S v R [2014] EWCA Crim 2648 (20 January 2015)

Neutral Citation Number: [2014] EWCA Crim 2648 Case No: 201305437 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION T2007/7856 Royal Courts of Justice Strand, London, WC2A 2LL 20/01/2015 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE OPENSHAW and MR JUSTICE DOVE ____________________ S Applicant - and - THE QUEEN Respondent ____________________ Mr. S appeared in person Mr. W. Mousley QC (who did not appear below) appeared on behalf of the Crown Hearing date : 10th December 2014 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © The Honourable Mr. Justice OPENSHAW : This case has a long and tangled procedural history. As long ago as 12 August 2005, after a trial at the Crown Court at Blackfriars, the applicant S was convicted of rape and indecent assault upon his wife. On 23 January 2008, the full Court allowed an appeal against conviction, having admitted fresh evidence to the effect that at the time of the original trial the applicant was suffering from previously undiagnosed autism; this condition, and its symptoms, the court considered may have explained his strange behaviour at the trial, such as casually reading a book whilst the complainant was giving her evidence, which might otherwise have given the jury the impression that his attitude was one of callous indifference, from which they might understandably have drawn an adverse inference against him. However, when the matter returned for trial before the Crown Court at Blackfriars on 9 June, 2008, His Hon Judge Marron QC, having heard medical evidence, found pursuant to section 4(5) of the Criminal Procedure (Insanity) Act 1964 (as substituted and amended) that the applicant was under a disability and was unfit to plead. Consequently a jury was empanelled to try the issue of whether the applicant had committed the act of rape and indecent assault upon his wife. On 12 June the jury found that he had committed both acts; he was thereafter made subject, on each count concurrently, to a Hospital Order under section 5 of the Act. He was also made subject of an indefinite Sexual Offences Prevention Order, to which we must return later. In the circumstances, it is not necessary to detail the facts; it suffices to say that his wife alleged that in breach of an injunction of the Family Court, the applicant attended at her house, entered her bedroom, digitally penetrated her and then raped her. The applicant now applies for an extension of time of more than 5 years to appeal against a finding of disability and/or that he committed the acts. However, in the written application lodged at this court, he does not make any complaints that the finding of disability was wrong either on the evidence or in law, or indeed that the finding of fact was wrong, either on the evidence or in law. The applicant has now dispensed with the services of his lawyers and pursues the appeal in person. Although he has no right to be heard upon a renewed application for leave to appeal, we did allow him to address the court. He sought to persuade us that we should indeed quash the decision of the jury that he did the acts because he says a vital piece of evidence was not put before them. The evidence to which he refers is a letter, apparently written – or at least signed - by his wife on 5 December 2005, in which she purports to retract her evidence that he raped and indecently assaulted her. But he is entirely mistaken: this letter was indeed in evidence at the trial and the judge referred to it in his summing up (see the transcript at page 12G). There is therefore nothing in this point at all. He also relies on the fresh evidence from a psychiatrist to the effect that he is now fit to plead; he now seeks an order of this Court to send the case back to the Crown Court for a retrial on the merits. This application however is misconceived. The fresh evidence does not suggest that he was fit to be tried back in June 2008; so the correctness of the decision that he was unfit to be tried at that time is not impugned. We can only set aside the decision of the Crown Court, if it was wrong at the time, and the applicant does not so allege. Pursuant to section 5A(4) of the Act, where a Hospital Order is made with a restriction upon a person found to be under a disability, and that person later recovers, the Secretary of State can be remit the case to the Crown Court for trail but that does not apply where a Hospital Order is made without a restriction. Since in this case, the Hospital Order made did not have such a restriction, this court simply has no power to make the order remitting the case back to the Crown Court for trial; we therefore refuse his application to extend the time of the leave to appeal. The applicant did however make one further point; this was not included in his original application either, but we heard him de bene esse. By virtue of his conviction, the applicant was subject to the obligations of notification as a sex offender; since he was made subject to a Hospital Order, that notification period expires 7 years after the sentence, namely, 12 June 2015. However, as we have already said an indefinite Sexual Offences Prevention Order was made at the original sentence and anyone subject to a SOPO is also subject to the obligations of notification; since the SOPO is an indefinite order, he remains subject to the notification provisions indefinitely. He complains that this is unjust and unnecessary now that he has overcome his mental illness. Since he does not suggest that an indefinite SOPO was wrong at the time that it was made, and since it is plainly inappropriate for us to review the matter now 5 years on in the light of his change of circumstances, we declined to do so. However, if so advised, in the light of the changed circumstances - if such they be - pursuant to section 108 of the Sexual Offences Act 2003, the applicant may make an application to Blackfriars Crown Court to discharge or vary the terms of the SOPO. We express no views as to whether the Crown Court should discharge or vary the terms or length of the SOPO, which is entirely for a judge of that court to decide; we merely alert the applicant to possibility that he might make such an application. For these reasons, the application for leave to appeal against the decision of the judge that he was unfit and against the decision of the jury that he did the acts is refused. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII