No: 2002/01861/X2
Neutral Citation Number: [2002] EWCA Crim 2264 
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
								Royal Courts of Justice
								The Strand
								London WC2

								Friday  4  October  2002

B e f o r e:

LORD  JUSTICE  JUDGE

MRS  JUSTICE  RAFFERTY

and

THE  RECORDER  OF  LIVERPOOL

(His Honour Judge Clarke QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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KAY  JASON  MARTIN

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)

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MR O DAVIES QC appeared on behalf of THE APPELLANT
MR DAVID EVANS QC appeared on behalf of THE CROWN
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J U D G M E N T
Friday 4 October 2002
1.	LORD JUSTICE JUDGE:  This is an unusual and slightly problematic appeal. We do not propose to give a lengthy judgment. An application has been made by Mr Evans QC on behalf of the Crown that the appeal should be adjourned. The application is objected to on behalf of the appellant.
2.	We do not think there is any alternative to an adjournment. The reality of the case is this. There was a finding that this young man was unfit to plead. There is now a letter in the possession of Mr Evans, which he has shown both to Mr Davies and the Court, from the Home Office which is responsible for looking after the appellant, to suggest that he is now fit to plead. If he were fit to plead, then so much the better. The issue of whether he is guilty or not guilty of murder can then be ventilated in front of a jury. 
3.	The sub-problem to the letter from the Home Secretary can be summarised in this way. Neither side has any medical evidence. Mr Evans has not seen any medical report substantiating the contents of the letter from the Home Office. Until he has had a chance to see that and exercised his own independent judgment about its value, in the end the bare assertion by the Home Office has been untested. 
4.	Equally, Mr Davies has had no opportunity to have his client further examined to see whether he can accept the assertion by the Home Office. That issue also needs to be explored. 
5.	The other aspect of the case is the consequence if the appellant is indeed now fit to plead. It will have an impact on the present appeal. It may mean that there is no need for an appeal because such an appeal would be academic. Mr Davies is troubled -- and it is an important ground of the appeal he wishes to argue -- about the decision of the trial judge, to permit the evidence of a crucial witness to be read rather than prevent it being put before the jury. Mr Davies suggests that the views of this court about the admissibility of Tamba Bona's evidence would be valuable in the event that the Crown decide to proceed with the charge of murder. 
6.	As to that issue our view is very clear. It would not bind a trial judge. It would confuse the picture before him. He would have to exercise his own discretion in the light of the material as it was before him, including up-dating about the position of Tamba Bona and whether or not (and if not, why not?) he was unable to give evidence. It seems to us that we would make the position of the trial judge, if there is to be a trial, more, not less difficult if we were to try and resolve whether the discretion of the judge who heard the issue in this case was rightly or wrongly exercised. Accordingly we shall allow the adjournment. 
7.	We are concerned to keep momentum on the case. Obviously, as both sides agree, there should be finality. There should be finality for everybody, both for the appellant and for the families of the victim (because there undoubtedly was a victim) in this case. 
8.	Mr Evans, please would you return to the court two weeks from today at ten o'clock with an up-date on all the various issues which we have canvassed with you in the course of the morning and in this short judgment. Please would you notify Mr Davies of the position that you are going to take and let us have anything in writing as soon as you can, preferably before the Friday morning? We reserve half an hour for the discussions and we will start at ten o'clock. We hope that will not be inconvenient for you and, Mr Davies, we hope that it will not be inconvenient for you. 
9.	MR DAVIES: I will be here for certain. 
10.	LORD JUSTICE JUDGE: Very well. Thank you. I do not think we need make any orders in your favour, you have just to get on with all the enquiries. 
11.	Mr Davies, we are slightly concerned about your client's position in relation to support from public funds. Does the order extend to a solicitor for him? 
12.	MR DAVIES: It does not. 
13.	LORD JUSTICE JUDGE: It should do, should it not? 
14.	MR DAVIES: It should, in our submission, because there is otherwise a lacuna. There is no public funding for an independent test and it would assist greatly. 
15.	LORD JUSTICE JUDGE: We shall certainly order that it is appropriate for you to have a solicitor to instruct you and to look after the interests of Kay Martin, and we will further indicate that in our judgment if you and your solicitor take the view that you need medical reports of your own on your client, that legal aid should be extended to it. 
16.	MR DAVIES: My Lord, that is very helpful. 
17.	LORD JUSTICE JUDGE: Two reports. We will not say what we think they should be. That is really for you and your instructing solicitor to decide, but we doubt whether a psychiatric report on its own is what you will be after. You presumably would want some sort of psychologist's report? 
18.	MR DAVIES: Exactly. 
19.	LORD JUSTICE JUDGE: We make no express finding about that. We will say that the legal aid extends to two medical reports (using that in its broadest sense). 
20.	MR DAVIES: Thank you very much, my Lord. 
21.	LORD JUSTICE JUDGE: The Recorder of Liverpool points out that the order is intended to cover the attendance of your solicitor today.
22.	MR DAVIES: My Lord, I am very grateful. Thank you. 
23.	LORD JUSTICE JUDGE: Very well.