York (Lee), R. v [2007] EWCA Crim 1743

Case No 2005/05753/D4

[2007] EWCA Crim 1743

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 20 June 2007

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE PILL

MRS JUSTICE DOBBS DBE

and

MR JUSTICE LLOYD JONES

Between

R E G I N ACrown

- v -

Between

JASON YORK (NOW) LEE

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MR S W LESLIE QC and MR S FERGUSON

appeared for APPELLANT

MISS J MILLER QC and MR M BUTT appeared for CROWN

J U D G M E N T

[1]On 22 April 2002, in the Crown Court at Bristol, before Maurice Kay J, Jason York (now known as Jason Lee) pleaded guilty to an offence of murder (count 1). On 30 April, before the same court, he was convicted of attempted murder (count 2). No verdict was taken on the alternative count (count 3) of wounding with intent to do grievous bodily harm. On 1 May he was sentenced to life imprisonment on count 1 and to 8 years' imprisonment concurrent on count 2. His brother, Timothy John Seviour, was convicted of murder on count 1 and attempted murder on count 2. He, too, was sentenced to life imprisonment on count 1 and to 8 years' imprisonment on count 2. The appellant appeals against conviction on count 1, notwithstanding his plea of guilty, by leave of the single judge, who also granted an extension of time of three-and-a-half years.

[2]The appellant and his brother had a troubled family history and were both taken into the care of the Social Services. The appellant was aged 22 at the time of the offences and his brother slightly younger. They went to several different foster homes. They usually lived apart from each other. When the appellant was about 16 years old he went to live with Kevin York, the victim in count 2, who at the time of the offences was aged 34. They lived at an address in Trowbridge under a Social Services supported lodging scheme. York was initially the appellant's landlord, but he soon became his official foster carer.

[3]The appellant was groomed by York and a homosexual relationship developed between them. There was considerable violence between them at times. In the early days the appellant had been confused about his sexuality, but had later realised he was not homosexual. He said that he felt trapped in the relationship because York had shown him love and care of which he had been short for much of his childhood. The relationship came to an end following an incident in 2001.

[4]Timothy Seviour formed a brief relationship with a woman called Elizabeth Hartley (the deceased in count 1). The appellant, Seviour and the deceased were part of the same circle of friends. Seviour ended his relationship with Elizabeth Hartley, having formed one with another woman. The deceased was very upset about that new relationship and arguments took place between them.

[5]On 6 May 2001, the appellant and Seviour went out drinking together in Trowbridge. The appellant told his brother what had happened to him while he was living with York. Seviour became extremely angry. They decided to visit York. They returned to the house, collected two knives and drank more alcohol. At about 9pm they entered York's house via an upstairs window and waited for him.

[6]York returned home at about 11pm with Elizabeth Hartley. When York was standing at the breakfast bar, the appellant ran through the kitchen with a knife and stabbed him in the chest. Elizabeth Hartley stood up and cried out in alarm, whereupon Seviour attacked her with a knife. York pushed past the appellant and went into the bathroom. The appellant failed to get into the bathroom. He returned to the lounge, where he joined Seviour in an attack on the deceased. York ran out of the bathroom onto the stairs. The appellant and Seviour pursued him. York managed to run upstairs and escape out of the bedroom window. The appellant and Seviour travelled to Bath, where they stayed overnight in a friend's house. They told the friend that they had been involved in a fight in the course of which someone had pulled a knife on them.

[7]However, the following evening the appellant telephoned the police and said that he and his brother would like to turn themselves in as they believed that they might have killed a woman.

[8]The deceased woman had died from multiple stab wounds. She had suffered 25 deep stab wounds to her face and body, many of which were inflicted with a considerable degree of force and some of which had penetrated internal organs. York had suffered two stab wounds to the chest.

[9]The prosecution case was that the appellant went to York's house harbouring deep-seated anger and resentment towards York. The use of a knife and the pursuit of York was evidence that the appellant had intended to kill him. Tragically, it was Elizabeth Hartley who was killed. The prosecution case against the appellant in relation to York was one of attempted murder.

[10]The defence case in relation to that count was that the appellant had gone to York's house to tell him how he felt and to frighten him because of all that York had previously put him through. He had not intended to kill anyone on 6 May. It was on that basis that the charge of attempted murder was contested. As indicated, the appellant pleaded guilty to the offence of murdering Elizabeth Hartley.

