[2002 JLR 11]
PRIOR v. ATTORNEY GENERAL
COURT OF APPEAL (Vaughan, Tugendhat and Hodge, JJ.A.): January 17th, 2002
Criminal Procedure—fitness to plead—raising of issue—appropriately raised by accused himself, or exceptionally by trial court—appeal court has no jurisdiction to raise of own volition
Criminal Procedure—fitness to plead—test—meaning of “insanity” in Criminal Justice (Insane Persons) (Jersey) Law 1964, art. 1 unaffected by ruling on meaning in art. 2 if question never considered by court
Criminal Law—assault/assaut—sentence—grave and criminal assault—starting point of 12 years’ imprisonment appropriate for serious premeditated attack causing permanent injury
Criminal Law—insanity—McNaghten Rules—uncertain that McNaghten Rules inapplicable in Jersey—desirable to consider legislation to systematize insanity test in UK and Channel Islands
    The appellant was charged in the Royal Court with grave and criminal assault.
    The victim had abused and insulted the appellant on the night of the attack. The appellant, who had been drinking and had taken heroin intravenously, later ran the victim down in the street causing him serious and permanent injuries. The appellant had been receiving psychiatric treatment for two years but had stopped taking his prescribed medication.
    The psychiatric reports indicated that, although the appellant had a psychotic illness, he did not satisfy the McNaghten test of insanity and was therefore not insane at the time of the offence. The Royal Court then ruled (2001 JLR 146) that (a) the McNaghten Rules did not apply in Jersey and, arguably, were incompatible with the European Convention on Human Rights; and (b) for the purposes of art. 2(1) of the Criminal Justice (Insane Persons) (Jersey) Law 1964, a person was insane if, at the time of the commission of the offence, his unsoundness of mind affected his behaviour to such an extent that the jury considered he could not be held criminally responsible. The court did not consider the meaning of “insane” in art. 1 of the 1964 Act, which concerned whether an accused was unfit to plead or unable to understand the nature of the trial.
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    Fresh psychiatric reports prepared in the light of the ruling indicated that, on the new test, the appellant was not insane at the time of the offence. The appellant pleaded guilty and was sentenced to 10 years’ imprisonment.
    The appellant appealed, submitting that (a) the Court of Appeal should consider of its own volition whether he was insane at the time of the taking of his plea; (b) the ruling of the Royal Court affected art. 1 of the 1964 Act so that the test of fitness to plead was no longer the conventional one—namely whether the accused could instruct his legal advisers, understand the difference between pleading guilty and not guilty, understand the case against him and give evidence; (c) the psychiatrists’ reports were therefore unreliable as they had applied that test; and (d) a sentence of 10 years’ imprisonment was manifestly excessive in all the circumstances of the case.
    Held, dismissing the appeal:
    (1) The Court of Appeal had no jurisdiction to raise of its own volition the issue of insanity at the time of taking the appellant’s plea. If the issue of fitness to plead were relevant, it should have been raised by the appellant’s advocate before the Royal Court or by the Royal Court itself in circumstances which were sufficiently exceptional to justify declaring the appellant insane against his express plea of guilty, thereby subjecting him to indeterminate detention and depriving him of his right to a fair trial under the European Convention on Human Rights (paras. 21–22).
    (2) As it had not been contended before the Royal Court that the conventionally understood test of fitness to plead was incorrect, the court had had no opportunity to consider whether that test was in fact applicable in Jersey. The ruling of the Royal Court on art. 2 of the 1964 Act therefore did not affect art. 1 so as to alter the test of fitness to plead. As the psychiatrists had considered whether the appellant was fit to plead on the basis of the conventional test and as there was no evidence in their reports to support a contention that the appellant was insane at the time of the taking of his plea, the appellant was fit to plead (para. 23).
    (3) A starting point of 12 years’ imprisonment was appropriate for a premeditated attack of a severe nature which left the victim permanently injured. Moreover, it was neither an aggravating nor a mitigating factor that (a) the appellant was psychotic; (b) his condition was aggravated by his consumption of alcohol and illegal drugs and his failure to take medication; and (c) the victim had verbally abused the appellant on the night of the attack. A sentence of 10 years’ imprisonment was therefore appropriate (paras. 26–28).
    (4) Although it was not necessary to decide the point, it was likely that the correctness of the Royal Court’s ruling might have to be questioned, not least because it was uncertain that the McNaghten Rules were incompatible with the European Convention on Human Rights. It was desirable that the whole law of insanity and diminished responsibility
2002 JLR 13
should be reformed by legislation and that thought should be given to coordinating the law in the Channel Islands with that of the jurisdictions of the United Kingdom (para. 15).
