Andrews, R v [2003] EWCA Crim 2750

[2003] EWCA Crim 2750Case No 2001/03309/W3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 th October 2003
Before
LORD JUSTICE KENNEDYMR JUSTICE FORBESMR JUSTICE AIKENS
Between
RCrownJane Dawn Elizabeth ANDREWSDefendant
Ms V Baird QC and Ms C Halloran (instructed by Birnberg Pierce & Partners) for appellantMr B Houlder QC and Mr R Whittam (instructed by Treasury Solicitor) for CrownHearing Hearing dates: 23 rd and 24 th September 2003
JUDGMENT
[1]On 16th May 2001 at the Central Criminal Court before the Recorder of London this appellant was convicted of murder, and was sentenced to life imprisonment. She has appealed against conviction by leave of the single judge. There were originally four grounds of appeal, the first two of which were considered by the single judge to be unarguable. Ms Baird QC, who has appeared for the appellant in the appeal although she did not appear below, did not seek to persuade us that either of the first two grounds of appeal is arguable. However she has sought leave to argue an additional ground of appeal not considered buy the single judge. We have therefore had to consider three grounds of appeal, which can be summarised thus –(1) there is fresh mainly psychiatric evidence now available in relation to the appellant’s allegations of being sexually abused as a child which is said to support the defence of diminished responsibility (original ground (c)).(2) From the same evidence a clearer picture is said to have emerged of the appellant’s mental characteristics which would, it is contended, have assisted the jury in relation to the issue of provocation (original ground (d)).(3) The judge failed properly to direct the jury as to the affect of lies when considering "diminished responsibility" (additional ground). Prior to 15th September 2000.[2]The appellant was born on 1st April 1967, and as a child she lived with her parents and her two brothers in Lincolnshire. Her father was a builder/joiner and there was no money to spare. Since the spring of 1999 the appellant has complained to a number of people that she was sexually abused as a child, once by an adult and for several years from the age of eight onwards by one of her brothers. Her parents now say that at the time something was said to them and a lock was fitted to her bedroom door, but this allegation of sex abuse has never been admitted by or proved against the alleged offender, and that fact needs to be recorded because of the publicity that this case has received.[3]The appellant says that as a teenager she became pregnant, had an abortion and then in 1988, at the age of 21, she got employment as a dresser with the Duchess of York. She remained in that employment for 9 years, and in 1990 she married an older man, Christopher Dunn Butler. That marriage lasted 6 years, and until after she was convicted the appellant seems to have made no complaint whatsoever about her husband’s treatment of her. For example, in February 2001 she told Dr Turner, a consultant psychiatrist examining her at the request of her solicitors, she and her husband had a supportive relationship, and that their separation was amicable. At about the same time she told Dr Gamble that "the relationship broke down amicably. There was never any violence or abuse in that relationship." That seems to be confirmed by her contacts with her ex-husband immediately before and after Thomas Cressman’s death, but in November 2001 she told another consultant psychiatrist, Dr Fiona Mason, that her husband became violent and that she was scared to leave him.[4]In 1996, when her marriage came to an end, she consulted her general practitioner complaining of depression, and was prescribed anti-depressants. In December 1997, after she was made redundant by the Duchess of York, she again sought medical assistance for depression, but in August 1998 she met Thomas Cressman, an apparently wealthy bachelor about 6½ years older than her. He lived in Maltings Place, London, SW6, with adjacent business premises where he sold car covers for expensive motor cars. In November 1998 she began to live with him, and after his death she told Dr Gamble that it was in November 1998 that Thomas Cressman took her to see a sex show at Olympia where he bought rubber garments for her to wear, and that thereafter they engaged at times in bondage and violent sex.[5]The relationship clearly had its ups and downs. She wanted Thomas Cressman to marry her, but he was hesitant. In 1999 she got employment with some jewellers in Chelsea and remained in that employment until he died. In the spring of 1999 she told him that she had been sexually abused as a child, and he arranged for her to see Christine Yawetz, a chartered psychologist and psychotherapist, who saw the appellant on three occasions in April and May 1999. Miss Yawetz’ notes record that the appellant, as well as complaining about her brother, said that her boyfriend was "very abusive" and that her mother had only recently been told of the allegations of child sex abuse and was "incredulous". That seems difficult to relate to what, we understand, the appellant’s mother is now prepared to say. Miss Yawetz also recorded the appellant saying that her current boyfriend had admitted telephoning prostitutes for "instant relief".