Metcalf v R - Criminal Appeal Against Rape and False Imprisonment Convictions

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  Metcalf v R. [2026] EWCA Crim 412 (01 April 2026)

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[2026] EWCA Crim 412 | | |
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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
| | | Neutral Citation Number: [2026] EWCA Crim 412 |
| | | Case No: 202304536 B3 |
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE CROWN COURT
Her Honour Judge Rippon

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 01/04/2026 |
B e f o r e :

LORD JUSTICE DINGEMANS
Senior President of Tribunals
LADY JUSTICE WHIPPLE
And
HH JUDGE THACKRAY KC
Recorder of Hull & The East Riding

Between:
| | LEE METCALF | Appellant |
| | - and - | |
| | REX | Respondent |

**Ms Bex KC, who did not appear below, and Miss Miller appear on behalf of the Appellant
Mr Fish appears on behalf of the Respondent

Hearing date : 16 January 2026
Further medical notes received on 2 March 2026, and further written submissions dated 13 March 2026
(paragraphs 21 and 22 of the judgment)**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.00am on 01/04/2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
11. Lord Justice Dingemans, Senior President of Tribunals:
13. Introduction and issues
14. This is an appeal, pursuant to leave of the full Court, against the appellant's conviction on 31 March 2023 in the Crown Court at Newcastle Upon Tyne (Her Honour Judge Rippon and a jury) of one count of rape (count 1) and one count of false imprisonment (count 2). The appellant, who was aged 36 years at the date of the offences and 38 years at the date of sentencing, was sentenced to an extended determinate sentence pursuant to section 279 of the Sentencing Act 2020, comprising a custodial term of 9 years and an extended licence period of 4 years. The offences were committed on the evening of 30 November and early morning of 1 December 2020. The victim of this offending, who we will refer to as C, has the benefit of lifelong anonymity pursuant to the provisions of the Sexual Offences (Amendment) Act 1992.
16. The prosecution alleged that the appellant and C, then aged 16 years, met through a mutual friend. There was some contact between them via Facebook, and they arranged to meet on 30 November 2020. They travelled in a taxi to the appellant's hotel or guest house, where they had a drink and watched Netflix. Around midnight, C told the appellant that she wanted to leave. In response, the appellant accused C of using him. He grabbed her, told her to keep her mouth shut, removed her clothing, forced her on to her front and penetrated her vagina with his penis (count 1). C was crying and told him to get off and that he was hurting her. The appellant just laughed. Afterwards, the appellant told C to leave. However, as she went to leave he told her that if she opened the door he would snap every bone in her body. He took the room keys, removed C's shoes and threw them out of the window (count 2). Later, C was able to get away when a hotel worker entered the room to attend to a faulty sink in the bathroom, which was leaking into the hotel below.
18. The appellant claimed that C had come willingly to his room, and that they had had consensual sexual relations. He had not stopped C from leaving the room at any time. He was not guilty of either offence.
20. The ground of appeal on which leave to appeal was granted relates to information which is now available about the appellant's mental state at the time of his arrest and interview and at the time of his trial. There is expert evidence from the appellant's treating clinician, Dr KM Santosh Kumar, a consultant forensic psychiatrist, which shows that the appellant suffers from what is known as paranoid schizophrenia (under the International Classification of Disease, 10 th Revision (ICD-10), and which is now referred to only as schizophrenia under ICD-11). Dr Kumar's evidence was not available at the time of the trial.
22. In reliance on Dr Kumar's report, it is submitted by Ms Bex KC, who did not appear below, and Ms Miller on behalf of the appellant that this meant that: (1) the appellant was not fit for interview so it should not have taken place, meaning that the evidence at trial would have been different; (2) if it was permissible to interview the appellant, the interview should have been excluded at trial because there was no appropriate adult at the interview; (3) the appellant should have had the benefit of an intermediary at trial; and (4) the conviction was unsafe because the whole shape of the trial should have been very different: if there had been no interview there would have been no cross examination about failure to mention matters; and if an intermediary had been present and the jury had known about the appellant's mental health diagnosis, the approach to the appellant's evidence would have been different.
24. The prosecution resist the appeal and it is submitted by Mr Fish on behalf of the prosecution that: (1) the appellant was fit to be interviewed; (2) he had legal representation at the interview which meant that an appropriate adult would have added nothing and the interview was properly admitted into evidence; (3) the appellant had no need for an intermediary during the trial; and (4) the conviction is safe because the appellant made no admissions in interview, the appellant has repeated the same (false) story about the material events at interview, at trial and following treatment after his imprisonment. Further, the case against the appellant was overwhelming because he had no explanation for how C's shoes had come to be found on a flat roof outside his bedroom window, when C had given clear evidence that the appellant had thrown her shoes out of the window to stop her from leaving.
