Cooley [2018] EWCA Crim 2648
Summary
Regina v Benjamin Cooley [2018] EWCA Crim 2648 concerned an appeal against conviction and sentence by a young man with multiple mental disorders who pleaded guilty to eight offences of sexual assault and breaching a sexual offender order; the Court of Appeal granted permission to appeal, rejected the argument that the appellant had been unfit to plead, but reduced the total sentence from 40 months to 30 months detention in a young offender institution.
Mr Cooley, who was born on 27 August 1998, pleaded guilty on 2 November 2017 before His Honour Judge Moss to one count of sexual assault, four counts of breaching a sex offender order, and three counts of sexual assault on a child under 13. On 30 November 2017 His Honour Judge Black at Guildford Crown Court sentenced him to a total of 40 months detention in a young offender institution. Mr Cooley had been in custody since August 2017 following his arrest for the final assault. Provisions of the Sexual Offences (Amendment) Act 1992 were noted to apply to the victims.
Mr Cooley had significant personal difficulties underlying his offending, including attention deficit hyperactivity disorder, autistic spectrum disorder, Tourette’s syndrome, learning disability and mild intellectual disability. He had been adopted as a baby and his adoptive parents remained closely involved in his welfare. On 3 July 2017, shortly before the offending in question, Mr Cooley had been sentenced at Surrey Magistrates’ Court to a community order and a sex offender order for taking a child without lawful authority and pursuing a course of harassment in relation to another child. The sex offender order prohibited him from talking to or attempting to communicate with any child under 16 whether face to face or via electronic means. The circumstances of those earlier offences involved enticing a 13 year old child away from a park with the promise of a free iPhone and attempting to take the child to his home, and following and threatening a 13 year old female. He had pleaded not guilty to those matters and proceeded to trial. There had also been an incident when Mr Cooley was aged 14 in which he approached an eight year old boy in a public swimming pool changing room, tickled his stomach and put his hands down the boy’s swimming trunks touching his penis, for which he received a conditional caution.
A pre-sentence report dated 30 June 2017 prepared for the magistrates’ court referred to a psychiatric report concluding that Mr Cooley would be unlikely to act upon the terms of any court order involving a social judgment because of his developmental difficulties. The author also identified a treatment need surrounding his apparent sexual interest in children.
The offending to which Mr Cooley pleaded guilty comprised four separate incidents. On 17 July 2017, in breach of the sex offender order, he alighted from a bus at the same time as a 14 year old male complainant HS, approached him, grabbed him by the arm and asked “Do you like that?” When HS asked what he was doing, Mr Cooley replied that it was just a joke and walked off. HS reported this to his mother upon returning home.
Later the same evening at about 6.30 pm, an eight year old boy HSH was in a Tesco lavatory with his father when Mr Cooley approached him, touched his stomach, asked whether he liked it, grabbed and tickled him at the same time, and asked him to lift up his T-shirt. HSH was able to enter a cubicle and Mr Cooley left. HSH returned to his father afterwards. On 20 July 2017 Mr Cooley surrendered himself to Staines Police Station and answered no comment in interview. Two days later, by agreement, a Buddi GPS personal tag and electronic tracker was fitted to monitor his movements.
On 6 August 2017 an eight year old boy JR was in Poundland with his mother when Mr Cooley poked him in the chest and called him to a corner of the shop. He then tickled JR’s chest and put his hands down JR’s trousers, with his hand going inside the boy’s underwear and onto his penis. He repeated the tickling and the hand sequence three or four times and told JR not to tell his mother, but JR did so and the police were called. On 14 August 2017 at about 2 pm a ten year old boy RU was walking to a friend’s house when Mr Cooley, who was ahead and repeatedly looking back, stopped when RU entered an alleyway. As RU went to pass, Mr Cooley moved towards him and touched his groin with his open hand. RU pushed his hand away and screamed. Mr Cooley said he was only joking and left. He was arrested shortly afterwards and remained in custody thereafter.
The fact that the offences were committed against the background of the sex offender order and whilst wearing the Buddi tracker suggested behaviour that Mr Cooley could not easily control. No treatment had been put in place by then to address it. The sentencing judge described the offending as largely at the lower end of the scale but was concerned about possible future escalation.
