to register, retain and recall new information presenting during the trial process. He also may have been unable to ‘shift set’ and change his instructions in response to evidence put forward by the complainers or may have failed to understand the significance of it. His ability to judge the effect of their evidence may also have been impaired. His cognitive function would have been worse if he was anxious. Given that Ms Gill had noted his deafness I assume appropriate arrangements were put in place during trial to address his hearing problems. If not, this would of course have added to his difficulty following proceedings. Therefore although no problems were apparent to his legal team, Charles Murphy may still have been significantly disadvantaged during trial proceedings because cognitive impairment made it impossible for him to follow proceedings in the same manner as a person unaffected by dementia.”
[35] Dr Campbell suggested that the prison health file should be obtained to ascertain whether any further light could be shed upon the appellant’s condition. These records were obtained and on 1 June 2016 Dr Campbell produced a further report having perused the records. She noted that at reception on 30 January the appellant was recorded as showing anxiety but not confusion. Healthcare records at that time noted “good communication, talking well, has dementia”. The medical risk assessment observed: “No concerns”. On the evening of 30 January a note records “appears alert and orientated at time and place”. The next relevant entry appears to be on 3 March when the social worker was expressing concern about his presentation. The Hall Nurse completed a request for mental health team assessment but noted “have not noted any change in Mr Murphy’s mental state since admission, generally well-kempt man but has poor memory at times which is not new”.
[36] Dr Campbell’s conclusion was that the records provided “disappointingly little” information. She noted that his presentation appears to have fluctuated and records that it is likely that the extent of his difficulties would have been much more obvious during an interview than on casual observation. As to his mental state at trial, she stated:
“It remains impossible to state with absolute certainty what Charles Murphy’s state of mind was at the time of his trial. However, given his diagnosis and the amount of time that had elapsed since the original testing, it would in my professional opinion have been prudent to seek an up-to-date assessment of Mr Murphy’s cognitive function prior to trial. If [cognitive examination] results at that time had shown significant impairment then a full neuro-psychological report should have been instructed including recommendations for any special measures which could have been put in place to support him during the trial process.
According to his legal team there was no apparent cause for concern during the trial. However, in my professional opinion Charles Murphy may well have been unable to register, retain and recall new information presented during the trial and therefore have been significantly disadvantaged because cognitive impairment made it impossible for him to follow proceedings in the same manner as a person unaffected by dementia.”
She considered that the fact that the health team nurse had not observed any sudden dramatic deterioration made it less likely that the appellant had suffered a sudden vascular episode between admission to prison and the consultation with his legal team on 15 February.
1 June 2016 – Dr Darjee
[37] Dr Darjee noted the Anderson Responses in the case and provided his opinion as follows:
1. “I remain of the view, given that it was known that he had a diagnosis of dementia, that he had had contact with mental health services, and that Dr Matthews had recommended an expert report was sought, that an appropriate expert report should have been sought before the trial including an update at the time of the trial.
2. He was clearly unfit for trial by February 2015 when he was seen by his lawyers in prison, confirmed by social work concerns and a prison mental health assessment in March 2015, and by my assessment in April 2015. The fact that he was able to talk in detail about events that had happened sometime in the past (including the alleged offences) does not necessarily mean that he was fit for trial, as in individuals with dementia, long-term memory is usually preserved until relatively late in the course of the illness compared to attention and short-term memory. As noted in my previous report, he already had significant problems in the areas of attention and short-term memory when he was assessed by mental health services in March 2014.
3. It may be that there was a sudden deterioration in his cognitive level after the trial. This may have been due to the vascular component to the dementia which, as I mentioned in a previous report, can progress in a step-wise way with sudden deterioration due to new blood clots. It may be that being in a new, unfamiliar environment (i.e. prison) made him more confused, although by the time I saw him for the first time he had been in prison for over two months.