26. We are very grateful to Ms Bex and Mr Fish for their helpful written and oral submissions. It was apparent by the conclusion of the hearing that the following matters were in issue: (1) whether Dr Kumar's report should be admitted as fresh evidence; (2) whether the appellant was fit to be interviewed; (3) if the appellant was fit to be interviewed by the police, whether an appropriate adult should have been present, so that the interview should have been excluded at the trial; (4) whether the appellant should have had the benefit of an intermediary at trial and the jury should have been told about the appellant's diagnosis; (5) whether the appellant's convictions were unsafe. It was common ground between the parties that if the appellant's convictions were set aside, it would be in the interests of justice to have a retrial.
28. Factual circumstances
29. After getting home from the hotel in a taxi arranged by the hotel worker who had helped her leave the appellant's room, C reported the incident to her mother and gave evidence by way of ABE interview with the police, conducted on 2 December 2020. C also gave oral evidence at trial. C stated that she had met the appellant when she was with her friend and had a brief interaction. The following day, the appellant added her on Facebook. C told the appellant that she had a boyfriend, and just wanted to be friends. He asked if she would like to meet up, which she initially declined, but the following day he asked again and this time she agreed. They met at some shops in the Sunderland area at around 8.15pm. When C arrived, the appellant asked if she wanted to have some drinks at his hotel, and assured her that if she wanted to go home he would order a taxi. The appellant then ordered a taxi to the hotel, stopping on the way at a shop where they bought vodka and mixers.
31. At the hotel, the appellant and victim had a drink and watched Netflix. They spoke a little about C's life, but she denied that the appellant had told her about any previous relationships. Around midnight C said she wanted to go home. C lived at home with her parents with input from a social worker, and she had a curfew of 10.30 pm and did not want to be reported missing. The appellant accused her of using him for money and a drink. C told the appellant that it wasn't like that, she just wanted to be mates, she had a boyfriend and did not want anything from him.
33. The appellant responded by saying 'well, do you know what I'm gonna do?' The appellant took his clothes off and grabbed C. She asked 'what are you doing?' and he replied 'just don't say a word, right? Just got nothing to do with you, right. Keep your mouth shut and that's it.' He removed C's clothes and turned her on to her stomach, then twisted her arms and held them behind her back. He told C to get on her knees, and moved her legs so that she had to comply to stop it from hurting. The appellant penetrated C's vagina with his penis (count 1). She told him 'I don't want it. Just get off me.' She was upset, crying and scared. C got away from the appellant and put her clothes on.
35. The appellant told C 'now you can eff off home.' She got dressed, then unlocked the door and went to open it. The appellant said 'Shut that. You dare open that door and I'll snap every bone in your body.' C was afraid, so she closed the door and locked it. The appellant told her to pass the keys to him, which she did (count 2). He then took off C's shoes and threw them out of the window. The appellant told C to sleep in the bathroom.
37. C refused to go in to the bathroom, because there was water everywhere caused by the appellant damaging the sink. The appellant kept changing from being nice, asking 'Are you okay? What's the matter?' to being angry, shouting at and threatening C. He told her that he had been out of jail for nine months. He eventually went to sleep, and C went to sleep on the single bed. A hotel worker opened the door to fix the sink, as the water was leaking into downstairs, and C told her that she needed help. She told the hotel worker 'I don't know what you would call like rape [?] but he's been saying that he'll kidnap us.' The hotel worker helped C to leave and called her a taxi.
39. When C arrived home, she told her mother what had happened. Her mother phoned the police, who took statements and took C to the Royal Sunderland Hospital where DNA samples were taken. She had no injuries.
41. There were agreed facts that the appellant had previous convictions for causing grievous bodily harm with intent in 2010 and two offences of battery in 2020. The prosecution relied on these as evidence that the appellant had the tendency to commit offences of violence against females, and that there were similarities between C's allegations and the circumstances of the appellant's previous offending, including the fact that he had thrown the shoes of a previous victim into a neighbouring garden after she had threatened to leave.
43. Other previous convictions were adduced as evidence to correct a false impression given by the appellant in evidence that he had only been to prison in relation to those two sets of offences.
45. The appellant was arrested at the hotel on 2 December 2020. The hotel room was searched when the appellant was arrested. C's shoes, which were trainers, were found outside on a flat roof below the appellant's window.
47. The appellant was taken to the police station, and solicitors were instructed to attend on his behalf. The custody records do not record any problems and it was recorded on an occasion "appears fit and well", and another occasion "appeared well". It was noted that the detained person was "paranoid schizophrenic, arrested for serious offence" (at page 4 of 10 of the custody log) noting that no risks had been identified. Welfare checks were carried out. Medical notes were recorded as being updated.