During preparation for the proceedings, Mr Cooley’s then solicitors commissioned a psychological report dated 25 October 2017 from Dr Alison Conning and a psychiatric report dated 26 October 2017 from Dr Michael Alcock. Dr Conning, who had seen Mr Cooley previously, expressed the view, although recognising that fitness to plead was usually a matter for psychiatric opinion, that as a consequence of his various disorders it was highly unlikely that he would be able to understand the course of proceedings at trial so as to make a proper defence, understand the substance of the evidence, give adequate instructions to his legal advisers, or plead with understanding to the indictment. Dr Alcock, by contrast, concluded that although finely balanced it was his opinion that Mr Cooley’s mental disorders were not of a nature or degree that would impair his cognitive capacity to an extent rendering him unfit to plead and stand trial and therefore the standard Pritchard criteria could be met, provided a registered intermediary was available to assist him in communication with his legal advisers and when participating in the trial itself. Crucially, Dr Alcock said he considered Mr Cooley had the ability to understand the charges and to decide whether to plead guilty or not guilty.
At the plea and trial preparation hearing before Judge Moss on 2 November 2017, neither report had been shown to the judge nor downloaded to the Digital Case System, but counsel then appearing for Mr Cooley summarised the conclusions of each, using the expression that Dr Alcock was of the view that Mr Cooley was “fit”. This shorthand probably did not fully reflect the more nuanced view in Dr Alcock’s report. Nonetheless, the exchanges in court revealed a robust view by the judge about the need to make progress with the case, and even had the matter been examined in greater detail the conclusion on the available evidence would likely have been that Mr Cooley could decide whether to plead guilty or not guilty, that being Dr Alcock’s expressed view. The judge wanted Mr Cooley to be arraigned and gave counsel an opportunity to take further instructions. After a consultation with Mr Cooley via video-link in the detention centre, which were not ideal circumstances for a consultation, the case returned to court, Mr Cooley was arraigned and pleaded guilty to all counts. His father, who had seen CCTV images of at least some of the incidents, contributed his views to counsel before counsel spoke to Mr Cooley. There appeared to be a difference in recollection between counsel and the father about what the father said.
Following sentence, through the efforts of people who knew Mr Cooley’s father, arrangements were made for Ms Karen Todner, a consultant solicitor with GSG Law Limited specialising in representing those on the autistic spectrum, to review the case. She asked Dr Juli Crocombe, a consultant forensic psychiatrist with considerable experience of autism, to prepare a report on Mr Cooley. Dr Crocombe’s report was dated 29 March 2018 and was prepared after seeing Mr Cooley for two hours at HMP Highdown, speaking to his parents and reading various previous reports including those of Dr Conning and Dr Alcock. Her conclusion was that Mr Cooley was not fit to plead, primarily because of his diagnosis of mild intellectual disability and autistic spectrum disorder, both lifelong developmental disorders. She stated it was possible to say he would not have been fit to plead at the time of the hearing in November 2017 and he would not become fit to plead in the future. On the question of whether he could decide whether to plead guilty or not guilty, she expressed 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 understand the course of proceedings, but it would not enable him to meet any of the remaining Pritchard criteria.
Mr Adam Morgan, instructed by Ms Todner, sought to adduce Dr Crocombe’s evidence pursuant to section 23 of the Criminal Appeal Act 1968. He submitted there was in fact little between the views of Dr Alcock and Dr Crocombe, both being of the view that an intermediary was necessary whenever Mr Cooley was discussing matters with his legal advisers. The court observed that this was not how Mr Cooley’s previous solicitors or counsel had interpreted Dr Alcock’s report and it did not immediately stand out as his opinion. Given his view that Mr Cooley was able to decide between pleading guilty or not guilty, that appeared to be a decision which could be expected to have been made without the intervention of an intermediary. The court considered that this would have been the position taken by Judge Moss had his attention been drawn to Dr Alcock’s report and such a conclusion would not have been wrong.