[6]After the summer of 1999 the appellant told a friend that she and Thomas Cressman were no longer sleeping together, but she remained at Maltings Place, and in December 1999 she went to the Accident and Emergency Department of Charing Cross Hospital, having taken an overdose of drugs and threatening self-harm. There she repeated her allegations of child sexual abuse to a charge nurse.[7]In January 2000 the appellant found a few sexually explicit e-mails which Thomas Cressman had exchanged with a woman in America. Those e-mails caused friction then and in May 2000, and the police found more explicit e-mails after Thomas Cressman’s death, but by the summer of 2000 the relationship between the appellant and Thomas Cressman seems to have been much better. They were looking for a house in the Cotswolds, and in September 2000, according to the appellant and others, they had a very happy holiday in France and Italy, at the end of which, after staying with Thomas Cressman’s mother in the South of France, they were due to fly home on Friday 15th September 2000. 15th to 17th September 2000.[8]It seems clear that by the end of the holiday the appellant expected a proposal of marriage, and was hurt when Thomas Cressman refused to take that step. On Friday 15th September 2000 she did not join him and his mother for lunch, and made a number of telephone calls to her ex-husband and others to express her frustration. But that evening she and Thomas Cressman flew back to England on the same aircraft. As to what happened thereafter and until her arrest we will look first at what can be gleaned from the contemporaneous records or evidence of others before turning to her accounts.[9]On Saturday 16th September 2000 at 8.47 am Thomas Cressman telephoned his mother from his office. A little later the appellant made an appointment for her self and Thomas Cressman to see Michael Cameron, a counsellor dealing with relationships. Thomas Cressman later cancelled that appointment. At 11.35 am he made a 999 call to the police, inviting them to intervene. Not surprisingly they encouraged him to sort out his domestic problems without police intervention. At 11.36 am the appellant again telephoned her ex-husband, and on this occasion told him that Thomas Cressman was attacking her. At noon Thomas Cressman was seen in the street. At 1.54 pm the appellant faxed to the United States copies of those e-mails of which she was at that time aware. Apparently they were sent to the American woman’s employers. At 2.40 pm Thomas Cressman telephoned a friend, Lucinda Sharp. At 4 pm he was seen again and did not appear to the observer to be his usual self. At 4.15 pm the appellant made yet another telephone call to her ex-husband apologising for making him "a party to everything". She said she was in the car, which she certainly was at 5.05 pm because she bought petrol. At 5.15 pm the appellant made a call to Bridget Cave. She complained that her relationship had finished, and Thomas Cressman was having an affair with a girl on the internet. She was angry but did not accuse him of any physical violence. Possibly at about 6.30 pm Thomas Cressman spoke to John Goran and said that after an enjoyable holiday he and the appellant had had a bust up. She had wanted to know where the relationship was going, and he did not want to get married. He was having second thoughts. She had left in her car saying she was going to kill herself, but they had had several conversations on her mobile telephone. There are records of those conversations having taken place.[10]On Saturday evening after 6 pm, or possibly on the following day, the appellant sent the copy e-mail documents to the parents of Thomas Cressman.[11]On Sunday 17th September at 3.10 a.m. the appellant again telephoned her ex-husband. It was a lengthy call lasting 8 minutes 49 seconds. She said she was upset. She was not getting married. Mr Dunn Butler was woken up by that call, and could not remember much about it.[12]During that Saturday to Sunday night Thomas Cressman, who was very short sighted, being unable to see more than about 20 cms without assistance, was killed in his own bedroom. He was hit on the head with a cricket bat with such force that he could have been stunned and he was stabbed with a kitchen knife. Pillows were put over the head of his prostate body, and in the kitchen were left what appeared to be suicide notes from the appellant to her family. When Thomas Cressman’s employees went to his office on Monday 18th September 2000 they found that the alarm was not set and his computer was switched on. Normally he would have been meticulous in switching it off and setting the alarm.[13]On Tuesday 19th September 2000 the appellant sent a number of text messages to her ex-husband and others complaining that Thomas Cressman had not called her for four days, asserting that she had left his home at Saturday lunch time and that if anything had happened to him she was not responsible. She wanted the police to know that someone had blackmailed him in 1999.[14]On Wednesday 20th September 2000 the appellant was arrested near Liskeard having taken an overdose of drugs. She spent two nights in hospital and was then re-arrested and taken to Belgravia Police Station where on Saturday 22nd September she was interviewed. The interview account.