49. The appellant has, as part of this appeal, provided a waiver of privilege. It is now known, following that waiver, that the appellant was given advice by Greg Flaxen of Gerald Armstrong & Co solicitors. Mr Flaxen was described as an experienced solicitor by counsel who gave advice to the appellant before trial. The jury at the first trial at which that counsel had appeared was discharged because inadmissible hearsay from a cleaner at the hotel had been given. Counsel was not available at the rescheduled trial, and Ms Miller appeared on behalf of the appellant at the subsequent trial. The notes made at the police station by the solicitors show that initial police disclosure was given, outlining C's account and the account from the hotel worker. The appellant's instructions were taken. These show that the appellant accepted that he had had sexual intercourse with C. The records show that the client was advised that the "best course of action was to answer questions and deny the offence of rape at the earliest opportunity". It was noted that in the light of the instructions there was likely to be forensic material on the appellant's penis.
51. The appellant was interviewed, and gave a full comment interview. We have, at the request of Ms Bex, watched the whole of the interview on video. The appellant was accompanied at the interview by Mr Flaxen who took notes of the interview on a computer, and we have seen the notes made as part of the material provided by the solicitors. It was apparent that Mr Flaxen intervened on occasions to tell the appellant to wait for questions, and to stick to answering questions. Towards the end of the interview Mr Flaxen intervened to clarify questions about the appellant's screensaver which showed a photograph of a fortune teller or psychic to whom the appellant seemed to have paid money. The appellant did not mention in interview some of the facts he later relied on in his evidence. In summing up the judge referred to the fact that the appellant had not mentioned that, according to the appellant, he had asked whether C wanted to be a fuck buddy and she had replied "if you are lucky", and that C had kissed him on the lips in the taxi to the hotel.
53. At the conclusion of the interview the appellant was bailed back to his parents' home. The next part of the story comes from the appellant's medical records which were summarised by Dr Kumar in his report dated 16 May 2025. The medical records were from 2019 to 2021. Those medical records had been made available to Dr Kumar as the appellant's treating clinician but they were not produced to either the prosecution or the court in advance of this appeal. This was not a satisfactory state of affairs. This is because the medical records were close in time to the events, and: the prosecution should have had an opportunity to consider them before deciding whether to question Dr Kumar; the defence should have been able to highlight those matters that supported Dr Kumar's conclusions; and the court could be informed by the contemporaneous records.
55. Attempts were made at the hearing on 16 January 2026 to get the medical records, but Dr Kumar confirmed they were only in the possession of the relevant NHS body. After the hearing, attempts were made by the legal team on behalf of the appellant to obtain the medical records, but the records were not obtained. An application was then made on behalf of the appellant for production of those medical records pursuant to section 23(1)(a) of the Criminal Appeal Act 1968, and this court made an order dated 23 January 2026 requiring production of the medical records. The medical records were produced to the appellant's legal representatives. It appeared from those medical records that there was a progress report on Mr Metcalf produced by Dr Ashok which was dated 4 February 2021 which was held by another NHS Trust. The appellant's legal team sought a further order from the court to order production of the progress report, and the prosecution had no comments to make on the application. A further order was made on 20 February 2026 directing that the progress report by Dr Ashok be produced.
57. The medical records and progress report were then provided to the prosecution and the court on 2 March 2026. The parties were given permission, if so advised, to lodge written submissions on those medical records by Friday 13 March 2026. Additional Defence Submissions dated 13 March 2026 were lodged on behalf of the appellant referring to the fact that the medical records underpin the summary given by Dr Kumar noting in particular that although the appellant had seemed stable for several months following cessation of his medication, by September 2020 the appellant's parents were reporting intermittent signs of relapse in terms of increased anxiety and paranoia, and by December 2020 he was described as over-talkative, excitable, agitated and connecting phone numbers to his date of birth. There were references to Multi-Agency Public Protection Arrangements (MAPPA) minutes dated 18 September 2020 in which the appellant was reported to have had an argument with his father, and that his father believed that was linked to the appellant not taking his medication. The prosecution confirmed that it did not want to make any further written submissions.
59. The records show that in 2019 the appellant stopped taking his anti-psychotic medication due to reported side effects. It was in 2019 that the appellant had first been seen by Dr Kumar. On 13 August 2020, on review the appellant was reporting himself to be well. In September 2020 his parents reported intermittent signs of relapse, in terms of increased anxiety and paranoia.
61. The progress report dated 4 February 2021 refers to the fact that the appellant was alright till September ? October 2020. Following that he started showing intermittent symptoms of increased anxiety and there were periods when he was very paranoid. On 3 November 2020, however, the appellant was reviewed by a psychiatrist who felt that the appellant did not have schizophrenia, although he might have had that in the past because use of illicit substances might have led to psychosis, and a diagnosis of antisocial disorder was made. It appears that the intermittent nature of symptoms were reported as continuing, but the appellant was discharged from the Community Treatment Team on 23 November 2020 back to his GP.
