Erskine, R v [2009] EWCA Crim 1425

[2009] EWCA Crim 1425

Case No 2007/03621/B2 (1)

2008/00248/C4 (2)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CENTRAL CRIMINAL COURT

MR JUSTICE ROSE (1)

ON APPEAL FROM THE CROWN COURT AT LEICESTER

MR JUSTICE GOLDRING (2)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/07/2009

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE RT HON LORD JUSTICE THOMAS

THE HON MR JUSTICE TREACY

Between

RAppellant

Erskine (1)Respondent

RRespondent

Williams (2)Respondent

R- v -Erskine (1) R-v-Williams (2)

(1)

Mr Edward Fitzgerald QC and Mr Paul Taylor for Appellant

Mr Mark Ellison QC and Miss Zoe Johnson for Prosecution

Hearing Hearing date: 6 th May 2009

(2)

Mr Alun Jones QC and Miss Andrea Brown for Appellant

Miss Lynn Tayton QC and Mr J Kirk for Prosecution

Hearing Hearing date: 7 th May 2009

Judgment

The Lord Chief Justice of England and Wales:

[1]These appellants were properly convicted of murder in unconnected trialsmany years ago. They now argue that their convictions should be quashed and substituted by convictions for manslaughter on the grounds of diminished responsibility. In Erskine there was powerful evidence available at trial which would have supported the defence: in Williams there was none. Neither advanced the defence: indeed Williams pleaded guilty to murder. The question for decision is simple: in relation to each appeal, exercising the jurisdiction provided by section 23 of the Criminal Appeal Act 1968, as amended, do we think it necessary or expedient in the interests of justice to receive evidence which was not adduced at trial?

[2]This simple question has involved the preparation of a substantial bundle of authorities and extensive citation and analysis of previous decisions of this court. We imply no criticism of distinguished leading counsel. Their forensic technique has been sanctioned by this court. It has become the modern way of addressing legal principle both on appeal and in the Crown Court itself.

[3]Various factors have contributed to the process. These include the stark reality that every single judgment of this court is now available to the advocate, whether it was reserved or unreserved, whether reported or unreported. Understandably, the advocate doing his duty by his client seeks to identify each and every case which even remotely appears to bear on the principle under consideration or which has some passing factual similarity to the one with which he is immediately concerned. The development of legal argument in the criminal justice process is therefore both much more complex and, we venture to suggest, more rebarbative andless focussed than it used to be. Added to these considerations, there has been something of a convention that this court should at least mention authorities referred to by the advocate in oral submissions, and this tends to add yet one more authority to the existing compendium. And so, like Topsy, the process has grown, and lengthened, and continues to grow and lengthen without the slightest discernable improvement in the doing of justice in the individual case and to the delay and disadvantage of the administration of justice generally. What is abundantly clear is that without a fresh approach to the way in which authorities are used in the course of forensic argument the administration of criminal justice will be suffocated.

[4]We shall examine this process as it applies in these appeals after setting out the essential facts.

[5]The appeals were heard consecutively. In both cases an unusual course was taken in relation to the evidence. The taking of evidence

[6]Under s.23 (4), the Court may if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in a manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.

[7]The powers under this sub-section were used in Stafford & Luvaglio (No. 2)

(1972) 57 Cr. App. R. 203

and in Saunders

(1973) 58 Cr. App. R. 248

, but have rarely been used since then. In the present appeals, although it was clear that there were differences in the opinions of the experts, none of the differences turned on issues of credit. It was desirable to hear these two appeals together, but very difficult to find a time when all the experts and counsel were available. It was therefore proposed that the evidence of the expert psychiatrists be heard in each case by one of the judges who was to hear the appeal on separate days at a time that was convenient to those in each case. The evidence in relation to Williams was heard before Thomas LJ on 16 March 2009 and in relation to Erskine on 21 April 2009.

[8]Ahead of the hearings of the evidence, and indeed when the evidence was heard, and then again, in advance of the hearing of the argument before the Full Court on 6 and 7 May 2009, the areas of disagreement between the experts were clearly identified and then refined. At the appeal transcripts of the evidence were made available to counsel and the court. Thus the hearings took place with a much clearer focus on the evidence actually before the court and its relevance to the submissions and were comfortably concluded within two days rather than the four to five days would otherwise have been needed.

[9]Counsel in both appeals stressed the advantage to them of being able to consider the expert evidence in advance of the legal argument. They accepted that in future it would sometimes be helpful to allow an interval between the hearing of the expert evidence and the listing of an appeal, thus providing an opportunity for reflection. In appeals involving complex and lengthy expert evidence we agree that such an opportunity would be sensible.

[10]We therefore suggest that when directions are given in a case involving expert evidence that the court should consider, apart from the usual directions regarding the exchange of expert reports and a meeting of experts (under Part 33 of the Criminal Procedure Rules), whether the expert evidence should be heard on commission before one of the judges who will sit on the appeal, or whether it should be heard in advance of the legal argument by the Full Court that is to hear the appeal, or whether it should be heard immediately prior to the legal argument as part of one continuous hearing. The considerations that the court may wish to take into account will include whether any significant issues of credit are involved, the nature of the evidence, its complexity, its length, the scope of the dispute, its relative importance in the appeal and the availability of the experts.

Kenneth Erskine – the facts

[11]Kenneth Erskine (the appellant) is now 45 years old. Just over 20 years ago, on 29 January 1988, at the Central Criminal Court before Rose J and a jury he was convicted of 7 counts of murder and 1 count of attempted murder. He was sentenced to 7 concurrent terms of life imprisonment for murder, with a recommended minimum term of 40 years, and for attempted murder he was sentenced to 12 years imprisonment concurrent. This is an application for an extension of time of virtually 20 years for leave to appeal against conviction and sentence.

[12]We must begin by recording, as briefly as we may, the facts of a series of dreadful killings by the appellant of elderly people which took place during 1986.

[13]In early April 1986 a woman suffering from senile dementia, 77 years old, was killed in her own home. She was the victim of a violent attack. She died as a result of manual strangulation. The appearance of her anus was said to be consistent with intercourse or penetration while still alive, but probably unconscious at the time.

[14]In early June 1986 a woman, 68 years old, living alone in her flat, was violently attacked and manually strangled. Her injuries suggested that the appellant was kneeling on her chest while he strangled her. There was also evidence to suggest some sexual interference.

[15]On 27 June 1986, in the early hours of the morning, a man aged 73 was lying in his bed in an old people’s home when he was attacked. The appellant jumped on top of him and attempted manually to strangle him with his hands, but he was able to struggle and resist, and after about 5 minutes attempting to strangle him, the appellant suddenly desisted and left.

[16]On the next day a man, aged 81 was killed in the old people’s home where he lived. He was a victim of considerable violence and a violent sexual assault, and was killed by asphyxiation caused by manual compression of the neck.

[17]On the same date, after a violent assault, another resident in the same home, aged 94, was also asphyxiated to death by manual strangulation while the appellant was kneeling on his chest.

[18]A few days later, in early June 1986, an 82 year old man was killed in his own home. Again he was the victim of a violent attack, and he was sexually assaulted. He died as a result of manual compression and fractures of the neck.

[19]About a fortnight later, another man, aged 74 years was killed in his own home. Again, after a violent attack, he died from asphyxiation as a result of manual strangulation and the obstruction of his airways by pieces of cloth and tissue stuffed down the back of his throat. Again, the injuries to his body suggested that the appellant knelt on his chest to kill him.

[20]The last murder occurred a few days later. An 83 year old disabled and virtually blind woman, living alone in her flat, was killed, after a violent attack. She died as a result of asphyxiation caused by manual strangulation. The appellant probably knelt on her chest to strangle her.

[21]This very brief recital of the essential facts demonstrates that on its own, each one of these murders was an offence of the utmost gravity. Elderly vulnerable people were killed in their homes by an intruder who subjected them all to gratuitous violence and then manually strangled them. In five of the cases there was clear evidence that the victims were also subjected to serious sexual assault: in a sixth case the evidence was consistent with sexual assault. Taking all these offences together, this was a truly appalling series of crimes.

[22]The applicant was arrested on 31 June 1986. The evidence implicating him included fingerprint evidence from some of the homes he had entered. His behaviour in interview was bizarre. He was, as a distinguished psychiatrist put it in evidence, “all over the place”, sometimes admitting, sometimes denying, “not knowing night from day”. His solicitor was present throughout. He admitted entering the properties as a burglar, to steal, but he denied that he had either killed or attempted to kill anyone. During the first interview he appeared to the police to be “fondling his private parts”. In a later interview he was “silently laughing” and he masturbated throughout the interview. He described how voices sometimes whispered and sometimes screamed at him. He was asked what the voices told him to do, and he said they threatened to kill him. He was asked why they should do that. He replied “shadows, you know it’s the shadows you know, and it’s …at the door threatening, threatening to murder me, you know, and dizzy spells you know”. Unsurprisingly, during interviews, the police asked whether he wished to see a doctor.

[23]In due course he was committed for trial. Legal aid was granted. Leading and junior counsel were briefed to act on his behalf. His instructions to them were consistent with what he had said to the police. He was adamant that he was innocent. He was not involved in or responsible for any of the killings. He was a burglar but no more than that. He also relied on the fact that in one case there were found traces of semen which were not his. At trial he did not give evidence in his own defence. At that date no adverse inference from his failure to do so could have been drawn.

[24]In due course the judge summed the case up to the jury and the appellant was convicted. No grounds of appeal against conviction were submitted. None was available. The summing up accurately addressed the legal issues before the jury and the evidence called before them.

[25]The grounds of appeal (which have been put before us in this application referred to the Full Court by the Registrar) arise from evidence which was available but never ventilated at the appellant’s trial in 1988. We are invited to admit evidence not presented to the jury that at the date when these offences were committed the appellant was suffering from an abnormality of mind, taking the form of severe schizophrenia and psychopathic disorder. This abnormality of mind substantially reduced the appellant’s responsibility for his actions in doing the killings. There wasno contradictory evidence, although on the basis that it was a question for the jury, not all the psychiatric evidence discussed whether the appellant’s responsibility for his homicidal actions was substantially impaired.

