Where a defendant was held, by a jury, to be unfit to stand trial the proposition that if those responsible for custody of S were guilty of impropriety, that supported a complaint against the conduct of the prosecution which amounted to an abuse of process, could not be supported.On 30 August 2001 at Snaresbrook Crown Court the defendant, ('S') pleaded not guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of class B drugs namely cannabis and assaulting a Customs officer contrary to s.16(1)(a) Customs and Excise Management Act 1979. S further pleaded guilty to an allegation of escape in a separate indictment. On 4 December 2001 the jury found S to be unfit to be tried under s.4 Criminal Procedure (Insanity) Act 1964. On 5 December he was found to have done the act in respect of both offences under s.4(A) of the 1964 Act. On 5 April 2002 S was given absolute discharges for both offences and sentenced to six months for escape. S appealed, with leave of the single judge, against the finding that he was unfit to stand trial and the finding that he had done the acts giving rise to the offences. S renewed his application for leave to appeal against the judge's refusal to vacate the plea of guilty to escape after refusal by the single judge. S arrived from Zurich with two others. A suitcase in S's possession was found to contain cannabis. S assaulted the Customs officer, by punching him, when he tried to arrest him. At the first proceedings before the jury, unchallenged evidence was given by a doctor for the prosecution that decompression caused by a diving accident a few days before S came to the country lead to the "bends". That caused psychological problems including memory deficiency, damage to his optic nerves and cognitive defects. In light of the unchallenged evidence the jury unanimously found S was unfit to be tried. Unchallenged evidence was given at the trial on whether S had done the acts giving rise to the two offences. S appealed on the grounds that the prosecution was guilty of abuse. The Secretary of State for the Home Department, who was responsible for the custody of S following arrest and pending the jury's determination, was working directly with Customs and Excise to bring S to trial. The prosecution had a duty to consider the health of S and the decision by the prison authorities not to permit S to have medical treatment for his condition, which he should have received, made S's condition substantially worse. Organs of the State had contributed to S's admitted unfitness to be tried and therefore the judge should have stayed the proceedings and allowed investigation into why S was unfit and permit S to adduce expert evidence as to the effect of the want of treatment regarded as appropriate. Authorities, for example, R v Feltham Magistrates Court ex parte Mohammed Rafiq Ebrahim (2001) 2 CAR 427, highlighted how the courts must be astute to abuse of process by organs of the state.HELD: (1) The general principle on abuse of process by organs of the state was correct. However, all the authorities referred to concerned applications to stay trials of guilt. S was not subjected to a trial of guilt because of the statutory proceedings under the 1964 Act. (2) The Court of Appeal's powers were statutory and S's right to appeal the jury's decision existed because of the statutory provision contained in s.15 of the 1964 Act. S put the matter that a challenge to the safety of the jury's verdicts could be mounted on the basis the judge had refused a stay for abuse of process. (3) The difficulty at the heart of S's submissions was identifying any abuse of process by the prosecution in relation to S. It would be untenable to suggest, that the prosecution by having recourse to statutory procedures provided for when questions arose regarding fitness to stand trial could give rise to an abuse of process. (4) The proposition that if those responsible for custody of S were guilty of impropriety, that supported a complaint against the conduct of the prosecution could not be supported. If there was any impropriety it was susceptible to remedy, for example judicial review to seek to require the prison authorities to provide medical treatment, or possible recourse to the civil courts for damages if S was treated tortuously. It did not afford a basis for ordering a stay against the prosecution.Appeal dismissed. Application to renew leave to appeal refused.

[2003] EWCA Crim 1097

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