Cases cited:
(1)      Att. Gen. v. Mallet, 2000 JLR 155; on appeal, sub nom. Mallet v. Att. Gen., 2000 JLR 256, considered.
(2)      Kelly v. Att. Gen., 2001 JLR 108, considered.
(3)      Law Officers of the Crown v. Harvey, Royal Court of Guernsey, August 3rd, 2001, unreported, considered.
(4)      McNaghten’s Case (1843), 10 Cl. & Fin. 200; 8 E.R. 718.
(5)      R. v. Dickie, [1984] 3 All E.R. 173, considered.
(6)      R. v. Hall, [1997] 1 Cr. App. R. (S.) 62, considered.
(7)      R. v. Pritchard (1836), 7 C. & P. 303, 173 E.R. 135, considered.
(8)      Winterwerp v. Netherlands (1979), 2 E.H.R.R. 387, considered.
Additional cases cited by counsel:
Holley v. Att. Gen., 2001 JLR 606.
R. v. King (1973), 57 Cr. App. R. 696.
R. v. Wren, [1974] Crim. L.R. 323.
Legislation construed:
Criminal Justice (Insane Persons) (Jersey) Law, 1964, art. 1: The relevant terms of this article are set out at para. 12.
art. 2: The relevant terms of this article are set out at para. 12.
Text cited:
Mackay, Mental Condition Defences in the Criminal Law, at 215–246 (1995).
C.M. Fogarty for the appellant.
Miss S.C. Nicolle, Q.C., Solicitor General, for the Crown;
1  VAUGHAN, J.A., delivering the judgment of the court: Jason Cyril Prior is now aged 25. On April 6th, 1999, when he was aged 22, an incident took place in St. Helier which led to his being charged with an offence of committing a grave and criminal assault on Darragh Fitzpatrick. This attack was of an extremely severe nature and left Mr. Fitzpatrick seriously and permanently injured. There were other offences committed at the same time relating to the taking of the motor vehicle in question but these are of minor significance and not subject to this appeal. Mr. Prior has pleaded guilty to all these offences. He now appeals against his sentence of 10 years’ imprisonment.
2  Prior to the incident in question, Jason Prior had been, for a period of some two years, a patient of Dr. Faiz, a consultant psychiatrist. He was attending the out-patient clinic at the General Hospital on a monthly basis
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and was receiving anti-psychotic medication. In fact, he was due for an appointment at some date very close to the incident in question. According to the medical reports, he admitted having become addicted to heroin some 18 months before but said he had not taken heroin for some 2 days. He also admitted to consuming very large quantities of alcohol on the evening in question, although the tests that were subsequently carried out some 12 hours later do not show any indication of alcohol. Before the incident, he had an intermittent employment record and had previous convictions mainly in the nature of taking and driving away and breaking and entering, and he had been sentenced to 15 months’ youth custody.
3  The main matters raised in this appeal against sentence are matters which relate to the mental capacity of the appellant at the time of the offence and at the time of his plea of guilty. However, to understand the case and the issues raised and the severity of the assault, it is necessary to describe in some considerable detail the facts of the assault.
[The learned Judge of Appeal then set out the facts, which may be summarized as follows:
On the night of the attack, the victim went to a public house with a group of friends. When the appellant, who was not known to them, asked a member of the group if he knew where he could obtain drugs, the victim became verbally abusive and insulting towards him. At closing time, the appellant indicated to the head barman that he held a grudge against the victim and, as the victim was leaving, the appellant exchanged insults with him. The victim then went to another bar and, when the appellant arrived, the victim first verbally abused him and then refused to speak to him.
The appellant left the bar, unlawfully took a motor vehicle from a nearby street, and parked it outside the bar, where he was observed sitting in the vehicle. The victim later left the bar on foot with a friend. They crossed the road and turned right into a side street. The appellant approached from behind in the vehicle, struck the victim and drove on.
The appellant was arrested the following morning on suspicion of being involved in a hit-and-run incident. He stated that he was a schizophrenic on anti-psychotic medication and that he felt suicidal. He was then examined by a police doctor. No drugs or alcohol were present in his breath or blood, although a later urine sample tested positive for opiates as a result of the appellant’s use of heroin the previous morning. The doctor concluded that he was not suffering from withdrawal symptoms and was fit to be interviewed. In the interview, the appellant admitted taking the vehicle unlawfully but maintained that he had lost control of the vehicle whilst turning the corner into the side street and had mounted the pavement and collided with the victim.