The court further reasoned that even if its view on that matter was wrong, since the views of at least two registered medical practitioners are required to support a conclusion that a defendant is not fit to plead, there would have been an insufficient evidential basis for the issue to be raised before Judge Moss. However, the court thought it right to consider what would have been the position had an intermediary been available during the discussion about the appropriate plea or pleas on 2 November 2017. If an intermediary had been present, he or she would have explained the nature of the charges. Mr Cooley would probably have said that he did not remember any of the incidents, which had largely been his position. If so, his legal advisers through the intermediary would have explained that he was not really in a position substantially to challenge what each complainant had said. It might have been said to him that he could put the prosecution to proof by calling the children to give evidence, but doubtless it would also have been explained that he could forfeit any credit by pleading guilty by putting the children through that ordeal. The court found it impossible to believe that Mr Cooley would have failed to understand that, assisted by counsel and perhaps his father. If that analysis was correct, and the court considered that it was, the same position would have been reached on 2 November as was in fact reached without the intervention of an intermediary. It followed that in the court’s view, in the circumstances of the case, the presence of an intermediary would not have made any difference.
The court noted that setting aside a plea of guilty on the basis sought was, as the single judge observed, a difficult task. The court did not consider the relevant threshold had been reached in the present case and whilst it gave permission for the argument to be advanced, it rejected it and dismissed the appeal against conviction.
On the question of sentence, the court adjourned consideration in light of the helpful intervention of Miss Jennifer Francis, the court’s duty probation officer, who the court had invited to review the up-to-date position in the case. She felt that there may have been unaddressed features that could be looked at by multi-agency public protection arrangements and raised the possibility of a community disposal at that stage, possibly in the context of a suspended sentence order. Without prejudice to any final decision, the court felt it needed more information before taking the issue further. The court subsequently received further helpful input from Miss Ann Poulton, Mr Cooley’s current offender manager. At very short notice she produced a five-page letter indicating a number of factors to be considered.
If the court was to accept any proposal that involved Mr Cooley’s immediate release, he would be required to live with his parents, report to the police within a matter of days and then engage with the multi-agency public protection arrangements team which would convene on 6 September to consider the way forward. Miss Poulton stated in her letter that having interviewed him via video-link as part of general case management, it was her assessment that at that stage Mr Cooley demonstrated limited insight into the triggers and motives for his behaviour although he stated that he recognised that he could benefit from help. This, along with existing treatment needs, suggested that the potential for further offending was an immediate concern. It was consequently her view that his risk could not be managed in the community without a robust and stringent risk management plan and he should remain in custody at this time allowing the National Probation Service and other agencies to prepare for his release in a controlled way. She also itemised two risk factors of relevance, being unexplored triggers and motives which would help Mr Cooley understand his behaviour and build a relapse prevention plan, and that risk would prevail whilst deviant sexual interests remained unknown and untreated. This mirrored the concerns expressed in the pre-sentence report dated 30 June 2017. The prophecy in that report was realised by the offending the subject of this case only a matter of a month or so after that report was written.
Miss Poulton stated that factors likely to reduce risk were full exploration and understanding of triggers and motives both by Mr Cooley and by professionals, full exploration and understanding of deviant sexual interests and presence of a robust treatment plan, and treatment needs being fully identified and presence of plans to address them and develop effective relapse prevention plans. She drew attention to the fact that unfortunately there were no suitable offending behaviour courses available at HMP Highdown at that time so Mr Cooley had not completed any treatment. He had been engaging with the mental health in-reach team on a bi-weekly basis, as well as having an assessment by adult social care, but that was not the same as treatment for his offending behaviour.
The court concluded it was obvious that there was a risk to the public of releasing him immediately and it would be of no benefit to him to do so if within a short period he was to resume his offending, which he was likely to do unless arrangements were set in place for the kind of treatment he required. The sentencing judge had no constructive plan before him even to consider some kind of treatment approach and he could not be criticised in those circumstances for imposing a significant custodial sentence to protect the public. However, the longer term protection of the public required Mr Cooley’s problems to be addressed. The recent interventions of the probation service indicated to the court that arrangements could be put in place to this end within the community, but they would require planning and proper implementation. They would require the co-operation of Mr Cooley and his family. Given his incarceration for a lengthy period of time, it was to be hoped that the incentive for such co-operation would be in place.