63. After Christmas in December 2020 the appellant was described as being over talkative, excitable, agitated, connecting phone numbers to his date of birth, and speaking about plans to turn people into robots. Matters seem to have come to a head after the appellant sought to bar his parents from their home and played loud music for nights on end. In the final event in January 2021 the appellant was detained at Hopewood Park Hospital. It appears, from later notes, that he had commandeered his parents' home. It appears that he was diagnosed as suffering from paranoid schizophrenia aggravated by cannabis use. After treatment he was discharged in May 2021 on a Community Treatment Order.
65. Dr Kumar also summarised other medical notes from 2021 and 2022, which were originally not supplied to Dr Kumar because of issues raised by the appellant. The appellant, with the benefit of legal advice, later agreed that the medical notes should be supplied. They were later produced to Dr Kumar. The further notes did not cause Dr Kumar to change his opinion. Those notes were made available to the parties and the court.
67. It was apparent that the appellant had been under the care of Houghton Day Unit at material times. The notes from 2021 report the reason for the appellant's admission to Hopewood Park Hospital in 2021, which was his playing of loud music for four nights in a row and declaring that this was his way of talking, together with concerns about his mental state. After his discharge with a Community Treatment Order, the notes from 2022 show increasing stability in his life as he was living at home with his parents, and his son, who had not been part of his life for a period. In August 2022 there is a note of a conversation with the appellant about his mental health, about which the appellant was feeling quite good. He had been on holiday abroad, was living with his parents, and talked frankly about having been sectioned and his experience in hospital.
69. As already noted the jury at the first trial was discharged because inadmissible hearsay from a witness had been given. Counsel at that first incomplete trial, when replying after a waiver of privilege had been provided, recorded that he did not see any indication of psychiatric illness and therefore did not consider that a psychiatric report was necessary. It should be noted that Dr Kumar identified that the appellant's mental health difficulties would not have been obvious to lay persons, including the appellant's legal representatives.
71. The appellant's case at the rescheduled trial in March 2023 was, consistent with his account in interview, that C consented to sexual intercourse, and that he reasonably believed that she had consented (Count 1). He denied preventing C form leaving, by using threats, throwing her shoes out of the window or taking the room key (Count 2). No psychiatric report was obtained for that trial, and there was no application for an intermediary, indicating again that the appellant's mental health difficulties had not been apparent to his legal representatives.
73. The appellant gave evidence that he met C at a drug dealer's house and they spoke briefly. He gave C his name and she later added him on Facebook. They messaged a little over Facebook, and C told the appellant she was not looking for a boyfriend, 'if you know what I mean.' The appellant asked whether she meant that she wanted a fuck buddy, and C replied yes, if he was lucky, and it was heading that way.
75. On the evening that he met C, he intended a casual hook-up. They had arranged to go to his hotel in the Facebook messages before they met. In the taxi on the way to the hotel, there was some banter between them, and C kissed him on the lips. When they got to the hotel, they talked and smoked both cannabis and cigarettes. The appellant told C that he had been to prison for nine months for punching an ex-partner, and for nine years for breaking another partner's arm.
77. After lengthy conversation about their pasts, C came towards the appellant. They kissed, and she pushed him back on to the bed. The appellant kissed C's body, and she lay there and did not say anything to him. The appellant said that it was a sexy moment. Later in the night, C came towards the appellant with no underwear on. She got on top of him, and they engaged in consensual sexual activity. The appellant was unable to sustain an erection, and C attempted to assist him. He did penetrate C's vagina, but only slightly, then he stopped. He was embarrassed.
79. Afterwards, C was extremely concerned that the police and her social worker would be looking for her, as she should have been at home by 10.30pm. The appellant offered to phone a taxi for C, which she declined. He therefore suggested C slept in the room, which she agreed to. She did not say that she wanted to leave. He did not force her to have sex, or hold her down. He did not throw her shoes out of the window nor threaten to harm her if she left.
81. No evidence about the appellant's mental health condition was adduced at trial. The judge summed up in conventional terms and no issues were raised about the summing up. As already noted, see paragraph 19 above, the judge did give directions about the appellant's failure to mention matters in interview. The judge also reminded the jury about the appellant's explanations for that failure.
83. Matters after trial
84. On 26 July 2023, before sentencing, the appellant was assessed by Michael Blakey, who seems to have been a psychiatric nurse. The appellant was receiving at that time a fortnightly injection of 400 mg of an antipsychotic drug, and a drug to combat side effects from the antipsychotic drug. The appellant reported hearing voices, which had caused him to cut skin from his fingertips in an attempt to remove fingerprints, and he had cut his neck so that his parents could be released from a cell that the appellant believed that they had been detained in (which Dr Kumar said was one of his delusional beliefs). The report noted that the appellant was having depot injections and it was not believed that he would benefit from further psychiatric evaluation. No further psychiatric evaluation was sought. Dr Kumar had not originally been aware of this assessment, but said in evidence that it did not alter his opinion about the appellant's state at trial, because his condition might have fluctuated, and because it was apparent that the appellant was reliant on fortnightly injections of the anti-psychotic medication.
