202303262 B1 - [2025] EWCA Crim 1163

Persons found unfit to plead: representation and funding on appeal:

We turn finally to issues which this case has raised as to representation and funding in relation to appeals by persons who have been found unfit to plead, and found to have done a relevant act or made a relevant omission.

Where a court has determined that an accused person is unfit to plead, s4A(2) of the Criminal Procedure (Insanity) Act 1964 requires that a jury must determine whether he did the act or made the omission charged against him as the offence. That determination must be made

on the evidence (if any) already given in the trial; and

on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence”.

By Crim PR 25.10(3):

“Where the court determines that the defendant is not fit to be tried –

the court must exercise its power to appoint a person to put the case for the defence, taking account of all the circumstances and in particular –

the willingness and suitability (including the qualifications and experience of that person),

the nature and complexity of the case,

any advantage of continuity of representation, and

the defendant’s wishes and needs …”

In the present case, Mr Miller and Mr Archer were so appointed.

Purely for convenience, we shall refer to the person who has been found unfit to plead as “the accused”, and to the person(s) appointed to put the case for the accused as “the representatives”.

By s15 of the Criminal Appeal Act 1968, the accused may (with leave) appeal against a finding that he did the act or made the omission charged against him. Provisions as to the powers of this court on hearing such an appeal are contained in s16.

However, since the accused is unfit to plead, it follows inescapably that he or she must also be unfit to act in person to commence or conduct an appeal, and equally unfit to give instructions to fresh legal representatives. Any appeal must be brought on his or her behalf by the representatives: see R v Roberts [2019] EWCA Crim 1270 at [34] and [35].

In R v Antoine [1999] 2 Cr App R 225 this court held, at p237, that counsel who had been appointed by the court to put the case for the accused in the Crown Court has authority to settle and give notice of appeal, and to argue the appeal, on his behalf. It follows that it is the professional duty of counsel so appointed to consider whether there are arguable grounds for appealing against an adverse determination by the jury, notwithstanding that the accused, being unfit, cannot give binding instructions in that regard.

Neither the proceedings in the Crown Court under s4A of the 1964 Act, nor an appeal to this court under s15 of the 1968 Act, are “criminal proceedings”. They are therefore not covered by the provisions as to public funding which apply to legal representation in a criminal trial. The Registrar cannot grant a representation order, as she can do in an appeal against conviction pursuant to s1 of the 1968 Act.

However, by s19(3)(d) of the Prosecution of Offences Act 1985, as amended, the Lord Chancellor is empowered to make regulations providing for “the payment out of central funds … of such sums as appear to the court to be reasonably necessary to cover the proper fee or costs of a person appointed by the Crown Court under section 4A of the Criminal Procedure (Insanity) Act 1964 to put the case for the defence”.

By regulations 13A-13C of the Costs in Criminal Cases (General) Regulations 1986, Part III of those Regulations (“Costs out of Central Funds”) applies, with appropriate modifications, to the determination of the proper fee. No specific reference is made, in those provisions, to proceedings before this court; but in Antoine, at p237, this court confirmed that s19 of the 1985 Act, and the regulations made thereunder, apply to an appeal under s15 of the 1968 Act.

Where an order for costs out of central funds is made in proceedings before this court, the appropriate authority to determine the proper amount is the Registrar, who may appoint determining officers to act on her behalf: see regulation 5(2)(a) and (3).

The effect of these provisions, in a case in which notice of appeal under s15 of the 1968 Act is given, and the single judge grants leave to appeal, is that the representatives will prepare and present the appeal on behalf of the accused, and will in the ordinary way be remunerated (whatever the outcome of the appeal) by an order for costs out of central funds.

What, however, is the position of the representatives if the single judge refuses leave to appeal? The accused may well wish the application for leave to appeal to be renewed to the full court, but he or she remains unable to give any binding instructions. Do the representatives have authority either to renew or not to renew all or any of the grounds of appeal to the full court? If they renew, what funding (if any) is available? If they do not renew, does the accused have any right to renew as a litigant in person or to appoint fresh legal representatives?

We have received helpful submissions from counsel on these questions.

In Roberts, at [39], this court held that if the representatives consider that there is no arguable ground of appeal, there can be no valid appeal by the accused. At [40] and following, the court helpfully outlined the appropriate course to be taken if the accused attempted to make an application in person for leave to appeal: in summary, the papers should be referred to a single judge; and if the single judge considered there may be arguable grounds of appeal, fresh counsel could be appointed to settle any appropriate grounds and to present the appeal if leave were granted.

The circumstances in Roberts were that the representatives had advised that there were no arguable grounds for an appeal under s15 of the 1968 Act. The accused purported to file grounds of his own composition. His application for leave to appeal was refused by the single judge. The accused purported to renew his application to the full court. The court held, at [32], that the accused was not competent to do so. Counsel had, however, been appointed to represent the interest of the accused, and argued grounds of appeal. The court concluded that there was no arguable ground, and therefore refused the renewed application for leave to appeal. The court, following Antoine, nonetheless made an order that counsel’s costs be paid out of central funds.

The procedural history of the present case is somewhat different. We are, however, satisfied that the principles underlying the decision in Roberts apply equally to this case.

As we have noted, the single judge rejected all the original grounds of appeal. The applicant himself, acting in person, purported to renew the application to the full court. By error, that application was accepted by the Criminal Appeal Office: as indicated in paragraph 80 above, Roberts makes clear that the applicant was not competent to act in person. An appeal can only be brought through the representatives.

The representatives were then asked whether they would act on behalf of the applicant at the hearing before the full court. By a further error, the Registrar purported to grant a defendant’s costs order (under s16 of the Prosecution of Offences Act 1985) to remunerate counsel from central funds for confirming to the Registrar whether the application for leave would be renewed, and for explaining the position to the applicant. The Registrar does not have the power to appoint a person to present the case on behalf of the accused.

Those errors are regretted, but nothing turns on them.

Renewed applications for leave to appeal are often considered by the full court on the papers. The representatives, understandably in the circumstances, took the view that they should continue to present the case for the applicant, and were willing to do so pro bono. They have made their submissions on the four renewed grounds which we have considered earlier in this judgment. They invite us to order that their costs be paid out of central funds. In support of that invitation, they submit that the case in the Crown Court was unusually complex, and that this court would have been disadvantaged if it had had to consider the grounds of appeal without oral submissions on both sides.