4. On balance, it remains my view that he was probably unfit for trial, notwithstanding the views expressed by the lawyers. However, as there was no expert assessment before trial, one has to extrapolate from the information available which means there was clearly a possibility that he was fit for trial.
5. So to summarise, my view is that it is likely that he was unfit for trial and there should have been an expert assessment of this issue before the trial.”
2 June 2016 – Dr Douds
[38] Dr Douds noted that the fluctuations in the appellant’s performance on mini mental state examination whilst in prison was consistent with the fluctuations which can occur, particularly in vascular dementia. Recording that a visiting psychiatrist considered the appellant was able to give him a good background history, Dr Douds observed that he told that psychiatrist he had been in prison only for 3 months when in fact he had been in prison for 8 months by then. Dr Douds considered that: “this pointed to the fact that Mr Murphy could present as being superficially plausible.”
[39] In relation to the Anderson Responses, Dr Douds stated:
“I am influenced by the report provided by the three solicitors involved in Mr Murphy’s case. Mr Paterson, and in particular, Ms Gill, spent considerable periods of time with Mr Murphy and did not develop concerns about his ability to give instructions or to follow court proceedings, despite both of them knowing that he had a mild dementia. Given that all three solicitors are experienced practitioners who will have seen a range of vulnerable clients, I think that this is extremely relevant and for me points towards the fact that Mr Murphy was very probably competent before and during the trial, i.e. based on their statements it is my opinion that he was very probably fit to stand trial. However, he seems to have decompensated rapidly after being remanded and there does not appear to have been much doubt about his lack of capacity thereafter. Such a rapid decompensation can perhaps be attributed to two main issues. First, him being moved into a completely unfamiliar (and also probably frightening) environment, away from his home and major social support; such a scenario would usually lead to an increase in confusion in someone with dementia. Secondly, a response to the stress of being remanded and also a potential accompanying deterioration in his mood; these are both factors which could have caused a deterioration in his level of cognitive functioning (due to his existing mild dementia he would have had limited ‘spare’ cognitive capacity to withstand major stress and environmental change).”
[40] By letter dated 30 June 2016 the Crown intimated that it did not intend to support a conviction in this case. The concession was made on the basis of the first ground of appeal only and the Crown recognised that the final decision lay with the Court. The Crown explained that this stance was adopted on the basis that there appeared to be no dispute that the appellant was presently unfit to instruct his lawyers. In the Crown’s view the evidence supported the contention of the appellant that moreover he was unfit at the time of trial. The Crown recorded that, with the exception of Dr Douds, whose most recent report is referred to above, the prevailing medical position was that it was more likely than not that the appellant was unfit at the time of trial. The Crown thought this conclusion might arguably be supported in terms of the telephone records which tend to indicate that for the organisation of attendance at his solicitor’s office, the appellant relied a great deal upon his granddaughter. Although it is a very significant step to disturb the verdict of a jury, the Crown considered that it was not in the interests of justice to support the conviction. Notwithstanding the position adopted by the Crown, at a three judge procedural hearing, the Court appointed the appeal to proceed with a hearing fixed for the purposes of leading evidence from the psychiatrists.
Evidence
[41] Evidence was taken from all three psychiatrists. Dr Darjee and Dr Campbell both spoke to the terms of the reports quoted at length above, and adhered to the opinions stated therein. Explaining his reasons for rejecting the suggestion that the appellant had suffered a rapid and severe deterioration following his incarceration, Dr Darjee stated:
“It is possible for someone to decompensate when they go to a new environment. However, you would expect someone to bounce back when they got used to the new environment. Prison is a frightening environment but it is also a structured environment. I would expect him to improve subsequently, but there is no evidence of that. If anything, there is evidence he was getting worse. If the explanation was that he simply decompensated on admission to prison, it would not account for his very poor level of cognitive functioning two months later when I saw him. …I think it is likely that the lawyers involved missed that he was not necessarily following what was going on. This might be due to the case being focussed on events from the past. In that context, his poor short term memory might have been missed.”
[42] On the memory problems which the appellant suffered, Dr Darjee said:
“The crucial thing is “working memory”, allowing someone to take in what’s happening and put things together regarding what’s going on, and how to decide whether and how to act on it – that was not working well at all… he would not be able to do the quite complicated cognitive tasks required to take in information and decide what to do with it.”
[43] Dr Campbell expanded upon the nature of the appellant’s condition when examined in March 2014. The score of 72/100 represents the results from a number of substitute-tests which enables an evaluation of change to be carried out in relation to specific deficits. In the case of the appellant the March 2014 test had revealed particularly poor scores for memory and verbal fluency, and a poor score for attention:
“The cognitive assessment done by the nurse at the memory clinic indicated that he had a score of 72. The cut off for diagnosis of dementia is much higher than that at 88. By the stage he was seen at the memory clinic, he was already significantly below what would be regarded as cut off. The lower the score, the more likely it is that he is significantly impaired.”
As to what that meant on a daily basis:
“We know that he had difficulty remembering things. He would leave the cooker on; make a cup of tea, forget and make another cup of tea; and he had problems with registration and recall of information. Memory is the crucial part. He also had difficulties with language, particularly word finding.”
[44] By the time Dr Darjee saw him in April 2015 his overall score was 54, with particularly poor scores in the areas of attention, memory and verbal fluency. Dr Darjee noted that when seen in March 2014 he already had significant issues with memory and attention. These were all areas where his level of functioning was likely to have deteriorated by the time of trial. In May 2015 Dr Douds recorded a score of 65/100 but he observed that this was consistent with the nature of the condition, being one in which people “have good days and bad days”.
[45] Both witnesses explained that the effect of the appellant’s short term memory difficulties would be that even if he were able to follow and comprehend the evidence at the trial, by the time of a luncheon adjournment, or at the end of the day, he might not have been able to recollect matters sufficiently to raise them with his legal representatives. When Dr Darjee conducted his own examinations of the appellant only a few months after the trial, he found that the appellant forgot matters which had been discussed an hour earlier. He did not think that the appellant would have been able to participate effectively in the trial.
“I don’t think he was reasonably and fairly able to take part in the court process, especially regarding attention, concentration and short term memory - they would be likely to function at a very poor level at trial and he would not able to participate.”
Dr Campbell was of the same opinion. At the time of the trial,
“He’d have had difficulty for a number of reasons. His organic brain problems would have been significant; he would be extremely anxious which would have a further detrimental effect; he would have had difficulty with the language used, that was a deteriorating function; difficulty retaining information long enough to get a sense what was going on; difficulty understanding the implications of evidence given and how it might impact on his own position; he would have struggled to keep up with what was going on, and to go back and remember what had gone on.”
[46] Dr Campbell thought that the text messages gave considerable cause for concern, particularly those of 27 and 28 January, and that “they would certainly ring alarm bells”, adding that they were
“..strongly indicative that he cannot convey to the people that he trusts what is going on and I would infer that it is because he doesn’t know what is going on because he has not retained the information he has been given by his legal team.”
[47] Asked about the view expressed by Dr Douds, Dr Campbell commented:
“I am not entirely persuaded by Dr Douds’ position. I did not feel reassured by the communication from the legal team. The focus was understandably on getting an account of events at the time. Given his history it would have been prudent to seek expert assessment especially since such a long time had elapsed from the original diagnosis.”
