Shickle,R. v [2005] EWCA Crim 1881

Case No 2004/02464/C3[2005] EWCA Crim 1881
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON REFERRAL BY THE CRIMINAL CASES REVIEW COMMISSION
ON APPEAL FROM THE CROWN COURT AT OXFORD
(Mr Justice Latham)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 14 July 2005
Before
LORD JUSTICE SCOTT BAKERMRS JUSTICE GLOSTER DBEHIS HONOUR JUDGE METTYEAR
Between
THE QUEENAppellantSUSAN SHICKLERespondent
Mr Tim Owen QC (instructed by Birnberg Pierce) for AppellantMr Neil Moore (instructed by The Crown Prosecution Service) for Respondent
Judgment

Background

[1]Susan Shickle appeals against her conviction for the murder of Norman Harvey. The case has been referred to us by the Criminal Cases Review Commission. We are invited to consider fresh evidence, the purpose of which is to show that the appellant had a viable defence of diminished responsibility that was never put before the jury and that therefore the conviction for murder is unsafe.[2]The killing took place over nine years ago, on 2 May 1996, and the appellant was convicted in the Crown Court at Oxford on 25 February 1997 before Latham J, as he then was, and a jury. The appellant’s appeal to the Court of Appeal was dismissed on 15 July 1997.[3]The victim was a sixty eight year old diabetic with whom the appellant had a long standing and complex relationship. He had first come into her life when she was 9 years old. She used his flat as a haven from time to time when she was without accommodation. On a large number of occasions she had provided help for him when he ran into difficulties with his diabetes, which he was not very good at managing. Her history is, in summary, that she was born in September 1960 and was therefore aged 35 at the time of the killing. She had a boy of 13, Andrew, who was a key prosecution witness. He lived with his step father, Steven Shickle, in Banbury. The appellant had two other children, both girls, by Steven Shickle and they too lived with him. He and the appellant parted in August 1994 when he left, taking the children with him. There was subsequently a divorce. At the end of 1995 the appellant began to live with a man called Mark Nash in a flat owned by a neighbour of Mr Harvey’s called Wickham. On 22 April 1996 there was a quarrel between the appellant and Wickham and she and Nash were evicted. They moved into Mr Harvey’s flat.[4]The prosecution relied upon the evidence of Andrew Shickle and William Tibbert. They had attended Mr Harvey’s address in order to visit the appellant, arriving about 6pm. Shortly after Andrew and William arrived, Mr Harvey returned home. On his return the appellant asked Mr Harvey if he would go to the shops to buy some bread and cider for her. Although Mr Harvey agreed to go, he informed her that the shop would not sell him alcohol. The appellant told him to stop being so silly, at which Mr Harvey lent over to her and asked her where her mother was. This upset the appellant as Mr Harvey knew that her mother was dead. She became abusive towards Mr Harvey, pushed him into the bedroom and punched him.[5]When the appellant grabbed a knife Andrew intervened in an attempt to stop her. At this the appellant turned to him and said:
“just think of what he did to your little sister” (allegations had been made in 1992 that Mr Harvey had indecently assaulted Andrew’s sister, but a prosecution was not ever brought). The appellant discarded the knife and proceeded to search for a syringe. On finding one she filled it full of insulin and stabbed it into Mr Harvey’s leg. The appellant repeated this process with two further syringes. Andrew stated that during this time the appellant was saying words such as, “I am going to kill him.”
The prosecution called expert evidence that the cause of death was an overdose of insulin.[6]Andrew’s friends, Danny Cowley and Cristian Fannon, testified that when they arrived at the flat Andrew came outside and told them something along the lines of, “My mum’s gone mad, she is going to kill him. She’s injecting him with insulin”. They then entered the flat and witnessed the appellant administer the second and third injections. Andrew and his friends left sometime after the third injection and went to Nicholas Lambrianou’s house in order to find the appellant’s boyfriend, Mark Nash. On finding Mr Nash, Andrew informed him, in the presence of Mr Lambrianou, of what had occurred. After the attack Mr Harvey went to bed. The appellant discovered Mr Harvey’s body in bed the following morning.[7]The death was not initially treated as suspicious and the police obtained a witness statement from the appellant. She stated that Andrew had arrived about 7pm and stayed for about an hour, but Mr Harvey had gone to bed prior to Andrew’s visit. About 9pm her boyfriend, Mark Nash, arrived at the flat and they both left at 10.30pm in order to purchase some food, returning shortly afterwards. They went to bed about midnight, and nothing untoward happened that evening. She awoke about 8.15am and discovered Mr Harvey’s body.[8]When the appellant was arrested the police decided she was not fit to be interviewed and, owing to her condition, she was placed in a cell with a police officer. Whilst in the cell the appellant started to talk about what had occurred the previous evening. In essence she said it was Andrew who had injected Mr Harvey with the insulin. When the appellant was eventually interviewed by the police she answered, in effect, no comment.[9]The defence case was, and the appellant gave evidence to this effect at the trial, that Mr Harvey had previously abused her daughter Emma and had also raped the appellant. She asserted that she nevertheless had no animosity towards him. However, she thought that Andrew did not like him. Her evidence about the period leading up to Mr Harvey’s death was that her recollection was quite clear until 5.45pm when she took some ‘speed’, alcohol and other drugs. After this she could not remember much, other than that there had been an argument about getting some food. She did not remember attacking Mr Harvey, but stated that, if she had injected him, she would have remembered it. She recollected Andrew leaving the flat and Mark arriving later on in the evening and their going to the shops to get some food. Her next memory was finding Mr Harvey the following morning.