[26]The issue has been comprehensively re-examined. The current evidence of two distinguished psychiatrists instructed on behalf of the appellant is that at the time of the killing the appellant’s mental responsibility was diminished. An equally distinguished psychiatrist for the Crown accepts that he would not have advised the prosecution to reject a plea to manslaughter on the basis of diminished responsibility. Before us the Crown agrees on balance that, if offered at trial, a plea to manslaughter on the grounds of diminished responsibility may well have been acceptable. The issue is stark. We shall examine the appellant’s mental capacity at the date of the killings and at the trial in greater detail later in the judgment. Ryan Williams – the facts

[27]Ryan Williams (the appellant) is now 30 years old. Approaching 10 years ago, on 7 December 1999, at the Crown Court at Leicester before Goldring J he pleaded guilty to the murder of Ivan Richardson. In due course, his co-accused, Christopher Osborne and Julie Richardson were convicted of the same murder by a jury.

[28]On 21 December 1999 the three defendants were sentenced to life imprisonment. In the appellant’s case the specified minimum term was 12 years. In the cases of Osborne and Richardson the specified minimum terms were 17 years and 13 years respectively.

[29]This is an appeal against conviction by leave of the single judge who granted the necessary 8 year extension of time for the purpose.

[30]In December 1998, the appellant was living in temporary accommodation for the homeless in Leicester. He became friends with Osborne and formed a relationship with Julie Richardson. Osborne was living in the same accommodation as the appellant, and Richardson was living with her father, the deceased, in council owned accommodation. The deceased had subjected her to violence.

[31]On 14 December the appellant spent the night at Julie Richardson’s home. During the night they were attacked by the deceased who struck the appellant on his head either with a rolling pin or a baseball bat. He attended hospital, where he was treated for a laceration to his scalp. Two days later, on the 16th December, the appellant and Julie Richardson returned to her home and spent the evening with the deceased, who apologised to them for his behaviour, which was almost certainly alcohol induced.

[32]On the following day Julie Richardson told the appellant and Osborne that her father had assaulted her sexually on numerous occasions. After that there was a confrontation with the deceased. The deceased was knocked to the ground, and he was then beaten, kicked and stamped on by all three of them. He was stripped, and tied up, and subjected to deliberate additional gratuitous violence. An iron was heated, and his back was burned with it. His genitalia were specifically targeted. He suffered multiple serious injuries and died shortly afterwards.

[33]Thereafter the three assailants made what were ineffectual attempts to dispose of evidence of their involvement in the killing. As part of this process a fire was started in the premises. The appellant was arrested at about midday on 19th December. After caution he made no reply. He was interviewed. Initially he maintained a denial of any involvement. However during the course of interviews he made a number of significant admissions about his role in the attack. The admissions emerged gradually, addressing the evidence as it was disclosed to him. There were three essential accounts. First, he denied presence or knowledge of the murder. Then he admitted presence but denied violence, blaming Osborne. The third account blamed Osborne but admitted to his own and Richardson’s active part in the attack. In this account he admitted punching the deceased to the floor and striking him on the ground with a stick, as well as kicking the deceased in his legs once or twice and ultimately kicking and “heeling” his genitals. He also admitted that he plugged the electric iron in so that Richardson could burn the deceased’s back, saying that the deceased was unconscious when the iron was used, although he did not know whether he was dead at the time.

[34]In due course he was committed for trial. A defence case statement was filed. The defendant denied any involvement in the attack on the deceased. Leading and junior counsel were briefed to act on his behalf at trial. When the case was listed for trial, this appellant pleaded guilty to murder.

[35]Mr Nigel Rumfitt QC on his behalf began by addressing the circumstances in which the plea was tendered. He told the court that the appellant had been determined to plead not guilty on the basis that when he participated in the attack on the deceased he had not intended to kill him. It was explained that it was sufficient if he intended that really serious injury should be caused. Subsequently, as counsel described the matter in open court, the appellant “admitted doing precisely that”. He asked leading counsel and his instructing solicitor to visit him in custody. He then gave instructions which were “entirely consistent with the present plea”. Before doing so, however, his leading counsel told him that he should not enter a guilty plea until every other possible avenue, “in particular getting psychiatric reports to make sure he had no medical defence” had been explored. That was done. The medical evidence excluded the possibility. After discussing the matter with his legal advisers, and indeed with his mother, the appellant decided to plead guilty, signing a document which made it clear that this was his own personal decision.

[36]In mitigation counsel addressed the issue of the very severe headinjury received by the appellant in a road traffic accident when he was 12 years old, and it’s continuing consequences and effect. He referred to the appellant’s intoxication at the time of the violence, and the impact on him of Richardson describing how she had been sexually as well as physically abused by her father.

[37]The judge postponed sentence until the conclusion of the trial of the other defendants. We have not been provided with a transcript of his sentencing remarks. It seems clear, however, that the assessment of the minimum term to be served by the appellant made due allowance for the mitigation to be derived from his guilty plea.