[15]The appellant was medically examined to make sure that she was fit to be interviewed, and she was interviewed over a period of nearly four hours during the afternoon. She had two solicitors to represent her throughout, one of whom was female, and the transcript of interview is unusual in that it begins with a very long uninterrupted narrative volunteered by the appellant.[16]She said that on the Friday evening when they returned from France Thomas Cressman agreed to see a counsellor, and their relationship was restored to the extent that he made love to her in the normal way. On the following morning when he went to the office she made the appointment with the counsellor but Thomas Cressman was not pleased about that when he returned, and cancelled the appointment. He produced blades and suggested they commit suicide. He called the police. She tried to leave, and challenged him about the woman in America. She also said that she had torn up photographs taken on holiday. That afternoon she left about 4 p.m., but after speaking to him she agreed to return and did so. Things were better at first, but then there was further trouble over the photographs (which she had not in fact torn up), and over a poster. Nevertheless when he went to bed he invited her to join him, and she did so. In bed he tried to have intercourse with her, and she got up and got a cricket bat from downstairs, which she left near the bed. After she had got back into bed there was more trouble over the photographs, and he threatened to hurt her. She then got up and got a knife, thinking that if he hit her any more or did anything she could threaten him. She said in interview - "I didn’t know what else to do and I was just, I’m too ashamed to go and tell anybody what he kept doing to me."[17]She then went back to sleep but awoke to find him hitting her, so she got up and hit him with the bat. He was lashing out and grabbing her hair and trying to kick her, and she grabbed the knife. In the dark he must have come forward on to it. After that she ran out of the room. She didn’t want to hurt him. She was just trying to stop him. When she left the room there was blood on her, but ‘I didn’t think he had been hurt badly, I just thought he got a cut or something’. She tied her dressing gown cord to the door handle and left about 3 a.m. The ‘suicide notes’ had been written before she left on the Saturday, really for Thomas Cressman to see. As to the texts it was only on the Tuesday that she found out from the press that Thomas Cressman was dead. She said he had hit her before that night and was asked about that - "Q. Has he ever injured you before? A. He did hit me once and I, on the face, and I was, I had a bruise on my face. Q. Did you go to the doctors about that? A. No."[18]She said the incident was in September 1999. Between interview and trial.[19]On two occasions in October 2000, and again on 27th March 2001 the appellant was seen by Dr Gamble, a specialist Registrar in Forensic Psychiatry and Psychotherapy. In his opinion she exhibited some features of borderline personality disorder, but the pattern of disturbance was not severe enough to make that diagnosis, and her level of functioning was generally very good. There was no evidence of mental illness and her response to an extremely traumatic event was normal.[20]In December 2000 the appellant was granted bail, with a condition of residence with her parents, and in January 2001 she was referred to Mr Wilde, a clinical psychologist at Grimsby. Over the next four months she had ten sessions with him, the purpose of which was to deal with the consequences of child sex abuse, but that was overshadowed by the forthcoming trial in which the appellant was anxious that her allegations of child sexual abuse should not be ventilated.[21]In February 2001, Miss Mather of the appellant’s solicitors instructed Dr T. H. Turner, a consultant psychiatrist. Miss Mather furnished him with an extensive background statement, which drew attention to the allegations of child sex abuse and the abortion. Dr Turner saw the appellant at St Bartholomew’s Hospital on 14th February 2001. In this report prepared on 20th February 2001, he recorded that she complained that from late 1998 onwards Thomas Cressman had intermittently hit her with a long wooden clothes brush, and that on Saturday 16th September 2000, after he had telephoned the police, he had hit her and tied her up with a dressing gown cord before "rather forceful anal intercourse". Dr Turner recorded that the appellant regarded this as "a new dimension", previous anal intercourse having been consensual. So far as we can ascertain that was the first occasion on which the appellant made any allegation to anyone of anal rape, but she then made a similar allegation to Dr Gamble. Dr Turner’s diagnosis was that the appellant suffered from significant fluctuating depressive symptoms enhanced by a hormonal condition, polycystic ovary syndrome. The relationship with Thomas Cressman which she described was likely to have enhanced her sense of low self-esteem and re-awakened unpleasant memories of her childhood. Dr Turner’s view was that during the critical weekend it was likely that she was affected by her depressive symptoms and her hormonal status. As the trial judge said in his summing-up, quoting from the evidence of Dr Turner, those factors - "Would have enhanced substantially her sense of vulnerability, fear, helplessness and impulsivity. Given her initial exhaustion and her experience of physical abuse, it is highly unlikely that she would readily have been able to make lucid decisions as to her actions and clearly experienced an enhanced sense of threat to her personal safety. Whilst she was able to judge the nature and quality of her actions I consider her mental state was such as to reduce her awareness of her environment. That is to say, using a physical analogy, she might (be) considered as someone lost in a grey mist fearful of assault and prepared to defend herself against any perceived attack."