[10]The defence also adduced expert evidence regarding the cause of death, challenging the prosecution case. In summary, the contention was that, in itself, insulin is not a toxic substance but if administered in excess it leads to hypoglycaemia. If untreated, this in turn results in coma rather than death. Mr Harvey’s general practitioner testified that owing to Mr Harvey’s frail state death could have occurred at any time, most likely from heart failure.[11]The main thrust of the appeal that was subsequently heard by the Court of Appeal was that the judge had erred in ruling that the evidence of Messers Lambrianou, Fannon and Cowley as to the comments of Andrew was properly treated as part of the res gestae in the case. The Court of Appeal agreed with the judge that this evidence was admissible following R v Andrews [1987] AC 281. The court thought there had been a misdirection on intent but concluded that it had no bearing whatsoever on the safety of the conviction. Why was diminished responsibility not run at the trial?[12]We have a note from leading and junior counsel, Mr Michael Austin-Smith Q.C and Mr Simon Davis, who represented the appellant at the trial. The appellant’s instructions were that at the material time she was under the influence of drink and/or drugs and had no memory of events. She had neither wished to harm the deceased nor had any memory of doing so. The account given by Andrew and his friends must have been fabricated, alternatively Andrew had totally misunderstood the situation. She could not recall having administered any injection, although it was possible she may have administered one if she was under the impression Mr Harvey was in a state of confusion preceding an attack.[13]The defence had the benefit of assistance from a consultant toxicologist and a consultant pathologist. Their advice was that there were substantial difficulties in establishing the cause of death in cases involving an allegation of murder by injection of insulin, because insulin itself is not toxic and usually, if administered in overdose, results in hypoglycaemia, which, if not treated promptly, leads to irreversible coma rather than death. Death, when it does follow, is thought to be caused by a reduction in potassium levels leading to heart failure or to brain damage caused by glycogen deficiency. There was also the general practitioner’s evidence (called by the prosecution) that the deceased’s frail state was such that death could have occurred at any time from natural causes. It was also going to be very difficult for the prosecution to establish that the level of insulin in the deceased’s body at the time of death exceeded the therapeutic dose. This was because the rapid degradation and dispersal of insulin and its breakdown products made accurate calculations of post-mortem levels, from post-mortem findings, notoriously difficult to achieve.[14]The scientific and pathological evidence available to the defence suggested that it was possible there had not been an insulin overdose and that, if there had been, it was not the cause of death. Also, there may only have been one injection site rather than the several alleged by the prosecution.[15]The defence had two psychiatric reports. Neither suggested an abnormality of mind so as substantially to diminish the appellant’s responsibility. One, from Dr Bullard, dated 20 June 1996 (prepared for a bail application), of which more later, said there was no evidence the appellant was suffering from mental illness but she did have a long standing personality disorder associated with a chaotic lifestyle. She had a long history of alcohol and substance abuse. The other was from a prison psychiatrist who rejected any suggestion of mental illness.[16]The defence team was faced with a defendant whose case was that she had not administered the fatal dose of insulin. There was a real issue about the cause of death and, assuming the prosecution was able to prove homicide, whether it was the appellant who injected the fatal dose or doses into Mr Harvey’s body. An accidental overdose by the defendant was another possibility, bearing in mind she accepted she might have injected him once if he appeared to need insulin.[17]None of these defences lay easily with the defence of diminished responsibility which predicates an acceptance of responsibility for causing death along with the appropriate intent, coupled with the burden of proving that the responsibility was substantially diminished by abnormality of mind.[18]Further, the psychiatric reports to which the defence had access said nothing to suggest there was any realistic basis for diminished responsibility. There was no indication that the appellant’s heavy drinking had led to brain damage or that alcoholism had led to abnormality of mind. Counsel described her as lucid, presentable and, at least to the layman, devoid of any manifestation of abnormality of mind. There was no basis for thinking that the personality disorder identified by Dr Bullard, in her psychiatric report prepared for the bail application, could form the basis for a compelling case of diminished responsibility. The evidence to support diminished responsibility was described by counsel as at best weak and probably, more realistically, non- existent. We shall refer to all the psychiatric evidence in more detail later.[19]Counsel’s note concludes as follows:
“It was our judgment that we could not risk running a weak diminished responsibility argument as yet another further alternative. Had there been any evidence to support diminished responsibility we might have been forced to take a different view but, as it was, neither our psychiatrist nor the psychiatrist instructed by the prison service found support for such a conclusion. Thus, absent any medical evidence to suggest that the defendant’s responsibility was diminished at the material time, we felt that the only viable proposition was to run the case as we did.”
We find this conclusion entirely understandable. Indeed it is difficult to see how responsible counsel could have reached any different conclusion. Nevertheless, the problem remains of how to deal with the situation in which there would have been available at the trial a viable defence of diminished responsibility if the appropriate psychiatrists had been approached.[20]The fundamental question for the court is whether the conviction for murder is safe. The appellant seeks the leave of the court to call fresh evidence to show that the conviction is not safe. That evidence comes from two psychiatrists, Dr Bullard and Dr Mendelson. Its purpose is to show that the appellant did have a viable defence of diminished responsibility under section 2 of the Homicide Act 1957. The prosecution have evidence from a third psychiatrist, Dr Joseph, to contrary effect. Each of the three is a psychiatrist of experience and eminence. The prosecution submit that, if the court considers fresh evidence from Dr Bullard and Dr Mendelson, it should also consider the fresh evidence of Dr Joseph.[21]Section 23(1) of the Criminal Act 1968 gives the court a discretion, if it thinks it necessary or expedient in the interests of justice, to receive any evidence not adduced at the trial. Section 23(2) requires the court in considering whether to hear any such evidence to 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 any issue which is the subject of the appeal; d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.[22]In the present case the first and third criteria are plainly met. The submissions on the appeal have focused on the second and fourth criteria, i.e. whether the fresh evidence might afford a ground for allowing the appeal and whether there is a reasonable explanation for not having adduced it at the trial.[23]Having read the reports of the three psychiatrists we decided to hear their evidence de bene esse before making a formal decision whether to receive their evidence under Section 23. Each of the three psychiatrists has therefore given evidence before us and been cross-examined. Dr Bullard[24]The court heard oral evidence from Dr Henrietta Bullard, who also produced three reports for the purposes of the appeal dated 24 February 2004, 18 March 2004 and 12 May 2005. Additionally the court had her report dated 20 June 1996 prepared for the bail application before the trial.[25]In her report of June 1996 Dr Bullard recorded that the appellant’s medical notes were not yet available but that she had had treatment for agoraphobia at the Elms Clinic and treatment at the Ley Clinic. She was not suffering from mental illness but did have a long standing personality disorder associated with a chaotic lifestyle, with difficulties in relationships and problems resulting from her addiction to alcohol and drugs. She was about three months pregnant at the time of that report. Dr Bullard reported no abnormality in her cognitive functioning. There is no suggestion in this report of the possibility of a defence of diminished responsibility. Dr Bullard’s response, when asked about this, was that she was only instructed on a bail application and did not have access to the appellant’s notes or to the depositions. It would not have been possible, she said, to make any comment about diminished responsibility at that stage, even had she been asked to do so. In our view, such contemporaneous medical evidence as there is is of some importance for two reasons: first the court has to consider the appellant’s mental state at the time of the killing and second it is relevant to look at what medical evidence was or might have been available to the defence team. Other contemporaneous medical evidence includes a report from Dr Nkwam, a prison medical officer, dated 11 November 1996 prepared for the Oxfordshire Local Authority in relation to the then unborn child. That report was based on several interviews with the appellant and ante-natal consultations from 6 May 1996, the date on which the appellant was remanded in custody. Dr Nkwam described her as a “young physically health lady with no overt signs of mental illness.” There is also a report from Dr Michael Orr, a consultant psychiatrist prepared 10 years earlier in September 1986. He had access to the appellant’s psychiatric case notes from 1976 and the report was based on an interview at the Elms Clinic on 16 September 1986. Whilst the report was made in relation to custody proceedings, again it is relevant to note that there is no reference to mental illness or personality disorder.[26]Also, there is a report from Dr Browne, visiting consultant psychiatrist to HM Prison Holloway dated 25 February 1997. This report refers to a report by Dr Franciosi, dated 23 October 1996, which we have not seen, and also to the report by Dr Nkwam. Dr Browne found no evidence of illness in the clinical or formal sense. The appellant was normal in manner and behaviour and able to give a good account of herself. She was not mentally ill. Her past history would not support a diagnosis of personality disorder/ psychopathy. However, Dr Browne concluded with the words:
“I understand that she is denying her guilt for the offence so it is not possible to put forward any possible psychological/psychiatric explanation for it.”
[27]When Dr Bullard examined the appellant in February 2004 the appellant said she could not remember the killing and still had only a vague recollection of the day of the offence. Dr Bullard concluded that the appellant suffered from an emotionally unstable personality disorder which she described as “severe”. She had characteristics of both the impulsive and borderline types of personality disorder. She said emotionally unstable personality disorders are serious mental disorders and the appellant had had disabling symptoms since the age of thirteen. This was, in her opinion, an abnormality of mind due to inherent causes which substantially impaired her mental responsibility for her acts in doing the killing.[28]In that report Dr Bullard criticised the reports of Dr Browne and Dr Nkwam for not mentioning diminished responsibility and questioned what their instructions were. She concluded by saying it was difficult to persuade juries that personality disorders are serious mental disorders but in this case there was well documented psychiatric evidence and medical history to provide evidence for this defence.[29]In her second report of 18 March 2004 Dr Bullard described the killing as a domestic one and said “diminished responsibility must be the most plausible defence for a woman with her psychiatric and social background.” She said it was unfortunate that the defence had failed to uncover the extensive medical and psychiatric records from hospitals attended by the appellant since the age of fourteen. Had they done so, however, they would nowhere have found any diagnosis that the appellant was suffering from a personality disorder.[30]Dr Bullard’s analysis was that the appellant had ‘forgotten’ the period during which she injected Mr Harvey with insulin. Dr Bullard said this type of loss of memory is selective and that the suppression of memory was not under the control of her will. Accordingly, she would, when instructing her counsel, have glossed over the unpleasant parts of her life and emphasised those parts which depicted her as a tormented and persecuted victim. This explained why she ran the defence that she did, claiming she had no intention to harm the deceased despite what he had done to her and her daughter. Thus, her failure to instruct her lawyers properly was due to, or significantly contributed to, by her abnormality of mind. She had an overwhelming tendency to deny issues that caused her emotional distress. Denial was not a wilful process but one governed by psychological forces designed to protect the individual from disintegration and fragmentation. This was the reason for loss of memory rather than a failure of registration due to extreme intoxication.[31]In essence the case in this. The very condition from which the appellant was suffering effectively prevented her from admitting her culpability and providing details of her troubled past to her lawyers. Her psychiatric condition effectively removed the possibility of putting the issue of diminished responsibility before the court, as it caused her to maintain she was not involved with Mr Harvey’s death.[32]Dr Bullard’s final report is dated 12 May 2005. This report adds little to her earlier expressed opinions and deals largely with points made by Dr Joseph. In particular it refutes his conclusion that the killing would not have occurred if the appellant had not been intoxicated with amphetamine and alcohol at the material time. In it she also seeks to answer Dr Joseph’s point that a diagnosis of long standing emotionally unstable personality disorder does not lie easily with the absence of overt evidence of it during the time the appellant has been in prison.[33]When Dr Bullard gave evidence before us it became clear that she feels strongly that diminished responsibility is an obvious defence in what she described as “domestic killings” and that it is often overlooked because of a failure to elicit psychiatric history that would show a severe personality disorder. She did, however, observe at the conclusion of her first report that, “it is difficult to persuade juries that personality disorders are serious mental disorders.”[34]Dr Bullard emphasised that in her opinion denial is an aspect of the illness, not just denial of what she did to kill Mr Harvey, but also of other unpalatable aspects of her behaviour such as violence by her on previous occasions. She agreed that no doctor had previously said the appellant was suffering from a personality disorder and that her personality is no different when she is sober from when she is drunk. Her personality disorder would still be there if she did not abuse drugs and alcohol but those things tended to accentuate her behaviour. She fulfilled all the diagnostic guidelines for emotionally unstable personality disorder. She thought the appellant’s abnormality of mind arose from ‘inherent causes’ (see Section 2 of the Homicide Act 1957) and that her mental responsibility was substantially impaired because of the extent of her personality disorder and the length of time that she had suffered from it. She did not think the appellant was a manipulative and devious person albeit she was completely unreliable in her account of what happened. Since her conviction she had accepted responsibility for the killing in one sense, but in reality she had not. Dr Mendelson.[35]Dr Mendelson’s first report is dated 15 April 2003. He said that without doubt the appellant would readily be considered to have been suffering at the time from emotionally unstable personality disorder of the borderline type and that it was an abnormality of mind of a nature and degree substantially to impair her mental responsibility for the killing. However, he was unsure how this mental disorder contributed to the appellant’s behaviour at the time of the killing. If he had been instructed at the time he would have tried to obtain a greater understanding of the appellant’s mental state at the time of the killing.[36]As to the appellant’s failure to recollect anything pertinent to Mr Harvey’s death, Dr Mendelson said that, as she was extremely intoxicated at the time of the killing, the alcohol and drugs would have been likely to have impaired new memory registration, but there would also have been a significant contribution from psychological factors. The case was very complex and he would like to explore it further; it was likely there were specific psychological and psychiatric factors that caused her to act as she did.[37]Dr Mendelson’s second report is dated 15 July 2003. Having seen the appellant again, and obtained some recollection of events from her up until very shortly before the killing, he concluded:
“I now consider (she) had a viable defence of diminished responsibility. I believe that her profound emotionally unstable personality disorder of a borderline type in conjunction with the secondary depression, alcoholism and especially the adverse effects of the amphetamine abuse caused the combination of mental disorder such as to substantially impair her mental responsibility for the acts and omissions in the killing.”