[48] In his evidence Dr Douds stated that the only certainty was that at the time of the sentencing process, the appellant would not have been able to understand or follow it. He also considered that at the time of the trial the appellant would certainly have been impaired, but a question remained as to the extent of that impairment. There was no medical issue such as a stroke, which might account for the apparently rapid deterioration between the time of the trial and the time of sentencing. Dr Douds had not seen the report from Dr Campbell dated 1 June 2016. Having considered the terms of that report and reflected thereon, he came to the conclusion that he had been unduly influenced by the terms of the Anderson responses. He agreed with Dr Campbell that it would have been prudent to obtain an expert report on the appellant’s condition. He also agreed that the appellant may have in fact been unable to register, retain and recall new information presented during the trial process; may have been unable to “shift set”, in other words to change his instructions in response to evidence put forward by the complainers or may have failed to understand the significance of it; his ability to judge the effect of evidence may also have been impaired; and his cognitive function would have been worse if he was anxious. Dr Douds could not dispute that the appellant may have been unfit at the time of the trial, but his ultimate position was as per his original report, that while this might have been the case, it was a matter of speculation.
Submissions
Counsel for the appellant
[49] Mr Findlay submitted that the evidence which the court had heard was sufficient to suggest that it was more probable than not that at the time of trial the appellant’s medical condition was such that he had not been fit for trial. It was not in dispute that by time of sentence, a short time after the trial, the appellant was incapable of comprehending the sentencing procedure because of his dementia. His diagnosis had been made some eight months prior to trial, with defects of memory and language apparent. His condition would only have deteriorated in the interim. His medical condition was such that he would not have been able to follow the evidence in such a way that he could comment on that evidence if so advised, particularly when there might be a significant gap in time between the evidence being given and an adjournment at which the matter could be raised. Even in a case where the defence is a broad based denial, it is necessary for an accused to be able to appreciate the evidence given, react to it, and convey information to legal representatives. That is a significant part of any trial. For example, a witness may come in and provide information about a meeting in a public house. The accused might say he had never been there and, in fact, that the public house had been demolished by the time in question. That is something which is verifiable. Detail such as that is one reason why an accused person sits in court. We have all been in a position where a piece of information is proffered by an accused which turns out to be extremely valuable. A man is entitled to participate and, to do so, he needs to be able to understand and remember the evidence. He may have low intellectual capacity but nonetheless he must be able to follow the trial. On the evidence of all three psychiatrists the court should be satisfied that the first ground of appeal has been established.
[50] If the first ground of appeal were to succeed, strictly speaking the court would not require to consider the remaining grounds. However, Mr Findlay submitted that in any event the second ground of appeal was also made out. The appellant’s legal advisers were aware prior to his trial that he had a diagnosis of Alzheimer’s and vascular dementia and yet chose not to have that explored by appropriately qualified medical personnel. Dementia is of course a very varying and hugely complicated condition and even experienced medical practitioners may have difficulty in assessing an individual’s capacity. Many months had passed between the date of the original diagnosis and the trial: how any lawyer could think that the matter should not be investigated further was beyond comprehension. It was an extraordinary decision, and nothing short of incompetent. It was surely common knowledge that in a condition such as the appellant’s, one of the first deficits to manifest itself is problems with short term memory. At the very least one might have expected the condition to be investigated to ascertain whether special measures – such as additional breaks – were required. The three lawyers each knew of the diagnosis of dementia and individually and collectively did nothing about it. There is a duty on all who conduct cases such these to think them through carefully and properly in the interests of those they represent. All three lawyers let their client down very badly.
[51] Mr Findlay did not pursue the remaining grounds of appeal.
Advocate Depute
[52] The advocate depute submitted that, standing the evidence, the Crown concession in relation to the first ground of appeal was proper, and the court could find that ground to be established. As to the second ground of appeal, in his case and argument the advocate depute had submitted that the second ground of appeal had not been established, having regard to the Anderson responses and to para 14 of Yazdanparast v H M Advocate 2016 JC 12. In that case the court noted that:
“..where it is clear that the mental state of the appellant had been fully and properly canvassed in advance of the trial, and where there is no suggestion that matters had changed in the course of the trial, it cannot support the ground of appeal advanced..”