[11]The issue for the jury, therefore, was the narrow one of whether or not the appellant had intended to kill York because for a verdict of guilty on a charge of attempted murder an intent to kill must of course be proved. A verdict of guilty to murder may be reached if the intent is to kill or to cause really serious bodily harm.

[12]York gave evidence, a summary of which we have given above. The issue we have indicated was the only one before the jury in April 2002.

[13]The defence had available to them at the trial a psychiatric report on the appellant from Dr A R Tomison, a Consultant Forensic Psychiatrist, who had examined him on 6 December 2001. In such circumstances it is frequently the practice that a psychiatric report is obtained from such a source in order to consider defences or partial defences, such as diminished responsibility or provocation, to the charge of murder. Dr Tomison submitted a written report in which he expressed the opinion that the partial defence of diminished responsibility, which would have reduced murder to manslaughter, was not available. Dr Tomison had the case papers before him. He interviewed the appellant and referred to such other material as he saw fit. The trial was conducted by Maurice Kay J in a manner of which no criticism can be or was made. The appellant was represented by Mr John Royce QC (as he then was), a counsel very experienced in criminal cases. There can be no criticism of those who represented the appellant at the time for proceeding as they did and for advising the appellant that no complete or partial defence was available. It was on that basis that the appellant pleaded guilty to the offence of murder. He was found guilty of the offence of attempting to murder York.

[14]While the appellant was in custody he was visited by a Christian Church worker. It was suggested that further enquiries should be made as to the appellant's mental state at the time of the killing. As a result the appellant consulted solicitors, who instructed another distinguished Consultant Forensic Psychiatrist, Dr H Needham-Bennett, to examine the appellant and to report.

[15]We accept that the fact that the appeal is brought has in no way been contrived by the appellant. He has acted in good faith in the action which he has taken. It is also clear that this is not one of those cases where a tactical decision was taken not to raise the partial defence of diminished responsibility at the time because it might prejudice the overall conduct of the defence case. There was no evidence available which could have supported any such defence or could have supported a suggestion that a not guilty plea should be entered to murder on the basis of diminished responsibility.

[16]Dr Needham-Bennett interviewed the appellant on 11 and 16 March 2005, about four years after the events which led to the death. He produced a report dated 4 October 2004, which deals with a possible defence of diminished responsibility and also a possible partial defence of provocation. It is clear that Dr Needham-Bennett rightly followed such avenues as he could. In the event the possibility of a defence of provocation has not been pursued, in our judgment rightly so, on the available evidence.

[17]However, as to diminished responsibility, Dr Needham-Bennett's conclusion in his first report was:

"If my opinion that Mr Lee had a borderline personality disorder is correct, this mental disorder in my opinion amounts to an abnormality of mind."

We will refer to the report in more detail a little later.

[18]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 from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."

The burden of proving diminished responsibility is upon a defendant. If successful, it means that the conviction would be of the lesser offence of manslaughter and not of murder.

[19]On behalf of the appellant Mr Leslie QC submits that, on the basis of Dr Needham-Bennett's report, there should be a retrial of the issue of murder. He further submits that, if there is such a retrial, it would also require a retrial of the attempted murder charge because otherwise the jury would be prejudiced in considering diminished responsibility by the verdict of attempted murder of which they would be made aware.

[20]Having received the report of Dr Needham-Bennett, the prosecution obtained further reports from Dr Tomison. He first reported on 20 June 2006 and, following a further interview with and an examination of the appellant, on 24 October 2006. The appellant's solicitors obtained a further report from Dr Needham-Bennett. It is dated 25 February 2007 and is revised to include references on 1 May 2007. Dr Needham-Bennet comments upon the report of Dr Tomison. He also did a very considerable amount of work on the medical and social security records on the appellant. In his second report he has set out the extracts from those records, which he considers to be relevant to the present issue. He has clearly gone to great trouble in order to do that. Although he refers to the state of the records as "chaotic", he has had regard to them. Dr Tomison has submitted a further report dated 16 May 2007 in reply to that of Dr Needham-Bennett.

[21]Mr Leslie's submission is that, in considering whether the appeal should be allowed, the fresh evidence of Dr Needham-Bennett should be admitted. Section 23 of the Criminal Appeal Act 1968 provides that the court may "if they think it necessary or expedient in the interests of justice" admit evidence such as this. Section 23(2) provides that, "in considering whether to receive any evidence, the court shall have regard in particular to", and there is then a list of four items.