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The police examination of the scene calculated that the victim was struck at between 22 and 27 m.p.h. at a distance of 28 metres from the corner and that this speed could not have been reached at the point of impact after successfully driving round the corner. It was only possible to reach it by driving straight into the side street under full acceleration. There was no evidence of any loss of control which would have caused the accident, either on the corner or in the side street and, in any case, a loss of control at any stage would have decreased the speed achieved.
The victim suffered a serious head injury and remained in hospital for a significant period. Two years later, he remained prone to aggression and violent outbursts and was unable to return to work.
The learned Judge of Appeal continued:]
5  The procedural history of this matter has been extensive and protracted because, at an early stage, counsel for Jason Prior indicated that consideration was being given to a defence of insanity at the time of the offence. The trial was set down for hearing in March 2000 but reports were not available in time and the trial coming before the Inferior Number was postponed to November 14th, 2000. In July 2000, the defence indicated to the Crown that it was of the opinion that the test laid down in McNaghten’s Case (4) could not meet the requirements of the European Convention on Human Rights and expressed the view that a preliminary hearing on the proper test for insanity should be held. Directions were sought from the Bailiff on November 3rd and November 6th, 2000 and, as a result of those directions, the trial date for November 14th, 2000 was vacated. A preliminary hearing was set for December 6th, 2000 and the trial was therefore postponed to February 7th, 2001. A hearing for the test for insanity took place before the Bailiff on December 6th, 2000 following which the Bailiff reserved his judgment. At the beginning of February 2001, the Bailiff had not yet delivered his judgment and accordingly the trial was further adjourned to June 6th, 2001. The Bailiff delivered his judgment on the issue of insanity at the time of the offence on February 9th, 2001.
6  At the time of the ruling by the Bailiff, which was restricted to mental capacity at the time of the offence and not related at all to fitness to plead, there were available three reports by Dr. Faiz (dated September 12th, 1999, February 17th, 2000 and April 27th, 2000), two reports by Dr. Stone, a consultant forensic psychiatrist of the Southampton Community Health Services NHS Trust (dated June 21st, 1999 and September 5th, 2000) and one by Dr. Sharkey, a consultant psychiatrist (dated April 10th, 2000). It is correct to say that, at the time of those reports, all these psychiatrists proceeded on the basis of the McNaghten principles, that is to say, that the test was whether (10 Cl. & Fin. at 210; 8 E.R. at 722)—
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“the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong”
—that is to say, they were applying a test of “insanity” which was not the same as mental illness as recognized today by medical science. Dr. Faiz, in his report of September 12th, 1999, considered that Jason Prior’s case was one of dual diagnosis, that is to say mental illness plus heavy drug abuse. He considered Jason Prior’s mental illness to be one of a—
“paranoid type of schizophrenia or paranoid personality condition which quite obviously gets more intense due to his drug abuse. He gets very deluded and paranoid that he is going to be attacked and he is subject to auditory hallucinations, in that he hears voices telling him to harm himself or others.”
In addition he added: “I doubt that he would have done what he did had he not been using street drugs and drink.”
7  Dr. Stone, in his report of June 21st, 1999, refers to the fact that, in his opinion, there does not appear to be evidence of a “process psychotic illness such as schizophrenia.” We were informed by Advocate Fogarty on behalf of the appellant that the word “process” in this context means “readily diagnosable by a psychiatrist.” He said that Jason Prior was experiencing psychotic symptoms but that he was responding well to treatment and that he hoped that they would have been resolved completely before the trial. The cause of the psychotic symptoms was most likely to have been the combination of serious drug misuse and the alcohol that he had been taking in recent years. At the time of that report he would not recommend psychiatric disposal if Jason Prior were convicted. Dr. Faiz, in his report of September 12th, 1999, stated that he had little to add to Dr. Stone’s report and that he had indeed advised the court to instruct Dr. Stone.
8  Dr. Faiz, in his report dated February 17th, 2000, refers to the fact that on original reception into prison, Jason Prior was acutely psychotic and was accordingly closely supervised in a camera-monitored cell and was prescribed medicaments. By the time of the report, following the medication, he reported that Jason Prior was feeling a lot better and that the voices had receded into the background. Dr. Faiz considered Jason Prior was suffering from mental illness, that is schizophrenia of a paranoid type, exacerbated by his use of drink and illicit drugs. He considered him to be fit to plead, but considered that he remained a very sick and quite vulnerable young man and that his prognosis was very poor.