86. Following sentence, the appellant served the start of his custodial term in prison. His mental health deteriorated to the extent that by June 2024 he was transferred to Roseberry Park Hospital where he came into contact again with Dr Kumar, for the first time since 2019. Dr Kumar has confirmed in his report and his oral evidence before us, that the appellant has been diagnosed with severe paranoid schizophrenia, which has been treatment resistant, and with dissocial personality disorder. The appellant was reported to believe that he had been recruited into MI5 and that clones of people, including himself, were being made at HMP Holme House. The appellant had been treated for mental health issues before his trial and conviction in 2023, and in particular by Dr Kumar briefly when he had been imprisoned at HMP Durham for earlier offences in 2019. In fact it appears from the notes in 2021 and 2022 (and in particular a letter dated 18 February 2022 addressed to the appellant's GP) that in 2016 the appellant had been diagnosed with paranoid schizophrenia. The appellant's case is that the severity of his illness, the fact that it was treatment resistant in the sense that the appellant found it difficult to tolerate his medication and would cease taking the medication, was not fully understood at the time of his trial and conviction.
88. Dr Kumar concluded that the appellant has severe paranoid schizophrenia which has been treatment resistant because the appellant could not tolerate his medication, and he has dissocial personality disorder.
90. Dr Kumar had watched the video recording of the appellant's interview on 2 December 2020 under caution, and expressed the opinion that the appellant exhibited symptoms of mental health difficulties. In evidence Dr Kumar pointed out that these signs were subtle, the symptoms would not have been obvious to a lay person and they involved matters such as derailment of thinking and tangential thinking. Dr Kumar identified that the appellant was being overfamiliar, leaning over the interview table. He appeared to be confused about some dates, and appeared to confuse himself at the start between the victim and the appellant's previous partner. Although nobody in interview was concerned about the appellant's mental health, it is not always easy to pick up signs of schizophrenia if you do not have training as a psychiatrist, but there was no doubt in Dr Kumar's mind about the mental health issues. The discussion about the appellant's phone at the end of the interview seemed to show delusional beliefs, and there was evidence of persecutory beliefs given his dislike of the police. Dr Kumar considered that was different from someone who was just unhappy about being arrested.
92. Dr Kumar said that his understanding was that the appellant was a vulnerable adult, because his ability to participate in the interview was impaired and he was lapsing. He had derailed in his thoughts, and the solicitor had had to get him back on track. Dr Kumar did not consider him fit to be interviewed because he should have been diverted for treatment before the interview started. The appellant displayed evidence of vulnerability and an appropriate adult would have been necessary. Although the appellant had been able to share his basic understanding of what rape was and had given a full and detailed account of what happened, the interview as a whole was unreliable because of his mental state.
94. Dr Kumar had also considered a transcript of the appellant's evidence at trial which took place in March 2023, and stated that parts of the appellant's presentation were characteristic of cognitive impairment and thought disorder. Dr Kumar stated in his report and evidence that the appellant's cognitive and psychotic symptoms suggest that he may not have been able to fully comprehend the proceedings or effectively communicate with his legal representatives, but he was not able to say that it was more likely than not that the appellant was unfit to plead. An intermediary, however, could have assisted. Reading the transcript there were deficits in attention, concentration, and aspects of memory. Dr Kumar had not picked up from the written transcript any paranoid thoughts, but there should have been reasonable adjustments and an intermediary. Dr Kumar agreed that the appellant's evidence at trial was broadly the same as when interviewed, and he had clearly denied the offence, but Dr Kumar stated that there was some evidence of cognitive disturbance on the part of the appellant. There were memory issues for most of 10 pages of transcript, there was evidence of attention and concentration difficulties, and confusion about the sequence of events.
96. In June 2024 Dr Kumar had assisted the appellant, and on reviewing his medical records had identified that there were periods where the appellant was not taking his medication. Dr Kumar had attempted to unpick what was delusional in the appellant's thinking and what was true. Dr Kumar said it was apparent that the medical records which existed were either not known about or were overlooked by the appellant's legal representatives.