(b) :

"whether it appears to the court that the evidence may afford any ground for allowing the appeal."

It is accepted by the Crown that the other considerations to which the court shall have particular regard are satisfied in this case.

[22]At the invitation of Mr Leslie, the court decided to hear the evidence of both Dr Needham-Bennett and Dr Tomison de bene esse, before deciding whether it is necessary or expedient to admit that evidence in the interests of justice.

[23]For the prosecution Miss Miller QC submits that the authorities place a high burden on an appellant, in circumstances such as these, in obtaining an order that evidence should be admitted. She submits that the burden has not been satisfied in this case. She has referred to the authorities which follow from this point having arisen. In R v Borthwick [1998] Crim LR 274, the court held that if there was overwhelming or clear evidence that a defence of diminished responsibility would have succeeded, and that it was the mental illness itself that caused the defence not to be run, the interests of justice would seem to require the substitution of a manslaughter verdict, or at least a retrial. In R v Ahluwalia

(1993) 96 Cr App R 113

, Lord Taylor of Gosforth CJ put it in this way at page 142:

"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 [diminished responsibility] to be raised for the first time here if the option had been exercised at trial not to pursue it."

[24]In R v Neaven

[2006] EWCA Crim 955

[2007] 2 All ER 981

, the court considered the authorities and drew the following guidance from them. In the judgment of the court Rix LJ stated at paragraph 41:

"(1) That the obligation to advance his whole case at trial, and the scepticism directed towards tactical decisions remain fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interest of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this, (3) each case turns on its own facts. Therefore, (4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (in the absence of opposition from the appellant himself -- see Kooken) to admit it. (5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant's illness itself. (6) The emerging only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of the offence."

We have indicated that the question of tactical decisions does not arise in this case. Miss Miller relies on the statements in the authorities that the evidence of mental illness or substantial impairment must either be "common ground or otherwise clear and undisputed". In the present case she submits that it is neither unclear nor undisputed and that the evidence of Dr Tomison, to which we will refer, is to a quite different effect.

[25]Mr Leslie QC for the appellant submits that the evidence available from Dr Needham-Bennett is such that a jury should try the issue which has now arisen. The evidence of Dr Needham-Bennett, a highly qualified source and given in good faith, required that there be a retrial. He relies on the decision of this court in R v Gay and Gay

[2006] EWCA Crim 820

, where evidence from a medical expert provided a hypothesis as to the cause of death which amounted to a plausible alternative explanation of the central medical phenomenon in the case. The court stated:

"96. The fact is, therefore, that the science was there, but its potential significance was not recognised by those involved in the trial. This was not through any want of diligence by the appellants or their legal team. It was only subsequently that [the new legal expert] was approached, by a different legal team, and expressed the opinions he has now given in evidence to us. In all the circumstances we take the view that a reasonable explanation does exist in this case for the failure to adduce the evidence at trial."

That case is clearly distinguishable on the basis that the present situation arises not through any medical or other scientific discoveries; it arises because a different medical opinion on an issue which had been considered in 2001 has now become available. Mr Leslie submits, however, that the principle stated in Gay should apply to the present situation.

[26]Mr Leslie also relies on the decision of this court in R v Martin

[2002] 1 Cr App R 27

. That was the highly publicised case where the appellant shot two people who were burgling his farmhouse. Both were injured and one died. At the trial, a consultant psychiatrist had found no evidence that Martin was suffering from depression or a mental illness. Martin had point-blank refused (paragraph 55 of the judgment) to co-operate with a court-appointed psychiatrist. On the hearing of the appeal the same consultant psychiatrist and another consultant psychiatrist held to the same view. But a different psychiatrist gave evidence for the defence that Martin suffered from, and was suffering at the time of the offence from, a long-standing paranoid personality disorder which could be classified as an abnormality of the mind, arising from inherent causes within the terms of section 2 of the 1957 Act. Having considered the medical evidence, the court allowed the appeal and substituted a verdict of manslaughter for one of murder.

[27]The series of authorities more recently considered in Neaven was not cited to the court in Martin. In the unusual and highly charged circumstances of that case, we do not doubt that the court was entitled to reach the conclusion it did. But we find no general principle emerging from the case which can be applied either generally or in the present case.