Although the court’s decision was not dictated by this new evidence, it had assisted in coming to the view reached. The court thought the judge should have been persuaded that the level at which Mr Cooley functioned was not that of a 19 year old. The court
Mr Cooley, who was born on 27 August 1998, pleaded guilty on 2 November 2017 before His Honour Judge Moss to one count of sexual assault, four counts of breaching a sex offender order, and three counts of sexual assault on a child under 13. On 30 November 2017 His Honour Judge Black at Guildford Crown Court sentenced him to a total of 40 months detention in a young offender institution. Mr Cooley had been in custody since August 2017 following his arrest for the final assault. Provisions of the Sexual Offences (Amendment) Act 1992 were noted to apply to the victims.
Mr Cooley had significant personal difficulties underlying his offending, including attention deficit hyperactivity disorder, autistic spectrum disorder, Tourette’s syndrome, learning disability and mild intellectual disability. He had been adopted as a baby and his adoptive parents remained closely involved in his welfare. On 3 July 2017, shortly before the offending in question, Mr Cooley had been sentenced at Surrey Magistrates’ Court to a community order and a sex offender order for taking a child without lawful authority and pursuing a course of harassment in relation to another child. The sex offender order prohibited him from talking to or attempting to communicate with any child under 16 whether face to face or via electronic means. The circumstances of those earlier offences involved enticing a 13 year old child away from a park with the promise of a free iPhone and attempting to take the child to his home, and following and threatening a 13 year old female. He had pleaded not guilty to those matters and proceeded to trial. There had also been an incident when Mr Cooley was aged 14 in which he approached an eight year old boy in a public swimming pool changing room, tickled his stomach and put his hands down the boy’s swimming trunks touching his penis, for which he received a conditional caution.
A pre-sentence report dated 30 June 2017 prepared for the magistrates’ court referred to a psychiatric report concluding that Mr Cooley would be unlikely to act upon the terms of any court order involving a social judgment because of his developmental difficulties. The author also identified a treatment need surrounding his apparent sexual interest in children.
The offending to which Mr Cooley pleaded guilty comprised four separate incidents. On 17 July 2017, in breach of the sex offender order, he alighted from a bus at the same time as a 14 year old male complainant HS, approached him, grabbed him by the arm and asked “Do you like that?” When HS asked what he was doing, Mr Cooley replied that it was just a joke and walked off. HS reported this to his mother upon returning home.
Later the same evening at about 6.30 pm, an eight year old boy HSH was in a Tesco lavatory with his father when Mr Cooley approached him, touched his stomach, asked whether he liked it, grabbed and tickled him at the same time, and asked him to lift up his T-shirt. HSH was able to enter a cubicle and Mr Cooley left. HSH returned to his father afterwards. On 20 July 2017 Mr Cooley surrendered himself to Staines Police Station and answered no comment in interview. Two days later, by agreement, a Buddi GPS personal tag and electronic tracker was fitted to monitor his movements.
On 6 August 2017 an eight year old boy JR was in Poundland with his mother when Mr Cooley poked him in the chest and called him to a corner of the shop. He then tickled JR’s chest and put his hands down JR’s trousers, with his hand going inside the boy’s underwear and onto his penis. He repeated the tickling and the hand sequence three or four times and told JR not to tell his mother, but JR did so and the police were called. On 14 August 2017 at about 2 pm a ten year old boy RU was walking to a friend’s house when Mr Cooley, who was ahead and repeatedly looking back, stopped when RU entered an alleyway. As RU went to pass, Mr Cooley moved towards him and touched his groin with his open hand. RU pushed his hand away and screamed. Mr Cooley said he was only joking and left. He was arrested shortly afterwards and remained in custody thereafter.
The fact that the offences were committed against the background of the sex offender order and whilst wearing the Buddi tracker suggested behaviour that Mr Cooley could not easily control. No treatment had been put in place by then to address it. The sentencing judge described the offending as largely at the lower end of the scale but was concerned about possible future escalation.