[53] Having reconsidered matters in light of the evidence, and on a closer consideration of the facts, the advocate depute accepted that the reference to this passage was misconceived. This was not a case in which it could be said that the appellant’s mental state had been fully and properly canvassed in advance of the trial. In addition the nature of the condition was such that it could not with confidence be assumed that the appellant’s ability at trial was as it had been when the original diagnosis was made. He no longer adhered to his written submission that the legal representatives were best placed to decide whether they could obtain instructions effectively. It was plainly wrong not to obtain an expert report from a suitably qualified doctor on the appellant’s condition. Having reconsidered the matter in light of the evidence the advocate depute considered it inappropriate to contest the second ground of appeal.
Analysis
Ground One
[54] The appellant suffers from a mixed form of dementia, a combination of Alzheimer’s and vascular dementia. There is no doubt about that, and equally there is no doubt that he now meets the test for unfitness for trial. The critical question in the case is whether he met that test at the time of his trial. At the commencement of the appeal hearing, the preponderance of the medical evidence was that it was likely that he was so unfit, the one exception being Dr Douds, who, having previously shared that opinion, had now altered that view on the basis that the Anderson responses suggest that the lawyers involved had no concerns about his ability to give instructions or to follow court proceedings, notwithstanding the diagnosis. Influenced by the responses, Dr Douds’ revised opinion was that this suggested that the appellant was probably competent to stand trial at the time. However, in the course of his evidence, after reflecting upon the fact that the lawyers had no medical training, and the deteriorating nature of the appellant’s condition, and having been shown Dr Campbell’s report of 1 June 2016, Dr Douds reverted to his originally expressed opinion.
[55] The nature of the condition which led to the diagnosis in March 2014 was that, on examination, the appellant had been found to have a significant degree of cognitive impairment, with a CT brain scan demonstrating atrophy and also changes in keeping with small vessel disease. Subsequent examinations have been indicative of “very significant impairment/dementia”, although his condition is such that he “can present as superficially plausible” (both from Dr Douds’ report, 2 June 2016). The fact that the appellant appears to have been able to converse with his agents about past events is far from conclusive of his fitness for trial in light of the medical opinions, and in particular in light of the comments by Dr Darjee that the appellant’s long term memory was likely to have been preserved for longer, effectively masking other underlying problems, or at least making it more difficult for a layman to identify the severity of the condition. Dr Campbell was clearly highly sceptical about the suggestion that there might have been capacity at trial followed by such rapid deterioration that there was no such capacity by 15 January 2015: it seems much more likely on the evidence that the real extent of his condition was merely made more manifest during this period.
[56] Both Dr Campbell and Dr Darjee gave cogent explanations for rejecting the possibility of a rapid deterioration, as we have noted above. They gave careful and considered evidence as witnesses with impressive psychiatric qualifications and experience. We have no hesitation in accepting their opinions. In our view their opinions are supported by the evidence of the telephone interrogation, which showed (a) that for the organisation of attendance at his solicitor’s office, the appellant relied a great deal upon his granddaughter, and (b) texts which suggest confusion on his part at an early stage of the trial. The text of 27 January was particularly telling, and in the words of Dr Campbell was:
“strongly indicative that he cannot convey to the people that he trusts what is going on.”
[57] Dr Douds was, with due respect to him, a less impressive witness than Drs Campbell and Darjee. His experience was more limited than theirs, and his reasons for originally having been so influenced by the Anderson responses were unconvincing. Dr Campbell did not consider such a position justified, noting that the concentration was naturally on events in the past, where recall would be better, and that no consideration had been given to the effect of the passage of time between the diagnosis and the trial some eight or so months later. Although Dr Douds may have been correct to say that the only certainties were that the appellant had been diagnosed in May 2014, would have been impaired at the time of his trial, and that by the mid-February 2015 he would not be considered fit for trial, he was in our view wrong to suggest that it was mere speculation to consider what his position at trial would have been. The evidence given by Dr Darjee and Dr Campbell is not speculation: it is their professionally opinion reached as a matter of reasonable inference from all the information known. This is not to speculate but to draw legitimate inferences from what they know about the nature of the appellant’s condition, the effect of it, the areas in which he suffered particular deficit, the progress of his condition all as shown by the successive examinations, and the known pattern of the illnesses from which he suffered. They have taken account of the Anderson responses, but have shown why they proceeded upon an incomplete and inadequate consideration of the nature of the condition from which the appellant was suffering. We accept their opinions and are satisfied that it is more probable than not that at the time of trial the appellant was not fit to stand trial, and that the first ground of appeal should be upheld.