[22]Two points are worth making in relation to that passage. First, as the judge pointed out, Dr Turner accepted that the appellant was able to judge the nature and quality of her actions, and, secondly, what the doctor was contemplating was not an aggressor, but someone fearful of assault. That is again apparent from another extract from Dr Turner’s evidence quoted by the judge when the doctor said that people under stress associated with clinical depression - "Undergo a change in responses. They are more panicky and less able to judge what is happening. Threats seem greater than they are and resort to measures under threat of attack."[23]Dr Turner also said that at the time of Thomas Cressman’s death the appellant may have been in what he described in a fuelled state. The appellant’s evidence at trial.[24]By the date of the trial in April/May 2001 the police had uncovered more of the e-mail correspondence with America, and that which they found referred to, amongst other things, vigorous anal intercourse. One previous girlfriend of Thomas Cressman had also said that on one occasion he had attempted anal intercourse with her, but he had desisted when asked to do so. The appellant gave evidence about his liking for anal intercourse and bondage, and his use of dirty magazines and prostitutes (to whom it was alleged that he spoke on the telephone whilst masturbating). But for all that she very much wanted to marry him. She said that on Friday 15th September 2000 when they returned to his home from France she took the mail to the bedroom and opened it with a small kitchen knife, thus explaining the second knife which the police found in the bedroom. They made love that night. Next morning, after he had telephoned the police and she had telephoned her ex-husband, Thomas Cressman tied her to the bed with the cord of her dressing gown and subjected her to anal rape. She did not tell the police about that because she was ashamed. On that Saturday afternoon she was out from about 2 p.m. to 8 p.m.. When she returned all was well at first, but then she accidentally dropped a glass, and the arguments began again. She still maintained, falsely, that she had torn up the holiday photographs, but when he invited her to join him in bed she did so, although she could have left or slept elsewhere. He then attempted anal intercourse, and that caused her to get up and fetch the cricket bat. She had told Dr Turner that she collected the bat and the knife at the same time. She did not intend to use the bat to harm Thomas Cressman in any way. She got back into bed and dozed off. Thomas Cressman then began to complain again about the photographs, and that was when, she said in evidence, she went and fetched the knife. Once again she went to sleep and on this occasion she awoke because he hit her, still complaining about what had happened to the photographs. He said repeatedly ‘I’m going to fucking kill you’. That was not something she had said to the police. She hit him with the bat. He fell back, but was not stunned. He was on the bed leaning across holding her hair and trying to hit her. She was curled up on the floor in the corner. She picked up the knife because she didn’t want him to come anywhere near her, and the next thing she knew he was on top of her. She did not stab him or intend the knife to go into him, but it must have done so. She crawled out, grabbed her dressing gown and left the room. She could offer no explanation for the extensive blood staining found on the bed and on the far side of it from where she alleged that Thomas Cressman was impaled and died. At the end of her cross-examination she emphatically distanced herself from the defence of provocation. "Q. You are not saying that you were so provoked by things that he had done or things that he had said to you that you stabbed him deliberately, you are not saying that are you? A. Of course not. I didn’t just snap. Q. There was not a loss of self-control caused on the moment because of what he had done and what he had said to you? A. No, not at all."[25]She did not explain the pillows found over the head of the deceased. She said, towards the end of her evidence in chief, that when she left the room and heard nothing from him and saw the extent of the blood staining on her she realised he was seriously injured. By the time that she was leaving the house she realised that he must be dead. She did not seek help or even make an anonymous 999 call because she panicked. She was in ‘a hell of a state’. Having left in her car she telephoned her ex-husband, but clearly in that telephone call at 3.10 a.m. he was not told what had just occurred. Two days later when she sent misleading text messages she did so because of panic. Cross-examination had to be broken off because when asked if the child sex abuse which she alleged had involved penetration she became distressed. It quickly became apparent that the underlying cause of distress was an infection, and her evidence was resumed when that condition cleared up. She said that prior to her visit to Charing Cross Hospital in December 1999 Thomas Cressman had pushed her down the stairs, and that was why she went to the hospital, even though she had not mentioned that event to any doctor or police officer. Indeed whereas in interview she had identified only one act of violence in evidence she said that Thomas Cressman was prone to black moods and was frequently violent. As to the tablets which she took before her arrest she said ‘I didn’t take the tablets to end my life’. Issues at trial.[26]There were five issues for the trial jury to consider, namely - 1. Accident. 2. Self-defence. 3. Intent. 4. Provocation, properly left to the jury by the judge although not relied on by the defence. 5. Diminished responsibility, in relation to which the principle evidence came from Dr Turner and Dr Gamble.[27]The jury resolved all of those issues in favour of the Crown. As Mr Houlder QC for the respondent points out, they could not have done so if they accepted that the account given to them by the appellant might be right. The prosecution case, which the jury seems to have accepted, was succinctly summarised in his last question in cross-examination, namely that the appellant entered the bedroom whilst Thomas Cressman was asleep, struck him with the bat, and then plunged a knife into him because he had rejected her and she wanted vengeance. After the Trial.[28]In August 2001 the appellant was referred to Dr Laker, a consultant psychiatrist who was visiting psychiatrist to the prison where she was detained. He found a moderately severe depressive illness, treated her for it, and reviewed her at monthly intervals. In August 2002 he prepared a report to which we will return in a moment.[29]On October 2001 the appellant began to receive psychotherapy from Isabel Rogers, a psychotherapist. She has provided 16 hours of therapy to date.[30]On 27th November 2001 the appellant was seen for 6½ hours by Dr Fiona Mason, a consultant psychiatrist who Ms Baird described, no doubt rightly, as a notable expert in post-traumatic symptoms in women. Dr Mason took a full history which included not only child sex abuse but also, for example, new allegations against her ex-husband of violence towards the appellant, and assertions that she engaged in alcohol abuse. As to the events of the night when Tomas Cressman died, the appellant was less clear than she had been. She did not recall bringing the cricket bat to the bedroom, nor did she recall getting the knife, but she did recall what happened when she was woken for the last time. "Ms Andrews told me that she was awoken by Mr Cressman hitting her shouting ‘I’m fucking going to kill you, you’ve gone too far this time.’ Ms Andrews said that Mr Cressman had hold of her hair and she was begging ‘please don’t Tommy’. Ms Andrews said that she remembered standing at the foot of the bed, but told me that her next memory was of ‘freaking’ when ‘I realised I had hit him’. She told me that she couldn’t breathe and that Mr Cressman was screaming at her that he was going to kill her. She remembered that he was in the centre of the bed and she began cowering on the floor telling him not to hurt her. Ms Andrews said she had her head in her arms and wondered if she had the knife in her hand however, she could not recall this accurately. She remembered her hair being pulled and Mr Cressman who she believed was kneeling on the bed bearing down on top of her. Ms Andrews recalled that she couldn’t move, felt cold, was shivering, couldn’t catch her breath and was naked. She also remembered grabbing at Mr Cressman’s leg. Ms Andrews then told me that the next thing she remembered was being on the other side of the bedroom door, hanging onto the door handle."[31]Dr Mason, who recognised that the appellant had not been consistent, and who offered several possible explanations for the inconsistencies, concluded that at the material time the appellant had a personality disorder. She said - "In my opinion, at the time of the index offence, Ms Andrews was suffering from both a depressive illness and post traumatic symptomatology super-imposed on her already abnormal personality structure."[32]The doctor formed the opinion ‘that her perception, understanding, judgment and will were affected at the time of the killing to the extent that it is likely that her mental responsibility for the killing was significantly affected.’[33]As to provocation Dr Mason said - "I have formed the opinion that she was distressed, frightened, anxious and angry prior to the offence. If her account of Mr Cressman’s actions is accurate, then his actions would have been terrifying and provocative. It is worth noting that, as part of Ms Andrews complex phsychopathology, she was at times impulsive, suffered marked mood instability and anxiety, had significant abandonment fears and would franticly try to avoid abandonment. At times her efforts to avoid abandonment would result in impulsive actions. Thus the proposed abnormality of mind as outlined above, is also relevant when considering provocation."[34]Dr Laker, in his report, concluded that the appellant had and has an emotionally unstable (borderline) personality disorder which would amount to an abnormality of mind for the purposes of section 2 of the Homicide Act 1957. This is the diagnosis which Dr Gamble considered and rejected, and which he still rejects. Dr Laker sets out his reasons for his conclusions. Inevitably those reasons contain a lot of uncorroborated material from the appellant, including her account of what happened on Saturday 16th September 2000 when she and Thomas Cressman were alone. Dealing with the issue of provocation, Dr Laker says - "Of particular relevance is the acute provocation on the day of the offence itself, comprising the anal rape and, later that night, the repeated assaults on her by the deceased when they were in bed together. Jane Andrew’s decision to protect herself with a cricket bat and a knife (rather than to leave the house and escape her tormentor) presumably arose from her desperation not be abandoned in this relationship."[35]The allegations of anal rape and whether or not the appellant was protecting herself when she took up a bat and then a knife were, of course, critical issues at the trial, and the fresh medical evidence does not cast any further light upon them. This appeal: First two grounds of appeal.[36]We return now to the first two grounds of appeal which we have had to consider. For convenience we set out those grounds almost in full. "(c) It has emerged since the trial that the issue of child sexual abuse .. is far more significant than it first appeared. We submit that had this been known at trial the defence of diminished responsibility, which was raised at trial, would have been far more likely to succeed. We therefore submit that the information now available casts doubt upon the safety of the conviction. We also submit that it is evidence capable of belief and we provide a reasonable explanation for the failure to adduce it at trial. We submit that the new material provides a basis for the view .. that, at the time of the killing, the applicant’s mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957. It is therefore proposed to apply for leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, consistent with the reports of Dr Fiona Mason’s statement and her report annexed thereto. .. (d) Finally, the mental characteristics as defined by Dr Mason in her report …. had not been attributed to the applicant at the time of her trial and thus were never canvassed before the jury. We submit that many of those characteristics which form part of the applicant’s complex psychopathology, including her impulsivity and fear of abandonment, anxiety, mood instability and poor self-image in particular, would have given rise to abnormally heightened responses in the face of the particular provocation, especially when the conduct of the deceased was likely to have caused a flash back of the abuse situation. Therefore the jury could have legitimately given weight to these characteristics in considering provocation and it is unjust that the option was not available to them."[37]In support of those grounds of appeal Ms Baird submitted that we should receive in particular the evidence of Dr Mason and Dr Laker and a statement from Isabel Rogers, but also further evidence from Dr Turner, and evidence from the appellant, her mother and father, and Catherine Yawetz (who did not give evidence at the trial).[38]The power of this court to receive evidence is set out in section 23 of the 1968 Act which, so far as material, reads - "(1) For the purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice - (c) Receive any evidence which was not adduced in the proceedings from which the appeal lies; (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -(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."[39]Ms Baird submits that the evidence now sought to be adduced, in particular as to the extensiveness and the relevance of the child sexual abuse, was not available at the time of trial because it had yet to be extracted from the appellant by skilful and sympathetic professionals, and that in any event we should receive the evidence because it is necessary or expedient in the interests of justice to do so. Had it been deployed at the trial the defence of diminished responsibility would have been more likely to succeed. It also has relevance in relation to provocation which can only be fully appreciated in the light of the fresh evidence.[40]Mr Houlder submitted that we should not receive any fresh evidence because although the expertise of Dr Laker and Dr Mason is not in question, the appellant did have the benefit of expert psychiatric evidence at the time of trial and the substance of the material upon which Dr Laker and Dr Mason now rely was known then, including the allegations of child sexual abuse, although they were not so well developed as they have become since conviction nor were they considered to be of critical importance. Furthermore, once it is recognised that the appellant’s account of her relationship with Thomas Cressman, and in particular the last hours of that relationship, was, for good and obvious reasons, rejected by the jury, there is no conduct to which the defence of diminished responsibility could properly have been applied. It was and is not sufficient for the appellant to establish an abnormality of the mind of the relevant type. As the judge explained to the jury there was a following crucial question - "Was the abnormality such as substantially impaired her mental responsibility for her acts in doing the deed? It is a question of degree. Was the impairment of her mental responsibility slight or trivial, or was it substantial? That is a question for you alone to decide having regard to all the facts that you find established by the evidence."[41]In relation to that jury question the balance of the evidence remains undisturbed because so much depended and continues to depend upon the evaluation of the appellant’s evidence.[42]In our judgment Mr Houlder is right for the reasons which he gave, and that is why we refused to receive the fresh evidence. In this judgment we have not rehearsed all of the discrepancies in the accounts given by the appellant upon which the Crown relied, but we have referred to many of them. Patently, as it seems to us, the jury must have come to the conclusion that the appellant was wholly unreliable. If they had heard from Dr Laker and Dr Mason as well as from Dr Turner and Dr Gamble they might more easily have concluded that at the time of the offence she suffered from an abnormality of mind, but, in the teeth of her own evidence, they could hardly have found that she was provoked. As the judge made clear, the possibility of provocation only arose if, as she contended, she was woken up on the final occasion and assaulted against the background of having been anally raped earlier in the day and approached for anal intercourse earlier in the night. As to diminished responsibility it cannot seriously be contended that if with a cricket bat and a knife she attacked a short sighted prostrate sleeping man her abnormality of mind was such as substantially to impair her mental responsibility for her acts. No doctor goes that far, and in any event, as the judge made clear to the jury, the question was one for them.[43]In Ahluwalia [1993] 96 Cr App R 133 this court at 142 emphasised the need for any available relevant evidence to be advanced at trial. The same applies to expert evidence sought to be relied upon in support of defences which are advanced at trial. In that case Lord Taylor CJ said that this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism. So we do, at the same time acknowledging the expertise of those professionals who have only come into contact with the appellant since her conviction. We do not exclude the possibility that a professional who comes late into the field in support of a defence which was advanced at trial may have something to say which requires this court to exercise its powers under section 23, but for the reasons we have given this is not such a case. Here, as in almost every case, there was room for only one trial, at which the appellant had a full and proper opportunity to put forward her defence. Accordingly we found no substance in either of the first two grounds of appeal. The additional ground of appeal.[44]We turn finally to consider the appellant’s application for leave to appeal against her conviction upon a further ground, additional to those upon which leave to appeal has already been granted, whereby criticism is made of the judge’s direction to the jury as to the effect of the various lies that were told by the appellant.[45]The essential thrust of this proposed additional ground is that the judge’s direction with regard to the appellant’s lies was inadequate in that it failed to incorporate an appropriately worded direction as to the effect of those lies in relation to the issue of diminished responsibility. Ms Baird made it clear that, in all other respects, the judge’s direction with regard to the appellant’s lies was unimpeachable. She was plainly right to do so because, in our view, the direction given to the jury by the judge on this aspect of the matter was carefully and clearly expressed. What he said was this (see transcript of summing-up, pages 39D to 41D):
"The next matter of law about which I shall direct you is the question of lies told by the defendant and your approach to them. It is particularly with regard to the lies she admits she told to the police about thinking that Tom Cressman had only suffered minor injuries when she left the house. She told that lie both to the police and indeed to Dr. Turner. She told Dr. Turner, for example, that she saw some blood on herself and thought that she herself was hurt and that when she left the house she thought that Mr Cressman was after her. In addition, she told a number of lies in the days following her flight. In particular she sought to cast suspicion elsewhere by saying that he had been blackmailed. She admits that she told those lies. The reason she told those lies, say the defence, is that she was unable to bring herself to face the fact that she had, although in self-defence and accident killed the man she loved. …… The reason she told those lies say the defence is because she was unable to bring herself to face the fact that he had died in the circumstances she there described and after all it was the man she loved. When you are considering the question of any lies that you find the defendant told, you should not rely on any of them as supporting the prosecution’s case unless you are sure of the following: First, that the lie you are considering was a deliberate lie; secondly, it was not told for an innocent reason, for example, to bolster up a genuine defence as here, self-defence and accident. The reason is that people often do tell lies for innocent reasons. The fact that a person has told a lie is not indicative