During preparation for the proceedings, Mr Cooley’s then solicitors commissioned a psychological report dated 25 October 2017 from Dr Alison Conning and a psychiatric report dated 26 October 2017 from Dr Michael Alcock. Dr Conning, who had seen Mr Cooley previously, expressed the view, although recognising that fitness to plead was usually a matter for psychiatric opinion, that as a consequence of his various disorders it was highly unlikely that he would be able to understand the course of proceedings at trial so as to make a proper defence, understand the substance of the evidence, give adequate instructions to his legal advisers, or plead with understanding to the indictment. Dr Alcock, by contrast, concluded that although finely balanced it was his opinion that Mr Cooley’s mental disorders were not of a nature or degree that would impair his cognitive capacity to an extent rendering him unfit to plead and stand trial and therefore the standard Pritchard criteria could be met, provided a registered intermediary was available to assist him in communication with his legal advisers and when participating in the trial itself. Crucially, Dr Alcock said he considered Mr Cooley had the ability to understand the charges and to decide whether to plead guilty or not guilty.
At the plea and trial preparation hearing before Judge Moss on 2 November 2017, neither report had been shown to the judge nor downloaded to the Digital Case System, but counsel then appearing for Mr Cooley summarised the conclusions of each, using the expression that Dr Alcock was of the view that Mr Cooley was “fit”. This shorthand probably did not fully reflect the more nuanced view in Dr Alcock’s report. Nonetheless, the exchanges in court revealed a robust view by the judge about the need to make progress with the case, and even had the matter been examined in greater detail the conclusion on the available evidence would likely have been that Mr Cooley could decide whether to plead guilty or not guilty, that being Dr Alcock’s expressed view. The judge wanted Mr Cooley to be arraigned and gave counsel an opportunity to take further instructions. After a consultation with Mr Cooley via video-link in the detention centre, which were not ideal circumstances for a consultation, the case returned to court, Mr Cooley was arraigned and pleaded guilty to all counts. His father, who had seen CCTV images of at least some of the incidents, contributed his views to counsel before counsel spoke to Mr Cooley. There appeared to be a difference in recollection between counsel and the father about what the father said.
Following sentence, through the efforts of people who knew Mr Cooley’s father, arrangements were made for Ms Karen Todner, a consultant solicitor with GSG Law Limited specialising in representing those on the autistic spectrum, to review the case. She asked Dr Juli Crocombe, a consultant forensic psychiatrist with considerable experience of autism, to prepare a report on Mr Cooley. Dr Crocombe’s report was dated 29 March 2018 and was prepared after seeing Mr Cooley for two hours at HMP Highdown, speaking to his parents and reading various previous reports including those of Dr Conning and Dr Alcock. Her conclusion was that Mr Cooley was not fit to plead, primarily because of his diagnosis of mild intellectual disability and autistic spectrum disorder, both lifelong developmental disorders. She stated it was possible to say he would not have been fit to plead at the time of the hearing in November 2017 and he would not become fit to plead in the future. On the question of whether he could decide whether to plead guilty or not guilty, she expressed 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 understand the course of proceedings, but it would not enable him to meet any of the remaining Pritchard criteria.
Mr Adam Morgan, instructed by Ms Todner, sought to adduce Dr Crocombe’s evidence pursuant to section 23 of the Criminal Appeal Act 1968. He submitted there was in fact little between the views of Dr Alcock and Dr Crocombe, both being of the view that an intermediary was necessary whenever Mr Cooley was discussing matters with his legal advisers. The court observed that this was not how Mr Cooley’s previous solicitors or counsel had interpreted Dr Alcock’s report and it did not immediately stand out as his opinion. Given his view that Mr Cooley was able to decide between pleading guilty or not guilty, that appeared to be a decision which could be expected to have been made without the intervention of an intermediary. The court considered that this would have been the position taken by Judge Moss had his attention been drawn to Dr Alcock’s report and such a conclusion would not have been wrong.
The court further reasoned that even if its view on that matter was wrong, since the views of at least two registered medical practitioners are required to support a conclusion that a defendant is not fit to plead, there would have been an insufficient evidential basis for the issue to be raised before Judge Moss. However, the court thought it right to consider what would have been the position had an intermediary been available during the discussion about the appropriate plea or pleas on 2 November 2017. If an intermediary had been present, he or she would have explained the nature of the charges. Mr Cooley would probably have said that he did not remember any of the incidents, which had largely been his position. If so, his legal advisers through the intermediary would have explained that he was not really in a position substantially to challenge what each complainant had said. It might have been said to him that he could put the prosecution to proof by calling the children to give evidence, but doubtless it would also have been explained that he could forfeit any credit by pleading guilty by putting the children through that ordeal. The court found it impossible to believe that Mr Cooley would have failed to understand that, assisted by counsel and perhaps his father. If that analysis was correct, and the court considered that it was, the same position would have been reached on 2 November as was in fact reached without the intervention of an intermediary. It followed that in the court’s view, in the circumstances of the case, the presence of an intermediary would not have made any difference.