9  Dr. Sharkey deals with Jason Prior in his report of April 10th, 2000. It is significant that he had interviewed Jason Prior in his capacity as
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consultant to the Alcohol and Drug Service on September 17th, 1998, that is to say some five months before the assault in question. In regard to his mental state at the time of the offence, he stated that he considered him to be “orientated in time, place and person and appeared able to concentrate for the duration of the interview, which lasted almost an hour and a half.” Dr. Sharkey, applying the McNaghten tests, considered that Jason Prior clearly had the ability to form intent. He considered that he suffered from schizophrenia and, although he considered that he was probably mentally ill at the time of the commission of the offence, it was not such that he did not know what he was doing and that he clearly knew that what he was doing was wrong. He considered him to be an exceedingly dangerous young man and that there was a real risk of his causing harm to himself and to other people. He considered that he was fit to plead in that he clearly understood the charges against him, knew the difference between pleas of guilty and not guilty, had been able to tell his lawyers his side of things and was well enough to be able to attend to his interests in court.
10  In his report dated April 5th, 2000, Dr. Stone considered that, based on his previous interview, and in the same respects as Dr. Sharkey, Jason Prior was fit to plead and did not satisfy the McNaghten tests of insanity.
11  Accordingly, it followed that if the McNaghten tests of insanity were to be applied, there could not possibly be a contention that Jason Prior was insane at the time of the offences. This would be fully consistent with the account of the matters set out above leading up to the assault in question and his subsequent interview in the presence of his mother and his legal adviser, which was only conducted after the Police Doctor, Dr. Holmes, had prescribed him fit to be interviewed. If there had been any question of insanity in the McNaghten terms, it is inevitable that this would have shown up in the events of the evening or the subsequent interviews or would have been raised by his mother or legal adviser. It was in the light of those circumstances that Advocate Fogarty sought a ruling on the meaning of insanity in Jersey law.
12  It is now necessary to consider the law in Jersey in respect of mental capacity. Under the Criminal Justice (Insane Persons) (Jersey) Law 1964, it is provided as follows:
“ARTICLE 1
PERSONS FOUND INSANE ON ACCUSATION OR TRIAL
    (1) If on the accusation or trial before the Royal Court of any person charged with any act or omission punishable with death or imprisonment, it appears to the court that the accused may be so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial, the court shall adjourn the case to
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enable the Superior Number of the Royal Court to try the question whether or not the accused is so insane as aforesaid.
    (2) Such trial shall be held by the Superior Number of the Royal Court as soon as may be at such time and place as the court may direct and may be held in the absence of the accused if it is proved to the satisfaction of the court by evidence (including the oral evidence of two medical practitioners who in the opinion of the court have had special experience in the diagnosis or treatment of mental disorders) that it is impracticable or inappropriate to bring him before the court.
    (3) If the Superior Number of the Royal Court finds the accused to be so insane as aforesaid, it shall be lawful for the original court to order him to be detained during Her Majesty’s pleasure; and until Her Majesty’s pleasure is known, he shall be detained in such place and in such manner as the court shall order and any such order may be varied from time to time as the court thinks fit.
ARTICLE 2
ACCUSED PERSONS FOUND INSANE AT THE TIME OF THE COMMISSION OF OFFENCE
    (1) If on the trial before the Royal Court of any person charged with any act or omission punishable with death or imprisonment, the jury is satisfied that the accused did the act or made the omission charged against him but that he was insane at the time when the act was done or omission made so as not to be responsible according to law for his actions, the jury shall return a special verdict to the effect that he did the act or made the omission charged but is not guilty on the ground that he was insane so as not to be responsible according to law at the time.
    (2) Where such special verdict is found, it shall be lawful for the court to order the accused to be detained during Her Majesty’s pleasure; and until Her Majesty’s pleasure is known, he shall be detained in such place or in the custody of such person and in such manner as the court shall order and any such order may be varied from time to time as the court thinks fit.
    (3) References in this Article to the jury shall, in relation to a trial without a jury, be construed as references to the court.”
The ruling sought from the Bailiff was only in respect of art. 2.