of guilt necessarily, because it might be a lie told, or lies told for an innocent reason or reasons. What you have to consider in this case is what the defendant herself said, that she did not think she would be believed. It is only if you are sure that the lie you are considering was told from a consciousness of guilt and a fear of the truth that you can use it as supporting the prosecution’s case. I emphasise that even then it can only support the prosecution’s case, but is not of itself and can never be of itself proof of guilt. There is one further matter on the question of lies. If you are considering the issue of provocation. Lies are not necessarily inconsistent with provocation. In this case the fact that she told lies about his being only slightly injured and the lie about the blackmail are not logically inconsistent with provocation and should not in your consideration be considered as being inconsistent with provocation. …"
[46]From the terms of the final paragraph of that quotation from his summing-up, it is clear that the judge had very much in mind the decision of this Court in R v. Richens [1994] 98 Cr.App.R. 43, a case in which it was held (inter alia) that the judge’s direction as to the effect of the defendant’s lies had been inadequate in relation to the issue of provocation. When giving the judgement of the Court, Lord Taylor LCJ said this (see pages 50 to 51):
"(The judge’s) approach appears to us to overlook the vital and incontestable fact that a man who has killed by reason of loss of self-control, and therefore faces arrest, trial and possible lengthy imprisonment, may have almost as strong reasons for attempting to conceal his deed and lie about his involvement as a man who has killed deliberately. … ..…The point is that the jury should be alerted to the fact that, before they can treat lies as tending towards the proof of guilt of the offence charged, they must be sure that there is not some possible explanation for the lies which destroys their potentially probative effect. Applying that concept to the present case, could the jury be sure that attempts to conceal the killing and lies were inconsistent with the appellant’s case that he had killed as a result of provocation, and pointed to murder. … In principle, however, the need for a warning along the lines indicated is the same in all cases where the jury are invited to regard, or there is a danger that they may regard lies told by the defendant, or evasive or discreditable conduct by him, as probative of his guilt of the offence in question. …"
[47]Ms Baird acknowledged that medical evidence is required to establish diminished responsibility and that, in the ordinary way, diminished responsibility is not an issue to which the credibility of the defendant is in any way relevant: see R v. Bathurst [1968] 52 Cr.App.R. 251 and R v. Byrne [1960] 44 Cr.App.R.246. Like Mr Houlder, she was not aware of any authority to the effect that a direction as to the effect of a defendant’s lies is required in relation to an issue of diminished responsibility. However, Ms Baird submitted that, applying the widely expressed principle as stated in Richens(see above), the jury should have been directed in suitable terms that any lies told by the appellant during her various psychiatric examinations were not logically inconsistent with her defence of diminished responsibility. It was Ms Baird’s submission that, absent such a direction in this case, the appellant was not properly protected from the adverse impact of her lies on the jury when they came to consider her defence of diminished responsibility, thereby rendering her conviction for murder unsafe.[48]We are satisfied that there is no substance in this additional ground of appeal. Whilst we would not go so far as to say that a direction with regard to the effect of a defendant’s lies will never be required in relation to an issue of diminished responsibility, we find it extremely difficult to envisage the type of circumstance in which such a direction would be necessary in practice. We accept Mr Houlder’s submission that the judge gave a direction on the effect of the appellant’s lies that was perfectly clear and more than adequate to meet the particular circumstances of this case. Any attempt to extend that direction to embrace the issue of diminished responsibility would have been a wholly unnecessary and confusing complication for the jury to consider. Having regard to the terms of the judge’s direction, we are entirely satisfied that there was never any danger of the jury assuming, once they had excluded any innocent explanation for the appellant’s lies, that she was guilty of murder and that they could therefore treat the medical evidence that they had heard in relation to her defence of diminished responsibility as, in effect, wholly irrelevant. In our judgment, the jury would have been fully aware from the judge’s careful and admirably clear summing-up that the issue of diminished responsibility depended on the medical evidence that they had heard and was a discrete issue in respect of which the appellant’s credibility was not directly relevant.[49]For the foregoing briefly stated reasons, it is our firm opinion that this additional ground of appeal is unarguable. Accordingly, the appellant’s application for leave to appeal against her conviction on that ground was refused.

Cited in 2 later judgments