He said that ideally he would like to have continued to see her until she was able to recall her thoughts and mental experiences during the killing. He thought the appellant’s underlying personality disorder would have been the main reason why she wished to pursue what he described as “the implausible defence” rather than “a more viable defence such as diminished responsibility being considered.” He thought her inability to recall the circumstances of the killing was likely to have been impaired, at least in part by substance abuse and consequent sleep deprivation.[38]When Dr Mendelson gave evidence he said the appellant was very difficult to interact with and consequently to gain a full appreciation of events. He put more weight on the detriment of intoxication then did Dr Bullard. Intoxication and withdrawal from amphetamine made it more likely for her to act in the way that she did. Her actions were caused by a combination of factors. He agreed that possibly, absent alcohol, her condition might not have led to the killing at all. Psychological factors were, he thought, a more likely cause of lack of memory than alcohol and drugs. He saw the alcohol and drugs as making the impairment less substantial than as viewed by Dr Bullard. However, on balance of probabilities, she was substantially impaired. Dr Joseph[39]Dr Joseph produced one report dated 20 August 2004. The appellant told him she had no memory of the killing, no intention to kill and she had discovered the body the following morning. She told him that shortly after the conviction she came to the conclusion that she had killed Mr Harvey and that she had accepted this ever since. Dr Joseph observed that she did not tell this to Dr Black who undertook a psychiatric assessment at Bulwood Hall in October 1997.[40]Dr Joseph’s view was that, if the appellant’s amnesia is genuine, the reason is intoxication with alcohol and amphetamines. She does not suffer from an emotionally unstable personality disorder and the chaotic aspects of her lifestyle were due to alcohol and drug abuse. Since she has been in prison, there has been none of the behavioural or management problems to be expected from somebody suffering from emotionally unstable personality disorder. She was not, at the time of the killing, suffering from an abnormality of mind within the meaning of Section 2 of the 1957 Act. Alcohol and amphetamine caused her to behave in an aggressive and violent manner leading to Mr Harvey’s death. Absent her intoxication with drugs and alcohol, the killing would not have taken place.[41]When he gave evidence Dr Joseph explained his opinion that a lifelong history of anxiety did not amount to an abnormality of mind and, even if it did, it had no link with the killing. Alcohol and drugs were the real problem. In response to Dr Bullard’s point that the appellant had a ‘full house’ of symptoms of emotionally unstable personality disorder, he said diagnosis of personality disorder is a laborious process. Personality disorder is a lifelong condition and it reflects the sober personality. None of the individual criteria has been displayed by the appellant over the last ten years in prison. For example, Dr Yousef records at p.1027/8 of the medical records that she seems to be an exemplary prisoner, with no evidence of mental illness. She gets on very well with staff and inmates. She had never been a discipline problem. Cases of this kind of personality disorder are normally very difficult to manage within the prison service, with numerous episodes of self harm, emotional outbursts and aggressive behaviour. There is an intense emotional instability which does not remain hidden.[42]Dr Joseph pointed to evidence of the killing having been a deliberately controlled series of acts rather than a frenzied attack. There was, in his opinion, no apparent link with emotionally unstable personality disorder. Much more would need to be known about the circumstances of the killing before any link could be made.[43]On the issue of why the defence could not have been run at the trial and the appellant’s ability to give instructions, Dr Joseph said that denial was not recognised as a particular feature of emotionally unstable personality disorder and nor was memory loss or inability to give instructions to one’s advisers. It was unclear how much planning was required for the killing, but, possibly quite a lot in the light of the number of injections and the filling of syringes. Planning ahead is inconsistent with this disorder.[44]Dr Joseph pointed to the combination of nothing in the medical notes to suggest anyone had diagnosed emotionally unstable personality disorder and any evidence since the killing of behaviour by the appellant consistent with such a condition. Why did no one make the diagnosis? He referred to Dr Orr’s report in 1986. Dr Orr is a general psychiatrist and Dr Joseph said personality disorders and substance abuse are meat and drink to general psychiatrists.[45]Significantly, Dr Joseph said that there is no explanation from the appellant for the killing and he found it quite extraordinary to conclude in such circumstances that her mental responsibility for it was substantially impaired. Many psychiatrists are reluctant to comment on the degree of impairment in personality disorder cases, whereas they are prepared to do so in a case of mental illness e.g. schizophrenia. The Law[46]Section 2 of the Homicide Act 1957 provides:
“(1) where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering such abnormality of mind (whether arising from a condition arrested or retarded development of mind or any inherent causes or induced by decease or injury”) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. (2) on a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.”
The defence only arises if the Crown has proved, whether by admission or otherwise, that the defendant killed the deceased with an intent to kill or to cause really serious injury.[47]Lord Parker CJ said in R v Byrne [1960] 2 QB 396, 403 that whether the defendant was suffering from an abnormality of mind was a question for the jury, albeit with the assistance of medical evidence. “‘Abnormality of mind’…….means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression ‘mental responsibility for his acts’ points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts. Whether the accused was at the time of the killing suffering from any ‘abnormality of mind’ in the broad sense which we have indicted above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.”[48]If satisfied by the defence on balance of probabilities on that question, they then had to consider the second question whether the abnormality was such as substantially to have impaired the defendant’s mental responsibility for her act in killing the deceased. Lord Parker CJ continued at 403-4:
“This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant but the question involves a decision not merely as to whether there was some impairment of the mental responsibility but whether such impairment can properly be said to be ‘substantial’, a matter on which juries may quite legitimately differ from doctors.”
[49]Hobhouse LJ, giving the judgment of the court in R v Arnold (1996)31 BMLR 24, said that the questions: what was the defendant’s actual state of mind at the time of the killing? did it in fact impair the defendant’s responsibility for his acts? and, if so, was such impairment substantial? were all questions that had to be answered as a matter of inference from proved primary facts. He said:
“Most usually such primary facts will be proved by persons who have either observed the killing or the conduct of the defendant shortly before or after the killing. Also relevant will normally be what the defendant has said to others at the time and what account the defendant gives either in evidence or in statements put in by the Crown of his or her conduct at the material times.”
[50]The House of Lords in R v Dietschmann [2003] I AC 1209 decided that abnormality of mind does not have to be the sole cause of the defendant’s acts in committing the killing. Thus it is submitted in the present case that even if alcohol/drugs played some part it would not be fatal to the appellant’s defence. At paragraph 34 Lord Hutton said:
“This point is well put in Simester & Sullivan, Criminal Law Theory and Doctrine (2000), pp 580-581: the taking of intoxicants should not disentitle D from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] responsibility… The drink does not supervene over his underlying subnormality. That underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing.”
But he added that, no doubt in many cases, if the jury concluded the defendant would not have killed if he had not taken drink, they would also find that his abnormality of mind had not substantially impaired his mental responsibility for his fatal acts.[51]The difficulty in the present appeal arises because the defence of diminished responsibility is sought to be run for the first time many years after the killing. The appellant advanced entirely different defences at the trial, most particularly that she had not killed Mr Harvey. This court is now faced with conflicting psychiatric evidence. How is the court to deal with that evidence? The key is to be found in Section 23 of the Criminal Appeal Act 1968 which sets out criteria to which the court is to have regard in deciding whether to hear the evidence.[52]It was argued that it is not for this court to choose between distinguished experts, each of whose evidence is credible on the issue of diminished responsibility. In other words it is not for us to decide what evidence we accept and what evidence we reject. We were referred to R v Martin [2002] 1 Cr App R 323. That was the case of the Norfolk farmer who was convicted of the murder of one of two men who were burgling his farmhouse. His conviction of murder was reduced to manslaughter on the grounds of diminished responsibility Lord Woolf CJ said at paragraph 60:
“We heard oral evidence from each of these distinguished experts who confirmed the opinions set out in their reports, summarised above. It is unnecessary for the purposes of this judgment to go into further detail of their evidence. The court is not required to choose between their respective opinions on the issue of diminished responsibility. The question is whether the evidence of Dr Joseph (the same Dr Joseph who gave evidence for the Crown in the present case) and Miss Craissati is credible. Plainly it is. The Crown, do not seek to argue otherwise. Their evidence was not available at the trial. There is a reasonable explanation for it not being called, namely the negative terms of Dr Maden’s report. Accordingly, Mr Martin is entitled to rely on the evidence of Dr Joseph and Miss Craissati.”
But there is a very material distinction between the circumstances in Martin and those in the present case. Here there is a very important issue why the evidence of Dr Bullard and Dr Mendelson was not called at the trial. Central to that issue is whether, as the appellant submits, her abnormality of mind was the very reason why diminished responsibility was not run at the time by the defence. There is strongly disputed psychiatric evidence on this issue which it has been impossible to resolve without considering the psychiatric evidence as a whole. Accordingly we have looked with some care at all of the psychiatric evidence in order to decide whether there is a reasonable explanation for the failure to adduce the evidence at the trial.[53]The Court of Appeal has on a number of occasions been faced with the problem of whether to accept fresh evidence to support a defence of diminished responsibility that was not advanced at the trial. Martin is an example; R v Ahluwalia (1993) 96 Cr App R 133, R v Straw [1995] 1 All ER 187, R v Jones (1997) 1 Cr App R 86, R v Borthwick [1998] Crim LR 274, R v Weekes [1999] 2 Cr App R 520 and R v Sharp [2003] EWCA Crim 3870 are others. The difficulty for the court is the tension between the principle that there should be one trial only and that all available defences should be advanced at it and the statutory requirement under Section 2 of the Criminal Appeal Act 1968, as amended, that an unsafe conviction should not be allowed to stand.[54]In Ahluwalia Lord Taylor CJ, giving the judgment of the court, said at p.142:
“Turning to the third ground of appeal, we consider Mr Robertson is on stronger ground. This is in relation to diminished responsibility, an issue not raised at all at the trial. In view of our conclusion, we propose to say the minimum necessary to explain the course we propose to take. There has been put before this court a significant number of reports of a psychiatric and similar nature, most of them obtained only recently. These express the opinion that at the time of the killing, the appellant’s mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957. Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth. Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism.”
The court did, however, in that case receive the evidence and order a retrial In Arnold Hobhouse LJ said:
“Whether the trial be civil or criminal, parties must be required as a matter of the administration of justice to present their case at the trial and not be permitted, one case having failed, to run a different and inconsistent case in a appellate court based on different evidence. These considerations apply equally to the crime of murder and the statutory defence of diminished responsibility.”
But he went on to point out that very exceptionally these considerations were not conclusive. He went on:
“It is thus possible for the Court of Appeal to receive fresh evidence after a defendant has deliberately not run a particular defence at trial and even where his predicament has arisen from him having told lies at an earlier stage.”