Ground Two
[58] Our decision on the first ground would of course be sufficient for determination of this appeal. The advocate depute, in his submissions to us indicated that he “conceded” this ground also. We have recorded that as a submission that he considered it inappropriate to contest this ground, since, in an appeal such as this, we do not think it quite accurate to say that the Crown can “concede” the appeal. In any event, whatever the position adopted by the Crown, the issue remains one for this court to determine.
[59] Section 53F of the Criminal Procedure (Scotland) Act 1995 provides:
Unfitness for trial
(1) A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial.
(2) In determining whether a person is unfit for trial the court is to have regard to—
(a) the ability of the person to—
(i) understand the nature of the charge,
(ii) understand the requirement to tender a plea to the charge and the effect of such a plea,
(iii) understand the purpose of, and follow the course of, the trial,
(iv) understand the evidence that may be given against the person,
(v) instruct and otherwise communicate with the person's legal
representative, and
(b) any other factor which the court considers relevant.
[60] Section 54 provides, so far as relevant:
Unfitness for trial: further provision
(1) Where the court is satisfied that a person charged with the commission of an offence is unfit for trial so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2) below—
(a) make a finding to that effect and state the reasons for that finding;
(b) discharge the trial diet or, in proceedings on indictment where the finding is made at or before the first diet (in the case of proceedings in the sheriff court) or the preliminary hearing (in the case of proceedings in the High Court), that diet or, as the case may be, hearing and order that a diet (in this Act referred to as an “an examination of facts”) be held under section 55 of this Act; ….
[61] There is no stipulation as to the nature of the evidence upon which the court may be satisfied as to unfitness. It is difficult, however, to conceive of circumstances in which the court would make a decision of a mental unfitness said to arise from a medical condition without the evidence of a psychiatrist, psychologist or other appropriate medical professional. The consequence of a finding of unfitness in most cases will be an examination of the facts, although provision is made (section 54(2)) for desertion pro loco et tempore by the court on the application of the prosecutor. Such a course of action may be appropriate, for example, in the case of a temporary unfitness.
[62] Following Anderson v HMA 1996 JC 29, the position in Scotland in an appeal such as this is clear. The right of an accused person is to be represented in such a way that his defence will be presented to the court (Anderson p 43I -44A). The circumstances in which the conduct of the defence by counsel or solicitor will provide grounds of appeal are defined narrowly. The circumstances must be such as to have resulted in a miscarriage of justice, and they will only do so where the conduct was such that the defence was not presented to the court, thus depriving him of a fair trial. (Anderson p44E-G).
[63] In McBrearty v HMA 2004 JC 104 the court noted (para 55) that:
“Anderson appeals are not to be decided on the counsels of perfection to which hindsight lends itself”.
[64] The decisions of members of the legal team prior to, and at the time of, the trial are not to be judged by events which have taken place since then, or opinions formed on the basis of such events. The issue rather is whether in light of the information known at the time the failure to obtain an expert report upon which a proper medical assessment of the appellant’s fitness for trial might have been made amounted to defective representation, preventing such an assessment, and constituting a miscarriage of justice. Furthermore, although we have referred from time to time to “the lawyers” or the “legal team” we are acutely aware that this is an issue which must be considered individually for each member of the team, according to his or her own degree of knowledge and involvement.
