Man convicted of rape who was later found to be ‘unfit to stand trial’ wins ‘miscarriage of justice’ appeal

Charles Murphy was convicted of seven charges involving serious assault, rape, lewd and libidinous practices, indecent assault and assault with intent to rape following a three-day trial in January 2015, but before he was sentenced it emerged that he was suffering from dementia and was “likely to have been unfit at trial”.

The trial judge subsequently sentenced the accused to five years imprisonment, but the High Court of Justiciary Appeal Court upheld the appellant’s claim that a “miscarriage of justice” had occurred.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Malcolm, heard that at the start of the trial, 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, that the appellant was fit for trial and that 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.

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”, and that a psychiatric assessment was required to clarify his mental status.

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”.

At the diet on 26 February the appellant’s solicitor advocate advised the court that in May 2014 the agents had received a letter from a doctor, who diagnosed the appellant as suffering from “mild Alzheimer’s”, but who had advised by telephone that the appellant was fit to stand trial.

The solicitor advocate also 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”.

However, the court ordered investigations, the result of which were reports from two forensic psychiatrists, Dr Rajan Darjee of the Orchard Clinic and Dr Fergus Douds from the State Hospital, which concluded that: the appellant suffered from “mixed Alzheimer’s and vascular dementia”; he was “incapable” of giving instructions or participating effectively in the sentencing process; he was “likely to have been unfit at trial”; his disorder was “progressive”; and there was “no medical basis for compulsory measures of treatment”.

The defence also produced a further psychiatric report from a Dr Isobel Campbell, who agreed in all essentials with the other psychiatrists.

New agents were instructed after the solicitor and solicitor advocates involved in the case withdrew from acting and at an adjourned hearing to discuss further procedure, counsel for the appellant advanced a plea in bar of sentence.

But the Crown suggested that the sentencing diet 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.

However, 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; that there was no basis for the court to make a compulsion order in the absence of a need for treatment; and that it was not feasible to adjourn sentence pending further proceedings, this being incompetent while there remained an outstanding statutory right of appeal. The judge accordingly proceeded to sentence the appellant to five years imprisonment.

The grounds of appeal stated 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” – a degenerative condition which would have been worse at the time of the trial than it was in March 2014.

It was 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 – thus there had been a “miscarriage of justice”.

A further ground of appeal asserted “inadequate professional representation”, as it was the duty of his defence lawyers to satisfy themselves that he was fit for trial.

Having been alerted to his condition they should have investigated the matter and had they done so, they would have ascertained that he was not fit to stand trial.

The third ground of appeal stated that the Crown also ought to have made investigations into his metal state as they too were aware that the appellant suffered from dementia. It was the Crown’s duty in the public interest to do so, as they had a duty to ensure that the accused received a fair trial.

Finally, it was claimed that the trial judge erred in proceeding to sentence in the circumstances and that in any event the sentence was “excessive”.

Having obtained “Anderson Responses” from the solicitor advocate who had originally been instructed for the trial, the original solicitor who had also appeared as junior and the solicitor advocate who conducted the trial, and having taken from all three psychiatrists, the appeal judges upheld the first ground of appeal.

Delivering the opinion of the court, the Lord Justice Clerk said it was “more probable than not that at the time of trial the appellant was not fit to stand trial”.

On the issue of “inadequate professional representation”, the court observed that decisions of members of the legal team prior to, and at the time of, the trial were “not to be judged by events which had taken place since”.

Lady Dorrian said: “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.”

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 it was “a little surprising” that none of the lawyers obtained such a report.

However, the judges added that in order to consider this ground of appeal properly and in context, they would have to hear evidence from those instructed for the trial, but there was nothing to be gained from doing so.

The Lord Justice Clerk said: “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.”