13  It will be appreciated that if a person is found to be insane, whether unfit to plead or unable to understand the nature of the trial (art. 1), or whether by reason that, when he did the act, he was in such a state at the
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time that he could not be held responsible according to law for his actions (art. 2), the consequence of either would be that the accused would be ordered to be detained during Her Majesty’s pleasure. That is to say that, in both cases, the accused would not undergo a trial but would nevertheless be held for an indeterminate period, which inevitably could, if the situation justified it, be for a very long time. It was in those circumstances that the Bailiff decided the preliminary issue of law as to what was the meaning of the word “insane” for the purposes of art. 2(1) of the aforesaid Law of 1964. It was contended on behalf of Jason Prior that the McNaghten Rules (4) were not the law in Jersey and that, in any event, the McNaghten Rules were outdated. Advocate Fogarty relied upon very extensive writings, in particular, opinions by Professor Gearty, Q.C. and Professor Mackay, Professor of Criminal Policy and Mental Health of De Montfort University, Leicester, and a chapter on unfitness to plead from Professor Mackay’s book on Mental Condition Defences in the Criminal Law, all of which we have considered in this appeal. Her contention was that the McNaghten test was incompatible with art. 5(1)(e) of the European Convention on Human Rights and she relied upon the case of Winterwerp v. Netherlands (8). This was because she contended that the McNaghten Rules were too wide and would allow a person who was not mentally ill to be detained on the basis of his insanity. As it was elaborated before this court, the argument completely changed and proceeded on the basis that the McNaghten Rules were too narrow in that a person who was suffering from mental illness could be tried as a criminal. The 1964 Act was therefore, she argued, incompatible with art. 3 and art. 6 of the European Convention on Human Rights.
14  The learned Bailiff in his judgment dated February 9th, 2001 concluded as follows (2001 JLR at 158):
    “Having considered carefully all the material before me and the helpful submissions of both counsel, I have reached the following conclusions:
    (a) The McNaghten Rules do not form part of the law of Jersey and do not therefore at first blush provide the answer to the question of the meaning of ‘insanity’ in the Criminal Justice (Insane Persons) (Jersey) Law 1964.
    (b) It is not necessary for me to decide whether the McNaghten Rules are in compliance with the requirements of the European Convention on Human Rights. It is, however, strongly arguable that their adoption in this jurisdiction, particularly in the absence of legislation equivalent to the 1991 Act, would involve a breach of art. 5 of the Convention.
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    (c) The adoption of the McNaghten Rules would also conflict with such evidence as there is as to the meaning of insanity in Jersey law in that the Rules do not admit of a volitional test.
    (d) The adaptation of the McNaghten Rules suggested by counsel for the Attorney General by interpreting a ‘defect of reason, from disease of the mind’ to mean ‘mental illness amounting to unsoundness of mind according to objective medical evidence’ would conflict with (c) above but is unattractive for another reason. To adopt the McNaghten Rules, notwithstanding all the criticisms of them from so many informed sources, but to adapt them so as to exclude much of the English case-law on their interpretation seems to me to involve having the worst of both worlds. Not only would I import English rules formulated in a bygone age which are inconsistent with the evidence given to the Royal Commissioners as to Jersey law, but I would also deprive the Jersey courts of the assistance of English precedents which have created a pragmatic, if not entirely satisfactory, body of law.
    (e) I should therefore adopt a definition of ‘insanity’ which is consistent with the evidence given to the Royal Commissioners in 1846, compliant with Convention rights under the Human Rights (Jersey) Law 2000, and appropriate to the state of medical knowledge in the 21st century.”
The learned Bailiff continued (ibid., at 159):
“31  Counsel for the defence laid out a number of options for me in the course of her submissions. I prefer, and I respectfully adopt, a definition suggested by Professor R.D. Mackay. I therefore hold that a person is insane within the meaning of art. 2 of the Criminal Justice (Insane Persons) (Jersey) Law 1964 if, at the time of the commission of the offence, his unsoundness of mind affected his criminal behaviour to such a substantial degree that the jury consider that he ought not to be found criminally responsible.
32  This test will permit objective medical evidence of a defendant’s unsoundness of mind to be given in the sense required by Convention jurisprudence while retaining a clear causal link between the offence and the mental disorder. It will also cater for defects of volition. I do not believe that the heavens will fall in as a result of this ruling. Juries in murder trials have had the responsibility of deciding whether volitional impairment can fall within the plea of diminished responsibility ever since the enactment of the Homicide (Jersey) Law 1987. The presumption of sanity remains, and it is for the defendant to prove the requisite degree of unsoundness of mind to justify the return of a special verdict. I
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propose therefore to direct the jury, or the Jurats as the case may be, accordingly.”