However, the burden of proving diminished responsibility lies on the defence, and the defendant must prove “some proper and viable evidential basis for the defence before it can be submitted that the conviction for murder was unsafe.”[55]Sharp was an appeal referred to the Court of Appeal by the Criminal Cases Review Commission. Buxton LJ at paragraph 25 cited Hobhouse LJ in Arnold:
“It is not fatal to an appellant’s application that the court receive new evidence that the issue to which it is relevant was not raised at the trail; however, it remains a factor to be taken into consideration. Ultimately, the most important consideration must always be whether the proffered evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interest of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was made unsafe.”
Buxton LJ referred to two principles. The first is that facts establishing innocence should not be excluded because of a previous mistaken decision by the appellant or by his advisers. The second is that it is not open to appellant’s to choose not to run a defence at trial and then go back on that decision at the appeal. He pointed out that the second principle was very clearly stated by Lord Bingham CJ in R v Campbell [1997] 1 Cr App R 492 where he said:
“This Court has repeatedly underlined the necessity for defendants in criminal trials to advance their full defence before the jury and call any necessary evidence at that stage. It is not permissible to advance one defence before the jury and when that has failed, to devise a new defence, perhaps many years later, and then seek to raise the defence on appeal.”
[56]Buxton LJ then went on to investigate why the defence of diminished responsibility had not been run at the trial. After considering various authorities he drew from them the following guidance at paragraph 32. i) The inhibition on running a different defence on appeal is not limited to cases where the original decision was in some way dishonest, or manipulative or one of purely tactics. ii) The second defence can only be adduced in very exceptional cases. iii) That will normally only be in cases where, as indicated by Schiemann LJ in Weekes, the original evidence was available at the trial. iv) The criteria that will be looked for before an exceptional case can be accepted are: i) that the availability of the diminished responsibility defence is effectively unchallenged or certainly not controversial; and ii) that there is an explanation in medical terms for any decision by the defendant not to run that diminished responsibility case at the trial. What Schiemann LJ had said in Weekes at 529F was:
“Lastly, although as Borthwick shows, an exceptional case may arise, we think it much less likely that it will be in the interest of justice to admit evidence of diminished responsibility which comes into existence only after the trial, rather than was unanimous and undisputed at the time of trial. The former case is, we think, likely to founder on the principle explained in Jones (Stephen), and in Ahluwalia. ”
Discussion.[57]The appellant faces the following difficulties. The defence of diminished responsibility is raised for the first time years after the trial. The evidence that is now sought to be admitted is both challenged and controversial. The defence at the trial did not run diminished responsibility because they had no evidence to support such a defence and in any event to run such a partial defence to murder (in respect of which the burden of proof is on the defence) was likely to be detrimental to the appellant’s main defence which, if successful, would have resulted in her acquittal. Mr Tim Owen Q.C, who has appeared before us for the appellant, argues that the basis for the defence was available at trial in the form of the appellant’s medical notes; it is simply that no psychiatrist was instructed to consider them. It is the experience of this court that in cases where the abnormality of mind is said to arise from a personality disorder there is very frequently strongly disputed psychiatric evidence. We note Dr Bullard’s comment that it is often very difficult to persuade juries of diminished responsibility in such cases. First if Dr Bullard has been instructed to produce a report for the trial it is highly probable that the prosecution would have answered it on the lines of the report from Dr Joseph. It seems to us entirely speculative whether diminished responsibility would, even with a favourable report from Dr Bullard, have been run at the trial, particularly if the appellant had maintained her instructions to her lawyers of her recollection of events. The defence team would have had in mind that the findings of an abnormality of mind had, in the end, to be made as a matter of inference from proved facts.[58]It seems to us that the most critical consideration is whether the appellant’s amnesia about the circumstances of the killing is in truth a manifestation of her abnormality of mind. Resolution of this issue goes a long way towards determining whether there is a reasonable explanation for the defence not having been run at the trial.[59]We have come to the conclusion that we prefer the evidence of Dr Joseph on this issue. We do so for the following reasons. First, the appellant has not been consistent throughout in her lack of recollection or denial. Second, denial is not a documented feature of an emotionally unstable personality disorder and third there are more obvious explanations for the lack of recollection/denial than that it is a manifestation of her mental condition. These are(i) that she is not telling the truth and(ii) the effect of alcohol and or amphetamine.[60]We recite briefly the chronology to illustrate the changing picture given by the appellant. She discovered Mr Harvey’s body at 8.30 am. At 8.35 am she telephoned her husband but spoke to Andrew saying, “I’ve killed Norman”, (albeit she denied in evidence that she had said this). At 8.51 am she told police officers who arrived at the deceased’s flat:
“I just found him there”
. At 11.30 am she provided a witness statement about events on the previous day and included the fact that Andrew had visited her in the early evening. However, she failed to mention that anything untoward had happened and suggested Mr Harvey was asleep from 5.30 pm onwards. She told the police that another man, Kevin Miller, had a grudge against Mr Harvey and had attacked him two weeks before his death, the plain implication being that Miller may have been responsible for the killing. At 2.55 pm when arrested and cautioned she said:
“I did not kill him.”
On being booked in at the custody desk she said:
“I wouldn’t murder the old boy, I’ve saved him when he has been in a coma before.”