100. Whether Dr Kumar's report should be admitted ? issue one
101. This court has power to admit fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. The court shall have regard to the matters set out in section 23(2) namely: (a)??whether the evidence appears to the Court to be capable of belief; (b)??whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c)??whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d)??whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
103. It was common ground that the evidence of Dr Kumar was capable of belief, being based on his treatment of the appellant and consideration of medical records. The evidence of Dr Kumar might afford a ground for allowing the appeal, by showing that the appellant's conviction was unsafe because he should not have been interviewed, or should have been interviewed only with an appropriate adult present, meaning that the interview should have been excluded, and that the appellant should have had an intermediary at trial. The evidence of Dr Kumar would have been admissible, if given below, on an application to the judge to exclude the interview, and to support an application for an intermediary. In our judgment there is a reasonable explanation for the failure to adduce the evidence in those proceedings, namely that the legal representatives were not aware of the subtle signs later detected by Dr Kumar which show that there was evidence of some effect from the appellant's mental health difficulties being paranoid schizophrenia.
105. In all of these circumstances we consider that it is in the interests of justice to admit the report and evidence of Dr Kumar and the medical records relied on by Dr Kumar as fresh evidence. It is necessary now to consider the effect of that evidence on the safety of the conviction.
107. Whether the appellant was fit to be interviewed ? issue two
108. Section 76(2) of the Police and Criminal Evidence Act 1984 (PACE) provides that a confession may be excluded if, among other matters, it was or may have been obtained in consequence of anything done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made. Section 78 provides that a court may refuse to allow evidence on which the prosecution proposes to rely if it appears that having regard to the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
110. The practical application of PACE depends on Codes of Conduct issued pursuant to PACE. Code C applies to people in police detention. Paragraph 1.4 provides that "If at any time an officer has any reason to suspect that a person of any age may be vulnerable (see paragraph 1.13(d)), in the absence of clear evidence to dispel that suspicion, that person shall be treated as such for the purposes of this Code ?". Paragraph 1.13(d) provides that "'vulnerable' applies to any person who, because of a mental health condition or mental disorder (see Notes 1G and 1GB): (i) may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with: their arrest and detention; ? and the exercise of their rights and entitlements. (ii) does not appear to understand the significance of what they are told, of questions they are asked or of their replies: (iii) appears to be particularly prone to: becoming confused and unclear about their position; providing unreliable, misleading or incriminating information without knowing or wishing to do so; accepting or acting on suggestions from others without consciously knowing or wishing to do so; or readily agreeing to suggestions or proposals without any protest or question".
112. Paragraph 11.16 of Code C provides that "A vulnerable person must not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences ? in the absence of the appropriate adult" save in certain circumstances which do not apply here.
114. Annex G to Code C, on which Ms Bex relied, provides at paragraph 3(a) that "In assessing whether the detainee should be interviewed, the following must be considered: (a) how the detainee's physical or mental state might affect their ability to understand the nature and purpose of the interview, to comprehend what is being asked and to appreciate the significance of any answers given and make rational decisions about whether they want to say anything".
116. We accept Dr Kumar's evidence that the appellant suffers from paranoid schizophrenia, and has done so from at least 2019, and probably from 2016. We make this finding notwithstanding the diagnosis in 2020 that the appellant suffered from a conduct disorder only, because it is apparent that that diagnosis was made before the later relapse of the appellant, which confirms Dr Kumar's evidence that the appellant suffers from paranoid schizophrenia. We record, however, that the misdiagnosis of a conduct disorder only, showed that the appellant's condition fluctuated and, although he continued to suffer from paranoid schizophrenia he was at times able at times to exercise autonomy and operate on an apparently normal basis in society.
118. As a result of this condition the appellant suffers on occasions from delusions, in particular as to whether his parents had been detained in a cell and he has inflicted injuries on his fingers and neck which he thought might help them, and also in relation to whether he was recruited into M15, and whether clones of people were being made. The appellant has heard voices, he has had persecutory beliefs and suffers derailment of thinking and tangential thinking. The appellant's condition is treated by anti-psychotic medication, which the appellant has had difficulties tolerating. He has been treated with depot injections of anti-psychotic medication, and injections of other medication to reduce his symptoms from the anti-psychotic medication.
120. As noted above we also find that the appellant's condition has fluctuated over time. At times the appellant has required to be sectioned, so that he can be properly medicated and his condition controlled, and he has then been released under management. On other occasions the appellant has been reported to be well, even though he remained and remains a paranoid schizophrenic. Before the offences in November 2020 the appellant had appeared on one occasion to be so well recovered that a psychiatrist had doubted the diagnosis of schizophrenia and diagnosed a conduct disorder.
122. Dr Kumar gave evidence that the appellant was not fit to be interviewed, and should have been diverted to treatment before any interview took place, albeit recognising that the appellant's fitness for interview over five years ago was a matter to be determined by the Court. It is apparent that, at the time of the offence, the appellant had ceased taking his medication but was functioning as an individual adult with autonomy at the time that he met C. On arrest the appellant was able to give detailed instructions about his defence to his solicitor. This is apparent from the notes made by the solicitor of the appellant's instructions in the police station.