The court noted that setting aside a plea of guilty on the basis sought was, as the single judge observed, a difficult task. The court did not consider the relevant threshold had been reached in the present case and whilst it gave permission for the argument to be advanced, it rejected it and dismissed the appeal against conviction.
On the question of sentence, the court adjourned consideration in light of the helpful intervention of Miss Jennifer Francis, the court’s duty probation officer, who the court had invited to review the up-to-date position in the case. She felt that there may have been unaddressed features that could be looked at by multi-agency public protection arrangements and raised the possibility of a community disposal at that stage, possibly in the context of a suspended sentence order. Without prejudice to any final decision, the court felt it needed more information before taking the issue further. The court subsequently received further helpful input from Miss Ann Poulton, Mr Cooley’s current offender manager. At very short notice she produced a five-page letter indicating a number of factors to be considered.
If the court was to accept any proposal that involved Mr Cooley’s immediate release, he would be required to live with his parents, report to the police within a matter of days and then engage with the multi-agency public protection arrangements team which would convene on 6 September to consider the way forward. Miss Poulton stated in her letter that having interviewed him via video-link as part of general case management, it was her assessment that at that stage Mr Cooley demonstrated limited insight into the triggers and motives for his behaviour although he stated that he recognised that he could benefit from help. This, along with existing treatment needs, suggested that the potential for further offending was an immediate concern. It was consequently her view that his risk could not be managed in the community without a robust and stringent risk management plan and he should remain in custody at this time allowing the National Probation Service and other agencies to prepare for his release in a controlled way. She also itemised two risk factors of relevance, being unexplored triggers and motives which would help Mr Cooley understand his behaviour and build a relapse prevention plan, and that risk would prevail whilst deviant sexual interests remained unknown and untreated. This mirrored the concerns expressed in the pre-sentence report dated 30 June 2017. The prophecy in that report was realised by the offending the subject of this case only a matter of a month or so after that report was written.
Miss Poulton stated that factors likely to reduce risk were full exploration and understanding of triggers and motives both by Mr Cooley and by professionals, full exploration and understanding of deviant sexual interests and presence of a robust treatment plan, and treatment needs being fully identified and presence of plans to address them and develop effective relapse prevention plans. She drew attention to the fact that unfortunately there were no suitable offending behaviour courses available at HMP Highdown at that time so Mr Cooley had not completed any treatment. He had been engaging with the mental health in-reach team on a bi-weekly basis, as well as having an assessment by adult social care, but that was not the same as treatment for his offending behaviour.
The court concluded it was obvious that there was a risk to the public of releasing him immediately and it would be of no benefit to him to do so if within a short period he was to resume his offending, which he was likely to do unless arrangements were set in place for the kind of treatment he required. The sentencing judge had no constructive plan before him even to consider some kind of treatment approach and he could not be criticised in those circumstances for imposing a significant custodial sentence to protect the public. However, the longer term protection of the public required Mr Cooley’s problems to be addressed. The recent interventions of the probation service indicated to the court that arrangements could be put in place to this end within the community, but they would require planning and proper implementation. They would require the co-operation of Mr Cooley and his family. Given his incarceration for a lengthy period of time, it was to be hoped that the incentive for such co-operation would be in place.
Although the court’s decision was not dictated by this new evidence, it had assisted in coming to the view reached. The court thought the judge should have been persuaded that the level at which Mr Cooley functioned was not that of a 19 year old. The court
The appellant in this case had ASD and a mild intellectual disability, he appealed following the obtaining of a further report that disputed his fitness to plead based these conditions. He had pleaded guilty to offences without the use of anintermediary, as he could not recall the incidents the Court of Appeal felt the outcome of any advice would have been the same had an intermediary been present. In those circumstances the pleas were not vacated although his sentence was reduced.