15  Although such a ruling was contrary to the submissions made by the Crown, it was decided, after consultation with the Attorney General and the Solicitor General (who appeared for the Crown before us), that there should be no appeal from that ruling. Accordingly, we must proceed on the basis that it is correct. However, for our part, we consider that at some more appropriate time the correctness of that ruling may have to be re-visited, not least because, in our opinion, the argument that the McNaghten Rules are incompatible with the European Convention on Human Rights does not seem to us to be correctly based, and even more so because the Bailiff of Guernsey has subsequently, having considered the Bailiff’s ruling in this case, reached exactly the opposite conclusion in relation to both historic practice in Guernsey and the Human Rights Convention in the case of Law Officers of the Crown v. Harvey (3). It would seem to us to be highly undesirable that the effect of “insanity” should be different in the two jurisdictions. In any event, we should add that it is our understanding that the whole law of insanity and diminished responsibility is under consideration in jurisdictions in the United Kingdom and it would seem highly desirable that any reform of the law should result from legislation and involve a co-ordinated law applicable in all jurisdictions in the United Kingdom and in the jurisdictions of Jersey and Guernsey.
16  Following that ruling, the consultant psychiatrists who had previously examined Jason Prior were asked to re-examine his case and apply the new test as expressed by the Bailiff in relation to the issue of insanity at the date of the offence. At that stage, no-one had suggested that the test of insanity in relation to the ability to plead was anything other than the conventional test as had previously been applied by the psychiatrists.
17  In his subsequent reports of April 23rd, 2001 and July 9th, 2001, Dr. Faiz did not re-visit the test for insanity, although he was requested to do so, but repeated that Jason Prior was a vulnerable person with a personality disorder and that he showed early manifestations of paranoid psychosis and drug-induced psychosis. He stated that in the background there were such factors as: drink and drug history from the age of 14; auditory hallucinations; his girlfriend had committed suicide using his prescribed medication; his coming off anti-psychotic drugs; and starting drinking and intravenous heroin use daily. Dr. Faiz repeated that Jason Prior had drunk a lot on the evening in question and had taken 0.125g. of heroin intravenously which had intensified his very strong proneness to psychosis and his consequent behaviour. In these reports, there is nothing to suggest that, applying the Bailiff’s test, he would have reached a
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different conclusion on the issue of insanity at the time of the offence to that which he had expressed earlier. His report of July 9th, 2001 states that he has nothing to add to his previous reports, which again supports that position.
18  Dr. Stone, in his report dated May 9th, 2001, in relation to the Bailiff’s test, considered that there was no evidence that Jason Prior was experiencing psychotic symptoms at the time of the offence. Even if it were correct that he was hearing voices at the time of the offence, he did not consider that this would be sufficient to affect his criminal behaviour to such a “substantial degree” that he should not be found criminally responsible. This was, in particular, because he considered that there were no deceptions or delusions (false beliefs) which are generally accepted to affect a mentally ill person’s behaviour far more than auditory hallucinations (voices). He also considered that Jason Prior seemed to be well aware of his actions in stealing the van, waiting for the man to come out of the pub and then driving towards him. Lastly, he considered that, in his opinion, Jason Prior did not suffer from a serious mental illness such as schizophrenia. Dr. Stone repeated that he considered Jason Prior to be well able to instruct counsel and generally to satisfy the tests of being able to plead to the indictment.
19  Dr. Sharkey, in his reports dated May 18th and June 26th, 2001, concluded that, whilst he could not discount the possibility that Jason Prior’s schizophrenia had an impact upon the commission of the crime, it was his opinion that intoxication and/or deviant aspects of his personality were the most likely influence. In a Forensic Nurse Specialist Report, dated July 13th, 2001, prepared by Mark Warren, he recorded that he considered that Jason Prior be given a criminal justice disposal such as the court may think fit.
20  It accordingly follows that, even applying the Bailiff’s test, there is no support whatsoever for a contention that the appellant satisfied the amended test for insanity at the time of the offence. By a letter dated May 30th, 2001, he decided to change his plea to one of guilty. This was notwithstanding that he had been advised, somewhat surprisingly on the basis of the documents that we have seen, that “the so-called insanity defence was open to him.” The letter had been drafted by counsel and was signed by Jason Prior. As a result of this a plea of guilty was duly entered.
21  Although this is only an appeal against sentence, Advocate Fogarty on behalf of Jason Prior contended that we should consider whether the issue of insanity at the time of the offence or at the time of the plea should not be raised by ourselves of our own motion. This we decline to do, not least because we do not consider that we, as a Court of Appeal, have jurisdiction, at least in the ordinary event, to do so. If there was a time for
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doing so, the time was before the Royal Court. No doubt was raised at that time by counsel for Jason Prior as to his capacity to enter a plea, nor was there anything in the evidence of the psychiatrists, whose reports were before the court, to support such a contention. Nor was it contended at that stage that the conventional test of fitness to plead was anything other than what it had always been thought to be.