124. It did not appear to the police or the appellant's solicitors at the time of the interview that the appellant was not fit to be interviewed, as appears from the custody record and the notes made by the appellant's solicitor. We also note that, ever since the appellant met C, and regardless of whether the appellant has been considered well and living in society, or has required to be sectioned, he has given the same account about what he said occurred with C. There is no evidence from the appellant that his instructions about what occurred with C, either at the time of interview or at any other time, have been affected or altered by his paranoid schizophrenia.
126. We have read the transcript of the interview and seen the video of the interview, as we were requested to do by Ms Bex. As was anticipated by Ms Bex and Mr Fish, it appears to us as lay persons that the appellant is functioning as a normal adult, albeit one who is, as pointed out by Dr Kumar, overfamiliar with the police because he leans over the table, diverted into an irrelevant issue before being brought back to the question by his solicitor, and obviously resentful in part of the interview about his past prosecutions and convictions for which he blamed the police. We have all had experience of defendants who have exhibited behaviours of the type exhibited by the appellant but where no issues of mental health or fitness to be interviewed have been raised. We accept, however, that Dr Kumar, as an expert consultant forensic psychiatrist, has been able to identify these as subtle signs of paranoid schizophrenia displayed by the appellant which are not obvious to lay persons.
128. That said it is clear the appellant showed a sufficient understanding of the offence of rape and gave a clear account about the events of the evening and early morning which, on his version of the encounter with C, did not show that he had committed any offences. It is apparent that even with the subtle signs of schizophrenia identified by Dr Kumar with his expertise, the appellant understood the nature and purpose of the interview, comprehended what was being asked, appreciated the significance of his answer, and made a rational decision to give a full comment interview with the benefit of advice from his solicitor. As Mr Fish pointed out, the appellant did not make any admissions.
130. Applying Annex G to Code C, we find that the appellant's mental state did not prevent the appellant from: understanding the nature and purpose of the interview; comprehending what was being asked and the significance of his answers; and making a rational decision about what to say. In our judgment the appellant was fit to be interviewed.
132. If the appellant was fit to be interviewed, whether an appropriate adult should have been present, so that the interview should have been excluded ? issue three
133. The fact that we find that the appellant was fit to be interviewed does not answer the point about whether he was a vulnerable person. We find that, in the light of Dr Kumar's evidence, the appellant was suffering, even in subtle ways not discernible by lay persons, from paranoid schizophrenia, and was therefore a vulnerable person.
135. A vulnerable person should be interviewed in the presence of an appropriate adult. Mr Fish submits that the absence of an appropriate adult did not matter in this case, because the appellant was represented by a solicitor. In R v Martin Lewis [1996] Crim LR 260 the appellant had been interviewed on arrest in the presence of his solicitor, and was then later convicted of robbery at a trial. On appeal the appellant adduced evidence from an expert that he had an IQ of 69, which was said to be suggestive of brain damage. The appellant's case was that his interview, in which he had admitted that he had been given ?50 by the victim (albeit the appellant said this was because the victim was apologising for having messed around the appellant), should have been excluded. The Court considered the vulnerability of the appellant and the absence of an appropriate adult. The court considered that although there were differences between an appropriate adult and a solicitor it went on to say "the functions of such appropriate adult and a solicitor are very largely the same, namely to see that the accused fully understands his rights, fully understands that he does not have to say anything unless he wishes to do so, to see that the interview is conducted correctly and that the police do not abuse their position, and that the accused is able to make himself clearly understood and clearly understands what is being put to him". The court considered that the presence of the solicitor meant that the interview was properly admitted in evidence.
137. We have considered the role of Mr Flaxen, the solicitor, in this interview. It was apparent that the solicitor, who seems to have been on good terms with the appellant, gave clear legal advice before the interview, as evidenced by the notes, and intervened at all the right times to ensure that the appellant answered questions and communicated his case effectively. In the particular circumstances of this case we consider that the interview should not have been excluded at trial, even with the benefit of knowing all that we now know about the appellant as a result of Dr Kumar's evidence. This is because the appellant had the benefit of expert representation through a solicitor, who intervened appropriately throughout the interview, so that the appellant returned to the questions, and was able to ensure that the appellant's case about what had occurred with C was fully and properly recorded. The appellant provided his version of events.
139. In the event we consider that the judge was entitled to admit the interview even though the appellant did not have the benefit of an appropriate adult, and this was because the appellant had the benefit of a fully briefed solicitor who had given him proper advice.
141. We have also reflected on the fact that the judge, who did not know about the appellant's diagnosis of paranoid schizophrenia and its effect as explained by Dr Kumar, gave directions about the appellant's failure to mention two facts in interview, as appears from paragraph 19 above. The judge gave the appellant's explanations for this failure to mention facts, namely that: a police interview was stressful; and that what he had told the police in interview was effectively the same as what he was saying at trial, namely, when he had told the police that C did not want a boyfriend but was looking for a mate.