[38]No grounds of appeal against conviction or sentence were submitted until the present proceedings, seeking leave to appeal out of time against conviction. Fresh Evidence – the statutory jurisdiction

[39]The jurisdiction to admit fresh evidence is governed by statute. Section 23 of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995 provides:

“(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice – … (c) receive any evidence which was not adduced in the proceedings from which the appeal lies (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the court to be capable of belief; (b) whether it appeals to the court that the evidence may afford any ground for allowing the appeal (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject to the appeal; (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

Virtually by definition, the decision whether to admit fresh evidence is case and fact specific. The discretion to receive fresh evidence is a wide one focussing on the interests of justice. The considerations listed in sub-section (2)(a) – (d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the “interests of justice” test will be satisfied. The cases included in the bundles of authorities

[40]As we have seen the statutory framework is uncomplicated. The question for decision identified in paragraph 1 of this judgment is stark. In this section of the judgment we shall illustrate the way in which a series of decisions of the court addressing this stark question in individual cases appear to have developed a jurisprudential momentum of their own. It is a process which has become commonplace in many different areas of the criminal law.

[41]The first authority provided was R v Kooken

(1982) 74 Cr App R 30

. This court considered and quoted the essential reasoning in Dodd June 10 1971 (unreported) and Melville

(1976) 62 Cr App R 100

. The court doubted whether the trial judge had any discretion to call evidence to support a possible defence of diminished responsibility which the defendant herself did not wish to advance. The suggestion that, pursuant to section 23 (1) of the Criminal Appeal Act 1968, it was “necessary or expedient in the interests of justice” for the medical evidence supporting diminished responsibility to be called as fresh evidence when, notwithstanding that the applicant was not “mentally sound” she did not wish any such argument to be advanced was rejected. Although she was not mentally sound and her power to reach the right decision in her own interests was diminished, she was not unfit to plead. Her objection to the admission of the evidence was “invincible”. The application was dismissed. The observation that whether convicted of murder or manslaughter on the grounds of diminished responsibility, the applicant would continue to be detained in Broadmoor, was incidental to the refusal of the application for permission to appeal, and would not have led to its refusal if it would otherwise been appropriate to grant it.

[42]In R v Campbell (No1)

(1987) 84 Cr App R 255

it was again emphasised that diminished responsibility is an optional defence, to be advanced, if he so wishes, by the defendant. The principle now encapsulated in R v Coutts

[2007] 1 Cr App R 60

, that any available defence should be left to the jury for its consideration, had no application to diminished responsibility. Some 10 years later Campbell was again before the Court of Appeal, when, as we shall see, it took a different turn.

[43]R v Straw

[1995] 1 All ER 187

was decided in June 1987. So, although reported in 1995, it is chronologically the next authority requiring consideration. It was common ground between the psychiatric experts that at the time when the applicant killed her husband, her responsibility was materially diminished. The prosecution were prepared to accept a plea of guilty to manslaughter on this ground. The applicant refused to tender such a plea and gave express instructions that she would plead not guilty. After conviction she wished diminished responsibility to be reconsidered. Her application to introduce fresh evidence was dismissed. The court referred to the decisions in Dodd, Kooken and Melville. The applicant was “sufficiently capable” of tendering her plea and fully advised as to her position. “Although she may not have been a normal person, she was capable in law of making the decision”. In reality this decision added nothing to the principle identified in Kooken, and its absence from any formal law report for the next 8 years did not represent a significant gap in the relevant jurisprudence.

[44]In R v Ahluwalia

[1993] 96 Cr App R 133

diminished responsibility was not raised at trial. The principle that “ordinarily, of course, any available defence should be advanced at trial,” and that if medical evidence to support such a plea was available, it should be adduced at trial, was emphasised. Defendants were not permitted to run a defence at trial in the belief that after conviction, the court would allow a different defence to be raised. However evidence which would have supported diminished responsibility and was available at trial was “overlooked” and not “further pursued” at trial. The appellant herself “was not consulted” and she did not, in any real sense, decide that the defence should not be advanced. This judgment underlined the scepticism with which evidence to support diminished responsibility based on “wholly retrospective medical evidence” would be approached. However the evidence was admitted because the decision not to advance the defence was not made by the appellant.

[45]In R v Arnold (1996) 31 B.M.L.R. 24, following the appellant’s conviction of two murders in 1987, the court addressed evidence of diminished responsibility. The court considered and quoted extracts from the judgments in Dodd, Melville, Ahluwalia, and Richardson (9 May 1991, unreported) and referred to the decisions in Kooken and Campbell (No 1), and decided that evidence which would have supported diminished responsibility should not be admitted. Psychiatric evidence was available at trial which would have supported the defence. Fresh psychiatric evidence confirmed the availability of the defence. All this, was, however, was subject to the defendant establishing a proper factual basis for the defence. Without that evidence from the appellant, who at trial denied any involvement in the killing, the fresh evidence should not be admitted. The court took the opportunity to doubt the correctness of observations in Dodd, repeated in Melville, that to be admitted on appealthe evidence that the appellant was subject to diminished responsibility should be “really overwhelming”. However it was emphasised that “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 the appellate court based on different evidence…However, very exceptionally, these considerations can be treated as not conclusive”.

[46]We must now return to R v Campbell

[1997] 1 Cr App R 199

. Noting that at the time of the trial there was clear evidence that the appellant suffered from an abnormality of mind at the time of the killing, and on the basis that medical science in the intervening period had advanced, the court admitted further psychiatric evidence. A defence of diminished responsibility, if advanced at trial on the basis of the evidence then before the Court of Appeal, might well have succeeded. The evidence was admitted, and the conviction quashed. The court addressed the principle “repeatedly underlined” that in criminal trials the defendants must “advance a 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 that defence on appeal”. The court was influenced by the fact that the absence of a defence of diminished responsibility at trial was not what was described as “a matter of tactical decision” but one of “practical necessity” because there was no expert evidence to support the defence. Save to record the earlier conclusion in Campbell (No 1), no reference was made to earlier authorities or previous decisions. The application was to be judged exclusively by reference to what the interests of justice required “in all the circumstances”. This judgment demonstrates that justice can be done without the need for any learned parade of jurisprudence.

[47]In R v Borthwick [1998] Crim LR 274 on appeal there was clear and undisputed evidence, unknown at trial which demonstrated diminished responsibility. Prior to the trial the appellant had been examined by a psychiatrist, but he refused to allow a more detailed examination to be undertaken and pleaded not guilty on the basis that he denied responsibility for the killing. He was convicted. Shortly afterwards he admitted that he was responsible for the homicide. The court was concerned that B’s state of mind may have reduced his ability to give rational instructions about his defence. Repeating Melville and Campbell (No 2) the court held that there was “overwhelming” or “clear evidence” that the defence of diminished responsibility would have succeeded at trial, and that the reason why the defence had not been advanced was itself consequent on the mental illness of the defendant. In other words, as the telling commentary in the Criminal Law Review by Dr David Ormerod put it “…D’s mental illness may have affected his judgment to the extent that it could not be said that he was exercising an option not to run the defence at trial…”.

[48]In R v Gilfillan, 7 December 1998 (unreported), the defendant did not advance diminished responsibility at trial. He gave no instructions which would have supported the defence and, because he made no relevant disclosure to the medical experts, there was no medical evidence which would have supported the defence. Accordingly it was not “fully explored” before the trial. After the appellant’s conviction, new facts emerged which supported diminished responsibility. The explanation for the failure to advance the defence at trial was “to be found in the very mental condition” of the defendant himself. He was “fearful of the possible consequences of a finding that he was mentally ill, and, more importantly, did not consider that he was”. The true state of his mental condition was concealed from his professional advisers as well as his parents. The Crown did not oppose the admission of the evidence.

[49]In R v Weekes

[1999] 2 Cr App R 520

the defendant refused to follow advice that it would be in his best interests to plead guilty to manslaughter on the basis of diminished responsibility. There was powerful evidence to support it. Instead he suggested that he had acted in self-defence and under provocation. These defences were rejected by the jury. He appealed against conviction, seeking leave to adduce the medical evidence which was available at trial together with further psychiatric evidence that his ability to make a sensible judgment whether to advance diminished responsibility would have been adversely affected by his mental illness. Accordingly his decision not to advance diminished responsibility could not be treated as a “reasoned decision”. The case was particularly stark because the prosecution would have accepted a plea to manslaughter on the basis of diminished responsibility, and so indicated to the appellant’s counsel. As it happened this was Mr Nigel Rumfitt QC, counsel for Williams in the present case. The appeal was heard on 8th February 1999, shortly before Williams’ conviction in this case. On that occasion counsel had plainly given detailed and meticulous advice on the issue to Weekes. We have no doubt that the same robust, clear thinking approach was adopted by Mr Rumfitt when he was acting for Williams.

[50]In the judgment Dodd and Melville were re-examined. Attention was drawn to Straw

[1995] 1 All ER 187

and Steven (Jones)

[1997] 1 Cr App R 86

as well as Borthwick. Shah 30 April 1998, (unreported) was analysed in some detail. The passages quoted from the judgment in Shah referred to Ahluwalia, and the passages cited from Straw referred to Kooken. In Weekes the essential fact was the “plain and undisputed” evidence at trial that the defendant’s decision not to allow diminished responsibility “to be canvassed” was significantly affected by his mental illness. The court would have been much less impressed with the argument if the evidence in support of diminished responsibility only emerged after the trial. However the court’s unequivocal conclusion was that “in the last analysis as appears from all these decisions each case turned on its own facts”.

[51]R v Criminal Cases Review Commission ex parte Pearson

[2000] 1 Cr App R 141

, involved an application for judicial review of a decision by the Criminal Cases Review Commission not to refer the applicant’s conviction for murder to this court. The Commission decided that the evidence of diminished responsibility on which the applicant was seeking to rely would not be admitted in evidence under section 23 of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995. Lord Bingham CJ noted that the Commission and the court were referred to a number of earlier decisions. These included Dodd and Melville, which were set out in detail in his judgment. He referred to Straw, and Richardson, again quoting passages from the judgments. He addressed the reasoning in Ahluwalia, Binning (unreported April 12 1995)and Arnold, again in detail, and concluded that the unreported decision in Arnold contained the “fullest and clearest judicial consideration” of the court’s approach to the issues which arise here. The judgment then examined Steven Jones and Campbell, in the context both of the 1987 and 1997 decisions, and then Borthwick, Hobson and Shah and finally Weekes.