22  It would only be in the most exceptional circumstances that any court could raise these matters of its own motion and against the express wishes of the defendant. That is clear from R. v. Dickie (5). The existence of the European Convention on Human Rights makes the warning of the dangers of doing this even more significant, for the Convention’s approach to insanity has always been to ensure that persons are not deprived of their right to a fair trial by being declared insane and subjected to indeterminate detention, without proper legal and medical procedures. But even if there could possibly, albeit exceptionally, be some cases where this issue could be raised by the Royal Court of its own volition, we consider that there can be no possible case in which such a matter could be raised by the Court of Appeal and ruled on by this court. The most the Court of Appeal could do would be to quash a conviction reached in breach of the law, notwithstanding the plea of guilty, and then order a new trial but that could not possibly be appropriate in the present case. Nothing that we have seen could possibly support a contention that there has been a miscarriage of justice.
23  Advocate Fogarty contended that the Bailiff’s ruling in relation to insanity under art. 2 inevitably affected the test of insanity in relation to the fitness to plead in relation to art. 1 and the conventional test of R. v. Pritchard (7). We do not accept that contention and it was never put forward before the Royal Court. The Bailiff thus had no opportunity to consider whether in fact the ruling in R. v. Pritchard had been applied in this jurisdiction. The question which was considered by the psychiatrists was the question whether Jason Prior was fit to plead in the Pritchard sense, i.e. whether he was able to instruct a solicitor and counsel, whether he understood the difference between pleading guilty and not guilty, and whether he understood the evidence before him and could give evidence in court. It was pointed out that there was no reference, unlike in Pritchard, to challenging jurors but, of course, even if this could be considered as a self-contained additional requirement, which we do not accept, that would be irrelevant as if there were to be a trial he would be put before Jurats. We do not consider that there is anything in the point raised in relation to fitness to plead. He clearly was fit to plead. Rejecting the advice of counsel to plead insanity, in the circumstances of the present case, with its consequence of indeterminate detention in preference for a definite term of imprisonment, cannot possibly of itself amount to evidence of unfitness to plead.
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24  We can now turn to the question of the contention of Advocate Fogarty that the sentence imposed on Jason Prior was manifestly excessive. In appraising the sentence of the Royal Court, the Deputy Bailiff reviewed the facts of the case, and stated as follows:
    “... In the case of Mallett, this court said that a grave and criminal assault covered a wide spectrum of offences, from something just above ordinary assault to something just short of attempted murder. In our judgment, this case is towards the very top end of the scale.
    We have derived some assistance from some cases to which we have been referred and which involve incidents where cars have been driven at police officers. The first is R. v. Hall where, after a chase, the offender reversed his car into a police officer. It was less serious than this case in our view because the injuries were less serious; the reversing was over a shorter distance and the intent was formed only moments before the incident took place. But, in that case the Court of Appeal upheld a sentence of 12 years after a trial. The second case is R. v. Boulter, which again arose after a chase by police vehicles. On that occasion, the defendant drove round a roundabout in such a manner as to collide head on with a chasing police car. The injuries to the police officer in that case were very serious, but the court dealt with it on the basis of recklessness—in other words, the offender did not intend to strike the police officer. In that case, the court reduced the sentence to 7½ years, and we infer that they took a starting point of about 10½ years.
    In the Jersey case of Att. Gen. v. Kelly, the offender reversed his car into a police motor cycle after a chase. Again, the decision appears to have been made at the last moment in an attempt to escape and the injuries were less serious than in this case. The speed would also appear to have been less. In that case, the Court of Appeal upheld a sentence of 7 years, despite the fact that the offender was a young offender. Finally, we were referred by Miss Fogarty to the case of R. v. Jones where a sentence of 18 months was imposed for driving a car at a person. The injuries appear to have been minimal and the whole incident rather less serious. But, even taking that into account, the case appears to be out of line with the other cases to which we have referred and we have not found it of assistance. In our judgment, the facts of this case are, in one sense, more serious than all of the others.”
The Deputy Bailiff continued:
    “This was a case where the defendant put his foot to the floor, some 28 metres from the victim, and drove his pick-up truck straight
2002 JLR 25
at him with a view to striking him deliberately from behind. The intention to do this was clearly formed some time earlier—at the latest when he was waiting outside the public house. In our judgment, a starting point of 12 years is correct, even allowing for the fact that this was not an attack on a policeman in the course of trying to escape.