[28]We follow the line of authorities summarised in Neaven. The principle of finality and of all issues being raised at a single trial is an important one in the administration of justice. We accept, however, the possibility that a court, having heard psychiatric evidence, even if based on a much later examination and even if disputed, which leads the court to form a clear view that the manner of raising the defence at trial is demonstrated to have been unsatisfactory, or the evidence then available is demonstrated to have been unreliable, the court would act in an appellant's favour. Careful scrutiny of the proposed fresh evidence is, however, required.

[29]The approach of the court in circumstances such as there has been demonstrated in the House of Lords in Pendleton

[2002] 1 WLR 72

. The House considered the way in which this court should approach the situation in which fresh evidence has become available since a trial. The court upheld the approach which had been followed in the earlier case of Stafford v Director of Public Prosecutions

[1974] AC 878

, expressed in the speech of Lord Dilhorne. Giving the leading judgment in Pendleton, Lord Bingham of Cornhill cited the observation of Viscount Dilhorne. The House in Pendleton held that the principles expressed in Stafford were correct and a submission that the Court of Appeal had asked the wrong question, by taking as the test the effect of the fresh evidence on their minds and not the effect that the evidence would have on the mind of the jury, was rejected. Lord Bingham stated:

"I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe, and not whether the accused is guilty."

Having considered the submissions of counsel in Pendleton, Lord Bingham stated: 30. "For these reasons it will usually be wise for the Court of Appeal in a case of any difficulty to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe." 31. "It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?"

[30]The present case is distinguishable from Pendleton on its facts in that the medical evidence upon which reliance is sought to be placed is based on a medical examination several years after the trial and the events considered at the trial. We will consider the implications of that later in this judgment.

[31]We turn to the medical evidence. Mr Leslie invites the court to bear in mind the human tendency, to which it is suggested that Dr Tomison may be subject, now to stand by an opinion already formed and expressed in 2001. He also invites us to bear in mind that in 2001 Dr Tomison, having found no abnormality of mind, did not set out in his report his reasons for that negative view and did not examine all the documentation which has subsequently come to light. The prosecution say that, having found that there was no condition which could bring the case within section 2 of the 1957 Act, Dr Tomison did not need to set up a proposition merely to destroy it. Mr Leslie submits that the guarded way in which, as we shall see, Dr Needham-Bennett has expressed his opinion, should not lead the court to conclude that the opinion was a weak or an unsound one.

[32]Both doctors express an opinion as to the current medical condition of the appellant. The opinions are not significantly at variance. At page 16 of his first report, Dr Needham-Bennett stated that at the time of his interviews the appellant "appeared well. He reports that some days are better than others, and on occasions he feels very low in mood. .... Mr Lee advises me that he is now a qualified fitness instructor. He is involved in a Degree course in Social Sciences with the Open University and would like to learn a trade while in custody."

[33]In his report dated 24 October 2006, Dr Tomison put in this way:

"He presented as a tall young man of athletic build, well turned out at interview, whose behaviour was entirely unremarkable, as was examination of the form and content of his speech and thought processes. His mood was normal and appropriate to the situation. He is clearly of good intelligence and had a good insight and awareness of his problems both at the material time and how his earlier life had shaped things. He has clearly used his time in custody to full advantage, reflected long and hard on his various problems and is working to a sensible and mature plan to help him address these issues on a wide front."

[34]The difficulties which the appellant faced in his earlier life are well documented in the medical reports. There is no need to spell them out in further detail. It is clear that the relationship with York was very damaging to him.

[35]Having considered the background, Dr Needham-Bennett put it in this way in his report of 4 October 2005:

"9. It is against this emotionally impoverished background that Mr Lee first came into contact with Kevin York, a man I am told given a caring role to help him establish autonomy and independent living skills. What happened, according to Mr Lee, is quite the opposite. 10. At this point Mr Lee was using drugs, had committed a serious offence and was frightened of being caught and imprisoned. He was hoping to find a 'family' and both wanted, and needed consistency in his life and a father figure on whom he could rely. He was by his account naive about homosexuality. He can at best be described at this stage as being vulnerable. 11. Initially Kevin York appeared to be the father figure that Mr Lee hoped to find. If Mr Lee is to be believed, what followed seems to be a closing of their relationship with late night chats, with Kevin York reporting special abilities of telepathy and spiritual contact to help people. He shared confidences with Mr Lee of his own abuse. He suggested outings to the pub and chose how Mr Lee should dress. He gradually introduced non-sexual physical contact (brushing his hair) and then body massage, culminating in sharing a bed and then anal intercourse. Mr Lee found this distressing though he felt emotionally dependent on Kevin York and powerless to say 'No.' 12. There followed a turbulent homosexual relationship and it appears common ground between Mr Lee and Kevin York that the relationship was volatile and that after their relationship became sexual, there was violence, arguments and threats from one to another. (Witness statement of Kevin York, 8.05.01: [his drug use and requests for money and stealing] caused numerous arguments and I punched him on a few occasions.... He quite often threatened me with a knife'). 13. Mr Lee describes a breakdown of trust in Kevin York after the relationship became sexual and he describes subordinating his own sexual preference in favour of the maintaining of what he later conceptualised as an abusive relationship. He reports that he was verbally, sexually and physically abused by Kevin York. 14. He started to resent him, though remained reliant on him, both emotionally and on occasion for work and drugs. His mood deteriorated and he eventually cut himself and took overdoses. The self-inflicted cuts were not suicidal in nature but were to help expunge his self-loathing; the overdoses were taken (with one exception) in a spirit of carelessness as to whether he lived or died. 15. He tried to leave Kevin York but found himself drawn back against his better judgment. On one occasion he reports running away to his mother. Ultimately he concluded that the only way to be safe, to get away without going back to Kevin York, was to kill him. He was able to recognise his own emotional dependency and such drastic measures suggest the degree to which he felt controlled by a man whom he had come to see as his abuser. 16. At the time of the offence he was emotionally aroused, angry and fearful. There are varied accounts of his level of intoxication though it appears that he was under the influence of stimulant drugs and alcohol at the time of the offence. 17. The offence appears to have been planned with his brother and Mr Lee took some degree of comfort in the planning stage to hear that his brother, by dint of the plans, believed that Kevin York was his abuser. In this regard he was looking for external validation of his abuse. This is further exemplified in Mr Lee's desire to tie Kevin York up and get him to admit to what he had done or at least hear Mr Lee's own opinion in relation to abuse. 18. I note in relation to the offence that Mr Lee and his brother went armed with knives, cut the phone line, Mr Lee adopted a rudimentary disguise and they discussed ways to get rid of the body and further violent plans should anyone be with Kevin York. 19. During the assault itself it appears that Mr Lee initially focused his anger on Kevin York though later switched his violence to 'Lizy'. This remains perplexing for him, as he reports no ill feelings to her. I note, however, that he had been emotionally close to her, that Mr Lee values emotional closeness in a relationship, and felt that his brother had taken advantage of the situation in having a short sexual relation with her, without really wanting a relationship. It seems clear that the initial plan was to kill Kevin York and I note that the prosecution accepted this point. I cannot explain why Mr Lee transferred his violence from Kevin York to Lizy except as previously noted, that there may have been underlying feelings of hostility, or that she was simply there, and Mr Lee, in the context of alcohol and simulant use, felt the need to rid himself of extreme anger, and did so in a violent way."

Dr Needham-Bennett went on to express his opinion at page 20 as follows: 38. "With the same provisos relating to the information I have received, it seems likely that Mr Lee at the time of the offence had an abnormal personality, this caused by the factors in his upbringing described in detail in the report. 39. Whether this can be 'reduced' to a single diagnosis of a specific personality disorder is difficult to say conclusively. 40. Given his history of overdoses, self-cutting, mood disturbance, (arguably) confusion over sexual identity, emotional dependency, mistrust of others, and him repeatedly going back to an intense and unstable relationship to avoid abandonment, it seems likely that he was suffering from an emotionally unstable personality disorder of a borderline type. 41. He has also some features of a dependent personality disorder where he subordinated his own needs to another on whom he was dependent, and showed undue compliance with their wishes, and discomfiture when sensing abandonment. 42. These are defined in ICD 10, and I append a copy." 43. "If my opinion that Mr Lee had a borderline personality disorder is correct, this mental disorder in my opinion amounts to an abnormality of mind. 44. In relation to this, whilst it is possible that his ability to exercise willpower to control physical acts was reduced by dint of his personality, I note voluntary intoxication at the time of the offence and the ability to plan the offence. 45. Whether such abnormality of mind substantially impaired his mental responsibility for his acts is a matter for the court. 46. Current Mental State 47. I am asked to comment on his current mental state. 48. He still reports difficulty trusting people. He appears to be trying to better himself in prison and expressed great regret at his actions. 49. He reports a strong desire to remain drug free. 50. There is no current evidence of an affective disorder or psychotic illness. 51. In relation to personality traits that may have amounted to a borderline personality disorder, this appears much improved. In this regard I note abstinence from drugs, the passage of years and separation from his adverse life circumstances."