[52]This examination of the previous decisions could not have been more comprehensive. Lord Bingham suggested that the cases identified a number of features which would be likely “to weigh more or less heavily against the reception of fresh evidence”. These included “a deliberate decision by a defendant whose decision-making faculties are unimpaired not to advance before the trial jury a defence known to be available; evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence; expert evidence based on factual premises which are unsubstantiated, unreliable or false, or which is for any other reason unpersuasive”. In the ultimate analysis the jurisdiction under section 23 of the 1968 Act provides the means by which justice can be done in the individual case. The end result, and the principle to be extracted from it, is that the statutory discretion could not be constrained by “inflexible mechanistic rules”.

[53]Next in the bundles of authorities is R v Martin

[2002] 1 Cr App R 323

. There was no medical evidence at trial to support diminished responsibility. Indeed the evidence on the issue was said to be “negative”. After conviction two new experts were instructed on behalf of the appellant. This was credible evidence, not available at trial, and the court decided that the evidence should be admitted. The conviction was quashed. Although the case was and to some extent remains notorious, the court did not decide any issue of legal principle in relation to diminished responsibility. The case can only have been reported for reasons unconnected with this defence.

[54]R v Gilbert

[2003] EWCA 2385

arose from another much earlier murder conviction in 1994. The court was invited by the Criminal Cases Review Commission, to consider fresh evidence relating to diminished responsibility. The court referred to Dodd, Melville, Steven Jones, Gilfillan, Straw, Ahluwalia, both Campbell decisions, Borthwick, Shah and Weekes. After these references to the earlier decisions, the conclusion was that when diminished responsibility was not raised at the trial, it would only be in an “exceptional case that the court will hold that a reasonable explanation for the failure to adduce the evidence in the proceedings has been demonstrated”. However, even in the absence of some reasonable explanation for this failure, the court was still obliged to consider whether it was “necessary or expedient” to receive the evidence in the interests of justice. The court admitted the evidence. At the hearing of the appeal in the following year, the conviction was upheld. – see

[2004] EWCA 2413

. Neither decision was reported. We are unsurprised: no issues of principle were raised.

[55]R v Hendy

[2006] 2 Cr App R 33

was decided in April 2006. In 1993 the appellant was convicted of murder. The essential issue examined in the judgment was the impact of R v Dietschmann

[2003] 2 Cr App R 4

in the context of self induced intoxication. The conviction was quashed on the grounds of misdirection. The court also addressed the ground of appeal based on fresh medical evidence “obtained retrospectively”. The court considered the review of the authorities carried out in Gilbert, and decided that notwithstanding the reluctance of the court to admit evidence to support a defence which was not raised at trial, and the necessary scepticism with which to approach fresh evidence of diminished responsibility where the issue was canvassed at trial, the evidence should be admitted. This plainly was a factual decision based on the court’s judgment of the interests of justice.

[56]R v Neaven

[2006] EWCA Crim 955

[2007] 2 All ER 891

, [2006] Crim LR 909 was decided in May 2006. In 2001, the appellant was convicted of murder. Unknown to himself or his legal advisers, at the time of the offence his responsibility for his actions was diminished. Fresh evidence substantiated that contention. The Crown’s position was that the decision not to advance diminished responsibility, but to rely on self-defence, was a tactical decision. The appellant was offered the opportunity of a medical assessment and declined. This was said to be a form of “shut-eye knowledge” of what the assessment would or might reveal. It was not however contended that the appellant or his legal advisers knew or ought to have known of the schizophrenia from which he was suffering.

[57]The court examined the “relevant jurisprudence”. Extracts from Dodd, Kooken, Straw, Ahluwalia, Borthwick, Shah and Weekes were set out in the judgment. The court then summarised the “guidance” to be derived from the authorities. “(1) That the obligation on a defendant to advance his whole case at trial and the scepticism directed towards tactical decision remains fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interests 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. (4) Therefore 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 advice of tactical decision is met by undisputed evidence that such decisions were affected by the defendant’s illness itself. (6) The emergence 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. From this connection it may be observed that only in the special case of Kooken was clear and undisputed fresh evidence on appeal of a good defence of diminished responsibility to the killing not acted upon in this court.”

[58]The court then addressed two further factors which were said not to have arisen in the earlier cases cited to the court. “The first is that, although the evidence of diminished responsibility is common ground, it was unknown at the time of the trial. The second is that, although there is evidence both that his mental illness and his ignorance of his illness affected the appellant’s decision making at trial, that evidence is not undisputed”. “In principle, knowledge of a defendant’s mental illness and its effect on him for the purposes of his defence should make it very difficult to introduce such evidence for the first time on appeal …even so, where the illness also affects the ability to give rational instructions, the interests of justice may still require a different result”. The appeal was allowed because it could not be said that the appellant or his legal advisers had “made a tactical decision with knowledge or insight which should be considered to bind him”. In short the ultimate decision was a factual decision based on all the subtleties and nuances of the individual case. The case did indeed turn on its own facts.