[65] The issue of fitness for trial goes to the heart of a person’s capacity, and their ability to participate in an effective way in their trial. In McEwan v HMA 2010 JC 95, the court observed (para 22, Lord Kingarth delivering the opinion of the court) that it may not always be easy to draw the dividing line between cases of tactical and strategic decisions within the area of professional discretion, and those which fall outwith it. We entirely agree with that observation. The issue which arises in this case is not one which readily falls on one side of the line or the other. Although there may be apparent parallels with the situation where an individual’s defence is not presented, or the opportunity to do so is thwarted, because of the conduct of his legal representatives, the parallel is not exact. It is not a defence to criminal proceedings that a person is unfit for trial, nor does a finding of unfitness result in acquittal. Equally, the decision is not one which can properly be described as a strategic or tactical one. The decisions not to investigate the nature and extent of the condition from which the appellant was known to be suffering, or to obtain the report suggested by Dr Matthew, were not made for any tactical or strategic reason but because, in the case of Ms Gill and Mr Paterson, they considered that they were able to obtain instructions and that no report was required. In the case of Mr Stephenson, it was because he understood the matter already to have been addressed, and also because he too experienced no difficulty in communicating with the appellant.
[66] The circumstances in which legal advisers may require to consider the question of the fitness for trial – mental or physical - of their client, are many and various. An individual may present somewhat strangely, without being considered unfit for trial. Whether the situation is such as to require investigation, especially in the absence of a medical or psychiatric history, may involve questions of judgement. It is not unknown for legal advisors to be absolutely convinced of their client’s mental unfitness only to obtain an expert opinion that he is perfectly fit for trial, although perhaps this occurred more commonly when the only test was one of insanity. Equally, it may be clear that the client has a psychiatric condition which renders him unfit, and where the need to obtain an expert report confirming the fact is obvious. In the latter situation, it may be that obtaining a report is indeed the only reasonable step to take. However, the nature of the decisions which may require to be made, and the variety of circumstances, persuades us that the situation is one which calls for the exercise of professional judgement.
[67] It is a little surprising that, having been made aware of the diagnosis of Alzheimer’s and dementia, and advised that it was advisable to obtain a report from a forensic psychiatrist, none of the lawyers obtained such a report. It is common knowledge that conditions such as Alzheimer’s often feature problems with short-term memory, comprehension and the processing and recall of information. The lawyers had no information about the extent to which the appellant’s condition was impacting on these matters. The information which they had was largely limited to the diagnosis. The ability of the appellant to give a history relating to the charges and the complainers is an incomplete basis for concluding that he was fit for trial. During the trial, of course, Ms Gill had the further information provided in the texts from the appellant’s granddaughter.
[68] The information contained in the Anderson responses has been referred to above. Ms Gill discussed the diagnosis with Mr Paterson and they “both agreed that Charles Murphy was able to understand the court process, give full and comprehensive instructions and had provided a very thorough version about the allegations facing him”. In each case they were strongly influenced by the fact that the appellant had been able to give a history, but also on the basis that he seemed to understand that an argument was to be presented in relation to the previous prosecution.
[69] Ms Gill’s response listed the “detailed background and current information”, consisting of eleven points, which the appellant was able to provide and which influenced her decision. These appear, with one possible exception, to relate to historical matters.
[70] The nature of the appellant’s condition is such that an ability to relate historical information is not a good indication of current fitness for trial. However, we recognise that the Anderson responses are a partial explanation, and may not recount in full the contemporaneous factors which might have featured in the decision to proceed without an expert report. To consider this ground of appeal properly and in context, we consider that we would have to hear evidence from those instructed for the trial. In our view, nothing is to be gained by adopting such a course of action given the conclusion we have reached. We will therefore merely remind the profession that where any question of mental fitness arises it may be prudent for advisers to obtain a medical report rather than rely on their own personal assessment.