[36]In his second report Dr Needham-Bennett sets out those extracts from the documentation he has been at pains to examine, which are relevant to the issue before the court. Reference to some of these was made in the course of the hearing and when he gave oral evidence. Reference is made to Dr Tomison's report and Dr Tomison's statement that he (Dr Needham-Bennett) had not relied on features of dependent personality disorder in later arguing that Mr Lee had an abnormality of mind. Dr Needham-Bennett says:

"He is correct to point this out. In discussing Diminished Responsibility [in his earlier report dated 4.10.05] I should have included that: 'if my opinion that Mr Lee had a borderline personality disorder, and features of a dependent personality disorder, is correct, this mental disorder in my opinion amounts to an abnormality of mind.'"

In dealing with Dr Tomison's report, to which we will refer, Dr Needham-Bennett stated: 53. "I acknowledge that whilst in custody, all available reports suggest that he has been polite and courteous, well behaved and utilised counselling and educational opportunities. 54. However, professional staff indicate that he has felt intimidated by others, angered, and is described as being emotionally fragile."

[37]We have been referred to the references. Very few of them support the view that the appellant has behaved other than sensibly and well while in custody. There are a limited number of adverse references. The one on which particular reliance is placed is a note of a mental health nurse of 4 August 1997, which precedes the offence. It refers to the appellant's "quite marked low self-image, self-esteem, deficits in the area of problem-solving, some lack of social skills and some emotional difficulties based on his feelings about the past". The entry concluded that "there was no definable mental illness".

[38]With the help of counsel the entries have been analysed and views upon them have been expressed by both doctors. Dr Needham-Bennett says:

"It is my opinion that these observations are consistent with residual symptoms caused by an abnormal personality."

Dr Tomison makes the point that, in considering the bulk of the documentation available, there are very few entries which suggest anything other than a normal mental state.

[39]In relation to Dr Tomison's opinion as to the appellant's "good prison behaviour", Dr Needham-Bennett states:

"It is my opinion that this is unsurprising -- he feels safe with clear external boundaries and constraints; he has flourished in a custodial setting where institutional dependency and subordination are required. Similarly he has had no real opportunity to have further intense and unstable relationships. .... I would not now describe Mr Lee as suffering from a personality disorder using the description within the International Classification of Diseases, 10th revision. In my opinion this does not invalidate my earlier diagnostic formulation and I would state he remains a very troubled young man, still preoccupied with, and troubled by his offending, his relationship with Kevin and his mother's rejection. I accept that a weakness of my argument is that much of the evidence for the dependent and borderline aspects of Mr Lee's personality comes from the time that he was involved with Mr York. Given that his relationship with Mr York commenced at the age of 16 and terminated with the offence, this was a highly important and significant part of his life. In many ways it is inevitable that much of my diagnostic formulation was based on this period. .... He grew up in a chaotic and inconsistent environment. He was abused and lacked any consistent good adult role model. He was emotionally hurt by his alcoholic mother and her rejection of him. He became angry, aggressive and violent. There are mixed reports about how he interacted emotionally with others but it seems from early reports that he tended to push others away. It was later and in association with drug use, an abusive relationship and further severe family pressures that we see the emergence of emotional dependency."

Dr Needham-Bennett added: 58. "On the issue of whether Mr Lee had an irresistible urge to take any substance on the day in question, Dr Tomison and I agree that he did not." Dr Needham-Bennett set out the features which he finds in the appellant's personality and stated: 59. "I use these arguments to state:

'if my opinion that Mr Lee had a borderline personality disorder is correct, this mental disorder in my opinion amounts to an abnormality of mind'

. I stated that whether such abnormality of mind substantially impaired his mental responsibility for his acts is a matter for the court. I cannot go beyond this. 60. .... 61. My opinion was not half-hearted. [That is reference to a comment by Dr Tomison.] It sought to draw attention to diagnostic uncertainty in relation to Mr Lee's personality. I am unable to assert my opinion with complete certainty."