    In mitigation, we take into account the guilty plea, although the evidence against the defendant was extremely strong. We also take into account that he has no previous convictions for violence, although he does have convictions for other offences. Miss Fogarty has relied most strongly on his mental state. We have had the benefit of a number of reports which we have read carefully. It is clear that this defendant does suffer from psychosis and was in a psychotic state at the time of the incident. The Crown sought to say that his failure to take medication, and his consumption of alcohol and drugs at the time, was an aggravating factor. We do not regard it in that light. However, neither do we think that it can be taken into account as a mitigating factor. In our judgment, this defendant has to be sentenced for what he actually did.
    Stand up please.
    In our judgment, the Crown have made adequate allowance for the points in mitigation and we therefore impose a sentence of 10 years’ imprisonment for this horrific assault on count 1. On count 2, the offence of taking and driving away, we impose a sentence of 12 months’ imprisonment on the basis that we think 18 months is too long, with a disqualification order for 2 years. On count 3, a fine of £100 or one week in default, concurrent. On count 4, a sentence of 12 months’ imprisonment and disqualification for 2 years. All of these are to run concurrently. In other words, the total sentence is 10 years’ imprisonment and a disqualification from driving for 2 years.”
25  Advocate Fogarty contended that the Deputy Bailiff should have ordered a Newton hearing on the issue of the consumption of alcohol, the taking of drugs and the failure to take medication. Not only was there no suggestion before the Royal Court that there should be such a hearing, but there would seem to be little, if any, difference between Jason Prior and his explanations given to the police and the psychiatrists, and the evidence of the prosecution on these issues. Indeed, almost all the evidence on these issues is undisputed or taken from what the appellant has told the police in interviews or told the psychiatrists. There is no suggestion in any psychiatric reports that what the appellant told the police or the psychiatrists was not correct. It is not sufficient merely to contend that because of his mental state his evidence was unreliable.
2002 JLR 26
26  However, in any event, there is considerable corroboration for his very considerable consumption of alcohol on the night in question and his various own admissions in relation to the drugs and the failure to take medication. There is no evidence that any of those admissions were unreliable or that the psychiatrists considered them to be unreliable to any significant extent.
27  Advocate Fogarty then suggested that the fact that the appellant was psychotic should have been treated as a mitigating factor. The Deputy Bailiff, despite being invited to do so by the Crown, did not consider that this was an aggravating factor but he also said that he did not treat it as a mitigating factor. We agree with his approach, particularly when the medical reports make it very clear that the psychotic state was greatly aggravated by his consumption of alcohol and his addiction to heroin. We also reject the contention that his failure to take medication was itself a mitigating factor. We see it, as did the Deputy Bailiff, as a neutral factor.
28  It was then contended that, in the light of the appellant’s medical state, the conduct of the victim amounted to a form of provocation and therefore this amounts to a mitigating factor. We do not accept that contention. Teasing and calling of names, even to a person with the appellant’s mental condition, could never amount to provocation in this case. There was no psychiatric evidence before the Royal Court which could support such a contention.
29  Finally, it was contended that the sentence of 10 years was in itself manifestly excessive. The Deputy Bailiff started from the basis of 12 years’ imprisonment and, applying the various mitigating factors which he set out, he arrived at a sentence of 10 years. The starting point of 12 years is taken from an English case involving serious assaults upon police officers, R. v. Hall (6), and two Jersey cases, Kelly v. Att. Gen. (2) and Att. Gen. v. Mallett (1).
30  In all those cases of assaults upon police officers, the court emphasized that a longer period of imprisonment would be appropriate in order to deter others and to protect the police and the public. However, although there was a factor in such cases which would increase the sentence because the attack was upon the police, in all those cases the attack was less premeditated than it was in the present case and the nature of the attack and its consequences were far less. Accordingly, although the factor that the police were not concerned in the present case might in itself suggest a slightly lower starting point, the factors that the assault was of such an extreme nature and so premeditated and had such lasting consequences for the victim take the level to 12 years. We entirely agree that 12 years is the appropriate starting point.
2002 JLR 27
31  Moreover, it must not be forgotten that at least two of the psychiatric reports describe the appellant as “dangerous” to himself and to the public, and this again is a reason why a level of 12 years would be appropriate. Taking the mitigating matters into account, we consider that the Deputy Bailiff was correct in applying a limited reduction as he did, and accordingly not only do we consider that the sentence of 10 years was not manifestly excessive, but that it was correct.
Application dismissed.
Page last updated 03 Dec 2009