[59]In Latus

[2006] EWCA Crim 3187

the applicant for leave to appeal was convicted of murder. Diminished responsibility was not advanced at trial. Later evidence suggested that at the time of the offence he was suffering from diminished responsibility. The court considered Borthwick, Ahluwalia, Straw and the guidance in Neaven. The application was refused. No reasonable explanation was given for the failure to introduce the evidence at trial. The decision not to do so was a deliberate tactical decision made by an appellant who “hoped to get away” with his crime, and denied involvement in. The decision was not caused by the illness but by a tactical decision not to allow the defence of diminished responsibility to be investigated. No point of principle was involved.

[60]In Diamond

[2008] EWCA Crim 923

[2008] MHLR 124 the appellant was convicted of murder in 1999. There was an extensive pre-trial psychiatric history. However before trial he refused to undergo a medical assessment into the possibility that he was suffering from mental illness as well as personality disorder. Instead he advanced a defence that he had not committed the murder, and he sought to provide an innocent explanation for the powerful evidence linking him to the crime. By the time the case was referred to the Criminal Cases Review Commission, he admitted his responsibility for the homicide. There was said to be strong evidence that at the time of the killing his responsibility for his actions was substantially impaired by abnormality of mind and that when he was giving instructions to his legal advisers for the purposes of the trial his mental capacity was significantly impaired by mental illness at the time

[61]The court examined the relevant guidance. After repeating the fundamental principle “that a defendant must advance all aspects of his case at trial and the court will not admit fresh evidence to enable a defendant to run a different case if that case could have been run first time round”, a proposition sustained by reference to Ahluwalia and Shah, the judgment then examined a “series of cases” which were said to provide guidance about the principles which should govern the exercise of the court’s discretion to admit evidence under section 23 of the 1968 Act where diminished responsibility was not advanced at trial. These were “very helpfully and clearly stated in R v Neaven”. The court then referred to a number of specific features relevant to the case of Diamond itself, which were derived from Straw, Kooken, Shah, Borthwick, Gilfillan, Hadan

[2003] EWCA 284

and Ashton

[2006] EWCA Crim 1267

, as well as Weekes and Ahluwalia, Sharp

[2003] EWCA Crim 3870

, Shickle

[2005] EWCA Crim 181

and Latus . Reference was also made to Lord Bingham’s observation in R v Criminal Cases Review Commission that “the more unpromising the context from which the appellant seeks to adduce fresh evidence, the more compelling the evidence would have to be (all things being equal) before the Court of Appeal would receive it”. In the end, the emphasis was that “each case will depend upon its own facts”.

[62]The court concluded that the appellant’s decision not to advance diminished responsibility was a tactical decision made at trial which was not materially connected with the appellant’s mental condition at the time. Accordingly there was no reasonable explanation for the failure to adduce the evidence which would have supporteddiminished responsibility. The appeal was dismissed.

The citation of authority

[63]The practice of lengthy citation of authority has arisen because this court, explaining the reasons for the exercise of its powers under section 23 of the 1968 Act in an individual case, has frequently made reference to its previous decisions, no doubt because it was referred to them. As our review demonstrates, what might be termed “a line of authorities” has developed. This is neither necessary nor desirable. The principles for the exercise of the statutory power are set out in the statute. No further elaboration is necessary. Each case depends upon the application of the powers as set out in the statute in the context of specific facts in the individual case, no more and no less. Examples rarely assist, and some 40 years after its enactment, the essential framework and the over-arching test contained in section 23(1) (after due consideration of the factors identified in section 23(2)), should be well understood without recourse to previous decisions of the court which do no more than evidence the application of those provisions to factual situations.

[64]Although each of the cases referred to in this present judgment was included in the bundles of authorities with which we were provided in one or other or both of these appeals, yet, as we have seen, some of them were unreported, and others were reported because they threw light on issues other than diminished responsibility. Time and time again the court has endeavoured to summarise the guidance given by the earlier decisions yet each of these cases has emphasised the fact specific nature of the decision whether to admit evidence under section 23 of the 1968 Act, and somehow or other, notwithstanding the repeated attempts to provide comprehensive guidance, time and time again the court has been invited to and has traversed many, and sometimes all of the previous decisions. This process can no longer be justified.

[65]The problem is not new: it is just getting worse.

[66]In 1863, WTS Daniel QC, who led the movement which resulted in the founding of the official Law Reports, set out in a letter to the Solicitor General, the problems of expense, prolixity, delay and imperfection in the then system of law reporting that then existed. He continued:

“To these I would add a further evil…. That of reporting cases indiscriminately without reference to their fitness or usefulness as precedents, merely because, having been reported by rivals, the omission of them might prejudice circulation and consequently diminish profit.”

Nathaniel Lindley (later Master of the Rolls) in a supporting paper expressing the view of the Chancery Bar suggested that the cases to be reported were:

“1. All cases which introduce, or appear, to introduce a new principle or a new rule. 2 All cases which materially modify an existing principle or rule 3 All cases which settle or materially tend to settle a question upon which the law is doubtful. 4 All cases which for any reason are peculiarly instructive”

. He urged that there should be excluded:

“Those cases which are substantially repetitions of what is reported already”

[67]These guidelines were those which the official Law Reports published by the Incorporated Council of Law Reporting have endeavoured to follow.