143. In our judgment once the interview was properly admitted, as it was, the judge was entitled to give a direction pursuant to section 34 of the Criminal Justice and Public Order Act 1934, with a fair direction about the matters on which the appellant relied to explain his failure to mention facts. In this respect we note that there was no evidence before us to suggest that the appellant's diagnosis of paranoid schizophrenia was an explanation for his failure to mention facts in interview. Further, as a result of the careful legal advice from his solicitor and the admission of the interview, the appellant was able to make the important point in his defence that he had given a clear and consistent account about why he was not guilty of the offences from the moment of his arrest all the way to trial, and it was only fair that the prosecution were able to refer to the failure to mention two specific matters.
145. Whether the appellant should have had the benefit of an intermediary at trial and the jury should have been told about the appellant's diagnosis ? issue four
146. We have considered the evidence of Dr Kumar carefully, and reflected on the trial and the transcript. As already noted there was no request for an intermediary, because the appellant's mental health difficulties were subtle and not appreciated by the legal team.
148. We accept that Dr Kumar has identified some memory issues at times in the transcript, and that Dr Kumar had detected evidence of attention and concentration difficulties, but it does not follow that an intermediary should have been provided for the appellant. An intermediary can serve a very useful purpose in assisting those with mental health, learning difficulties or the very young to give evidence. In R v BRM [2022] EWCA Crim 385 (BRM), for example, the 14 year old child defendant who was on trial for murder was able to give evidence with the benefit of an intermediary. In this case, however, the appellant was able to give clear evidence in accordance with his case, and he was cross-examined, properly and fairly, on his account. Some of the appellant's answers showed a considerable ability to answer difficult questions both effectively and in a clear manner. It is impossible to know with hindsight what adjustments, if any, would or might have been made by the trial judge if Dr Kumar's views had been available at trial. We are not persuaded that the trial judge would have necessarily directed an intermediary to assist the appellant. In any event, our focus must be on the trial which in fact took place and not on a different sort of trial which Ms Bex argues should or might have taken place. On the basis of all we have seen and read, and for reasons we have given, we are not persuaded that the lack of an intermediary rendered this trial unfair.
150. We turn to consider whether the fresh evidence means that the trial was unfair because the jury were not able to be told, because Dr Kumar's evidence was not then available, about the effect of paranoid schizophrenia on the appellant at the time of interview and trial. Ms Bex relied on BRM for the proposition that psychiatric evidence can be admissible on certain issues. In BRM reference was made to authorities showing that expert medical evidence had been given about diagnoses which were relevant to the issue of intent in rape. Evidence can be admitted so long as it is relevant to any issue which the jury has to decide. As appears from BRM very often psychiatric evidence about a defendant will not be relevant to an issue for the jury to decide, but other specific cases might be different, for example where there is psychiatric evidence about factors affecting whether a defendant was reckless about an issue of consent. The issue in the case was whether C had consented or whether the appellant reasonably believed that C had consented. That depended on whether the jury thought that the appellant was or might be telling the truth in his evidence. In this particular case there was nothing appearing from the transcript or summing up to show that expert evidence to the effect that the appellant suffered from paranoid schizophrenia was relevant to that issue. There is no fresh evidence from the appellant to show that his paranoid schizophrenia is relevant to any issue at the trial.
152. For these reasons we do not consider that the appellant required an intermediary to be able to participate fully at the trial. Further, on the evidence before us, we do not find that the appellant's diagnosis of paranoid schizophrenia was relevant to any issue before the jury, and so there was no basis for the jury to be told about the diagnosis.
154. Whether the appellant's convictions were unsafe ? issue five
155. In circumstances where we have decided that: the appellant was fit to be interviewed; the interview should not have been excluded; and an intermediary was not necessary at the trial; there are no grounds on which to find that the convictions were unsafe. We also record that, in any event, the appellant did not make any admissions in his interview, and the interview did allow him to say from the beginning of the proceedings that he was not guilty of rape or false imprisonment.
157. We also record that the case against the appellant was, and has remained, overwhelming. This is because C said that the appellant had, after initially saying she could leave, stopped her from leaving, and had thrown her shoes out of the window. The appellant denied doing that. C's shoes were found by the police on the flat roof outside his room, but the appellant, who did not lack the ability to give explanations for his actions, was unable to explain how they came to be there. The fact that C's shoes were on the flat roof outside his room, when taken together with the fact that the appellant had been convicted of doing the same thing to another victim (namely throwing her shoes away) to whom he had been violent, makes the case against the appellant overwhelming, and overwhelming independent of any adverse inferences arising from the failure to mention facts in the interview. In all of the circumstances we are sure that the conviction is safe.
159. Conclusion
160. For the detailed reasons set out above we dismiss the appellant's appeal against conviction.

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