[40]In his first report dated 20 June 2006, before he had examined the appellant, Dr Tomison said:

"I stand by my original report [of 2001]. I remain of the opinion that there is no evidence to suggest that any defence based on an irresistible urge to drink alcohol (or take other substances) would have been open to him. .... .... Having said that, the evidence as to the day in question demonstrates a considerable degree of pre-planning and no single provoking incident which resulted in a sudden and immediate loss of control. If Mr Lee's account is believed, and I myself did not doubt its veracity, then there seemed to me to be some mitigating factors in respect of the non-fatal assault and, by extension, given that the killing arose out of the initiation of the assault on Mr York senior, matters which could reasonably be taken into account when setting any tariff in respect of the life sentence."

We will return briefly to that question.

[41]Both doctors were thoroughly examined and cross-examined by experienced counsel. Dr Needham-Bennett accepted that the relevant offence had been planned, but said that that made no difference to the issue of abnormality of mind. He noted the consistency between the accounts which the appellant had given at different times. That indeed is a feature of the material available to the doctors. Dr Needham-Bennett maintained his opinion that the features he found showed a personality disorder of the borderline type and also traits of a dependent personality disorder, those conditions being set out at F60.3(1) and F60.7 of the International Classification of Diseases document. His conclusion was that there was borderline-type emotional unstable personality disorder, with features of a dependent personality disorder. The doctor accepted that the appellant was much improved at the time of his examination. No one has said that he was ever mentally ill. It is difficult to say whether he continues to have a personality disorder. Some of the references in the records demonstrated symptoms of a residual personality disorder, in the doctor's opinion. This type of personality disorder does well in a controlled environment where there is no opportunity to engage in emotionally charged relationships.

[42]However, the appellant was still a very troubled man. The doctor detailed the strengths and weaknesses of the opinion he was putting forward; he had ultimately come to the conclusion that the appellant had a personality disorder at the material time (the time of the offences). He could not say, if the appellant was removed from a controlled environment, what would happen. Whether there was a personality disorder depended on the threshold that was taken. The doctor could not say unequivocally that a personality disorder was now present. He did not know.

[43]When cross-examined, it was put to Dr Needham-Bennett that the first time he had examined the appellant was in March 2005, that was four years after the offence. He accepted that that put him at a disadvantage in assessing the appellant's mental condition at the time of the offence. He repeated that, while in his view it was surprising that there had been such an improvement in the appellant's condition, this was not an anti-social personality disorder where outbursts of anger could be expected within the controlled environment. He accepted that all the outbursts of anger in the past had related to York, and that everything had come out of that relationship. He accepted that the prison records showed an improved condition. In his opinion the threshold of personality disorder at the time of the offence had been breached. He said, "In my opinion he was likely to have a personality disorder".

[44]Dr Tomison also gave oral evidence. He did not find evidence of dependency at an earlier stage, although he accepted that on this difficult question a different opinion could be reached. Whatever view is taken on that, it did not affect his clinical opinion. When he examined the appellant in 2001, he was alive to the possibility of personality disorder. He approached the material before him and the examination on that basis. He found no significant change in the appellant's mental state between 2001 and 2005. In his view the opinion he had formed in 2001 was reinforced by the events of the subsequent five years. He accepts that diagnosis can be difficult. Clinical features can be clouded by substance abuse and a range of social circumstances. He tried to assess personality by stopping other factors coming into it. The appellant's behaviour in custody and the absence of any misuse was striking. The symptoms had, in his opinion, all but vanished. There was an absence of features which would support the existence at any time of a personality disorder. Such traits of character were imbued. It would be extremely surprising if they had disappeared in the few months between the offence and his examination late in 2001. It would be extremely unusual for that process to occur over a matter of a few months -- indeed, unheard of. It is necessary to strip out other factors such as the bad relationship. The entries in the record upon which reliance had been placed were well short of demonstrating a personality disorder. If there was a personality disorder, he would expect problems to present themselves in a protected environment such as a prison.

