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Court of Appeal ruling on fitness to plead

R v Cooley [2018] EWCA Crim 2648

A Court of Appeal judgment confirms the difficulty of getting a guilty plea set aside on the grounds that the appellant was unfit to plead.


The appellant had, at age 19, committed various sexual offences against younger children. The offences generally involved the inappropriate touching of children the appellant found in public.  He had previous history of committing similar offences.  The lawyers the appellant had, in advance of his trial, commissioned a psychiatric and a psychological report.  The former concluded he was fit to plead provided a registered intermediary was available and the latter concluded that he was not fit to plead.  The appellant entered guilty pleas to all charges.

The appellant then instructed a solicitor with considerable experience representing those with autism to review the case.  The solicitor instructed a consultant forensic psychiatrist with considerable experience of autism.  This psychiatrist’s report concluded the appellant was unfit to plead.  As to whether he could decide whether to plead guilty or not guilty, the psychiatrist ventured the view that the use of an intermediary would enable him to do so and if proceedings took place the presence of an intermediary would help him to understand the course of those proceedings but it would not enable him to meet any of the remaining Pritchard criteria.  The Court of Appeal acknowledged that the appellant did not have an intermediary present when he entered his plea but concluded that in the circumstances it would not have made a difference to his plea (see paragraph 34).  The appeal against conviction was dismissed.

In relation to sentence the judgment states ‘we think that the judge should have been persuaded that the level at which the Appellant functions was not that of a 19-year-old. We do not need to repeat the contents of the various reports, but he demonstrated some child-like features that are a reflection of his underlying mental health issues. Furthermore, in his case custody has been more difficult for him to bear than for others’ (paragraph 51). The appeal against sentence was allowed and the custodial term was reduced from 40 months to 30.


This case illustrates how difficult it can be to remedy the situation if mistakes are made early on in the trial preparation process.  It is essential that children and young people are represented by lawyers who have the correct expertise and that the appropriate experts are instructed.