Later in the afternoon when the appellant was in a cell, notes were made of her comments. Some of the comments suggested the appellant was angry with Mr Harvey for abusing her daughter and making a comment about her mother, but most of the comments comprised musings over her son having injected Mr Harvey. The Crown suggested these were consistent with the germ of an idea that this might be her defence. The following day the appellant was examined by a doctor. She did not suggest she was so intoxicated by drink or drugs that she could not remember what had happened; indeed, she did not admit to having taken alcohol or amphetamines. When interviewed she declined to comment save to say, “I don’t want to because I don’t want to put myself in a position,” and later, “I’ve been so miserable all my life, I can’t get my thoughts together at the moment.” At the trial the appellant’s evidence was that she had some recollection of the day in question but none of the time at which Mr Harvey was injected.[61]Thus the appellant first of all admitted to her son Andrew that she had killed Mr Harvey and then at different stages said various things, before eventually saying she had no recollection of the critical time. The Crown say, with some force, that the history of what she said after the killing has the hallmarks of someone trying to avoid responsibility and to find an explanation leading to acquittal and that this is entirely inconsistent with someone forced by her medical condition into having no recollection of the material events. Dr Bullard said she did not think the appellant was devious and manipulative, but the appellant has adopted various different stances and Dr Bullard’s view was necessarily a personal one rather than a medical one. We did not receive any convincing explanation from Dr Bullard or Dr Mendelson as to how these inconsistencies in the appellant’s account fitted with her lack of recollection/denial being a manifestation of the disorder.[62]There is inevitably a tension in the interests of justice test between the statutory requirement that an appeal must be allowed where a conviction is unsafe and the principle that a defendant cannot run one defence at his trial in the belief that if it fails he will be allowed a second opportunity to run a different defence. In Arnold Hobhouse LJ observed that while it was not fatal to an application to the court to receive fresh evidence that the issue to which it is relevant was not raised at the trial, it remains a factor to be taken into account. Similarly the court must consider what, if any reasonable explanation there is for the failure to adduce the evidence of the trial. But he added:
“Ultimately the most important consideration must always be whether the ………….. evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interests of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was unsafe.”
Our conclusions.[63]The critical feature about the present case is that it is not established that the reason the appellant failed to run diminished responsibility at the trial was all part and parcel of her abnormality of mind ­ a manifestation of the condition that would have given rise to that defence. Absent proof of that, there is no reasonable explanation for failing to adduce the material psychiatric evidence at the trial. Leading and junior counsel gave careful consideration as to how the defence case should be run. There was no reason to suppose that a viable defence of diminished responsibility could be advanced and in any event they had good reason for running the defences that they did which(a) reflected their client’s instructions and(b) if successful, would have resulted in the acquittal of the appellant. Diminished responsibility, we emphasise, is a defence that requires proof by the defence, and is only a partial defence to murder, reducing it to manslaughter. Nor should it be overlooked that with diminished responsibility, although psychiatric evidence is adduced to assist the jury, the decision on the critical questions is that of the jury. As Dr Bullard pointed out, it is notoriously difficult to persuade juries that personality disorder amounts to an abnormality of mind. Not least of the other matters which the jury would have to have had in mind, even with the benefit of psychiatric evidence, would have been the appellant’s inconsistencies of account and recollection of the material events.[64]We have accordingly decided not to admit the fresh psychiatric evidence of Dr Bullard, Dr Mendelson and Dr Joseph save for the purpose of deciding whether there is a reasonable explanation for the failure to adduce the evidence at the trial. There is no reasonable explanation for failing to adduce the evidence of diminished responsibility at the trial. In these circumstances, and after applying the four criteria in Section 23(2), we do not think the ‘interests of justice’ test is met. We emphasise that this is a decision that ultimately turns on the facts of the particular case.[65]There is a further ground of appeal with which it is necessary to deal briefly. Provocation was not raised at the trial or on the first appeal. Nor was the case referred to us by the Criminal Case Review Commission on this basis. Mr Owen realistically accepts that, if he cannot persuade us to admit the evidence of Dr Bullard and Dr Mendelson on the question of diminished responsibility, he cannot succeed on provocation. On the other hand, he submits that, if it is in the interests of justice to admit the evidence, then it is relevant to provocation as well as to diminished responsibility. Since the conclusion of the argument the Privy Council has decided the appeal of H.M Attorney General for Jersey v Holley (Privy Council Appeal No3 of 2004). In which the Judicial Committee by a majority of six to three followed the minority opinion of the House of Lords in R v Smith (Morgan) [2001] IAC 146. The effect of this decision has been to tighten the second, or objective, test for provocation by limiting the characteristics of the defendant with which the reasonable man may be clothed. No longer is the test, as propounded by Lord Hoffmann in Morgan Smith, one of excusability. This would have been an additional hurdle for the appellant, but in the event is not relevant because of the conclusion we have reached on the psychiatric evidence.[66]In our judgment the conviction is safe and therefore the appeal must be dismissed. As we hope is obvious from this judgment, it was however entirely appropriate for the Criminal Cases Review Commission to have referred this case to the Court of Appeal in the light of the fresh material that they had.

Cited in 1 later judgment