[45]The relationship with York had been profoundly damaging. The appellant had been subjected to considerable abuse. The features which arose were a direct consequence of that relationship. He is now in independent adulthood. Dr Tomison said that he had admiration for him in the light of the tragedies which had occurred. He had considerable sympathy for him and for the way in which he had been treated during his younger years. The doctor commented, and we record it (although it is entirely irrelevant to our consideration), that he was surprised that the tariff that had been set for a minimum custodial period was set as high as it had been. In our judgment there is no doubt about the open-mindedness of Dr Tomison's approach. He was in no way hostile to the appellant. He fully acknowledged the problems which the appellant had faced and the damage which had been done to him in the course of earlier relationships. Those have been profoundly damaging and will continue to affect him during his adult life.

[46]In cross-examination he repeated that the abnormalities said to be present would, if they existed, express themselves in custody. They may be expressed in a variety of situations. They were pervasive. Many people who have had bad childhood experiences do not develop personality disorders, though others do. He considered that he had sufficient information to have expressed the opinion he did and to believe in its correctness in 2001. There were a number of things still to be addressed to assist the appellant, but there was no personality disorder. Such disorder required a persistence of a range of problems over time and in a range of situations. They were characterised by continuity. In this case there was no continuity of such symptoms. There was a lack of pervasiveness and the appellant's condition was now good. He had been in damaging social circumstances, but the features of personality disorder, their persistence and pervasiveness in a broad range of situations, were not present.

[47]We have considered carefully the evidence which is before the court both in relation to the events of 2001 and the medical opinions expressed. Dr Tomison had the advantage, as was acknowledged, of having examined the appellant during the same year as the offence at the time of which it is now claimed on his behalf that he had diminished responsibility within the meaning of the section. We have considered the records and the evidence about the current condition of the appellant, along with the opinions on symptoms of personality disorder, and what features are present when such a disorder exists and in what circumstances. Both doctors have assisted the court carefully and in good faith. Dr Tomison's opinion has been firm throughout. It is based on an examination conducted near the time of the offence and upon examination now. He has commented upon Dr Needham-Bennet's findings, which are tentative in certain respects. Dr Needham-Bennett was prepared to acknowledge the difficult issues involved and referred to the difference in the view of thresholds and to his surprise at the improvement which has occurred if his view is correct.

[48]We have found the evidence of Dr Tomison wholly convincing. In our judgment there is no real prospect that the appellant had a personality disorder amounting to abnormality of mind at the time of the offence when he presented the personality and behaviour he did to Dr Tomison later in the same year. In our judgment subsequent history has confirmed Dr Tomison's opinion. He accepts that personality disorder may be treated and improvements may be achieved. However, we accept his conclusion that the appellant's behaviour since the offence and his present condition (which substantially is agreed between the doctors) are inconsistent with his having had a personality disorder amounting to an abnormality of mind whether of the emotionally unstable, borderline type, or of the dependent type, or a combination of both.

[49]We have regard to the absence of that continuity of the condition, that persistence and pervasiveness in a broad range of situations, which we are satisfied would be required if that diagnosis were to be accurate.

[50]We have referred to the approach which this court should take to an application for fresh evidence and to material which had been placed before. It has been considered de bene esse with a view to deciding whether it should be admitted, which depends on the test in section 23(1)(b) of the 1968 Act. There is a dimension in this case in additional to those considered in Pendleton. When making the decision, which it is our duty to do, whether the verdict is safe, the court is not considering the possible impact of fresh evidence which could have been before the jury which made the decision, along with the evidence which was in fact before it. The proposed evidence is based on an examination of the appellant several years after the jury reached their conclusion. The court needs to analyse it with a view to considering its impact on the safety of a verdict, reached on the evidence before the jury, the defence having decided, and rightly decided, on the then available evidence, not to run the defence of diminished responsibility. In our judgment, no doubt is cast upon the safety of the verdict.

[51]The above approach is consistent with the important principle that matters should be raised at a single trial. The decision as to safety must be reached before the question of retrial is considered, as also stated in Pendleton. The procedure which the court is required to adopt is not intended to give a second opportunity to deploy evidence available at the time of the trial in a different or better way and the case has not been put before us on that basis. However, even if we were to consider the impact that Dr Needham-Bennett's evidence would have at a retrial, we do not consider it to be a real possibility that it would undermine the evidence of Dr Tomison, or that the verdict would be apparent.

[52]This case has been strongly argued on the appellant's behalf by Mr Leslie and we have had an opportunity, with counsel's help, to consider the material before us. For the reasons we have given we have come to the conclusion that the evidence should not be admitted. We have come to the conclusion that the verdict is a safe verdict. Accordingly, the appeal against conviction is dismissed. _____________________________________