[68]In 1939, concern expressed as to the increase in the number of law reports led to the establishment of a Committee under Simonds J which reported to the Lord Chancellor in 1940. Among the topics it considered was the suggestion that too many cases were reported. It referred to the difficulty in deciding what should be reported, but rejected a suggestion that cases which had not been reported in the official reports should not be cited. Professor Goodhart’s dissenting report recommended that all judgments should be transcribed, indexed and held centrally.

[69]In 1977, Lord Diplock spoke of the “superfluity of citation” and followed up his concerns in Lambert v Lewis

[1982] AC 225

at 274 where he observed :

“…the respect which under the common law is paid to precedent makes it tempting to the appellate advocate to cite a plethora of authorities which do no more than illustrate the application to particular facts of a well-established principle of law that has been clearly stated …in those cases that are no more than illustrative, however, there are likely to be found judicial statements of principle that do not follow the precise language in which the principle is expressed…, but use some paraphrase of it that the judge thinks is specially apt to explain its application to the facts of a particular case. The citation of a plethora or illustrative authorities, apart from being time and cost-consuming, present the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase”

. Lord Roskill made the same point in Pioneer Shipping v B.T.P. Trioxide

[1982] AC 724

at 751, where he stated:

“I hope I shall not be thought discourteous or unappreciative of the industry involved in the preparation of counsel’s arguments if I say that today massive citation of authority in cases where the relevant legal principles have been clearly and authoritatively determined is of little or no assistance, and should be firmly discouraged.”

The consequence was lengthened hearings and increased costs “without in any way leading to the avoidance of judicial error”.

[70]In Roberts Petroleum Limited v Bernard Kenny Limited (In liquidation)

[1983] 2 AC 192

at 201, and with the enthusiastic support of each member of the House, Lord Diplock identified the nature of the problem in yet greater detail, and imposed significant limits on the deployment of unreported judgments of the Court of Appeal (Civil Division) before the House of Lords. There was some criticism of this approach. Alternative suggestions, such as allowing a case to be citable only if the court directed that it was citable were made. There was no consensus. Nevertheless in 1996, the Court of Appeal Civil Division laid down a similar rule to that in Roberts Petroleum in its Practice Direction (Court of Appeal: Authorities)

[1996] 1 WLR 854

[71]Undoubtedly the problem of excessive citation of authority grew with the ready availability on the internet of most High Court and all Court of Appeal decisions. In Michaels and another v Taylor Woodrow Development Limited and others

[2001] Ch 493

, Laddie J pointed out that “…the recent growth of computerised databases has made it an even more frequent and extensive occurrence. There are now significantly more judges, more cases and more databases than there were even two decades ago. Until comparatively recently, this was not a substantial problem…now there is no pre-selection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed…it seems to me that the common law system, which places such reliance on judicial authority, stands the risk of being swamped by a torrent of material…”

[72]After consideration of the issue and consultation, a further Practice Direction was issued in relation to all civil courts: Practice Direction (Citation of Authority)

[2001] 1 WLR 1001

. It did not appear to have solved the problem. Moreover, in any event, it did not apply to criminal courts.

[73]Speaking extra judicially at the First Symposium on Law Reporting, Legal Information and Electronic Media in the New Millennium in March 2000, Lord Bingham, then Lord Chief Justice, observed “The quick, effortless and relatively inexpensive availability of vast new swathes of material hitherto inaccessible, unorganised, unfiltered, unedited, presents a very real risk to the system which may…simply succumb to the weight of the materials presented. ”

[74]There is no doubting the problem. It is not confined to this particular type of case, but is a feature of all types of appeal against convictionand sentence. Repeating that we imply no criticism of counsel in either case, these appeals illustrate it. The question is whether this judgment will merely be one more plaintive lament against what has become an irreversible process, or whether action should be taken to avoid the impending crisis identified by Lord Bingham. If that is the choice, the answer is self-evident. We must do more than complain. Even if, long term, this issue must be examined again and the various differing views considered, there can be little doubt that firm measures are immediately required, at least in this court, to ensure that appeals can be heard without an excessive citation of or reference to many of its earlier, largely factual decisions.

[75]The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.

[76]It follows that when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either(a) illustrate the principle or

(b) restate it. Detailed rules are set out in paragraphs II.17 and II.19 of the Consolidated Criminal Practice Direction.

[77]II.17 specifies the requirements for skeleton arguments and paragraph II.19 incorporates the detailed provisions relating to the citation of authority in the Court of Appeal (Civil Division). We propose to highlight the most significant features. Conviction Appeals

[78]Advocates must expect to be required to justify the citation of each authority relied on or included in the bundle. The court is most unlikely to be prepared to look at an authority which does no more than illustrate or restate an established proposition.

[79]It is good practice for advocates on each side to agree a list of relevant authorities and prepare a joint bundle. If authorities are copied for the use of the court, they must(a) be copied from the principal law report in which the case appears, with headnote: and

(b) have marked by sidelining the passage(s) relied on. Authorities should only be copied if they do in fact identify or represent a principle or the development of a principle. Sentence

[80]Advocates must expect to be required to justify the citation of any authority. In particular where a definitive Sentencing Guidelines Council guideline is available there will rarely be any advantage in citing an authority reached before the issue of the guideline, and authorities after its issue which do not refer to it will rarely be of assistance. In any event, where the authority does no more than uphold a sentence imposed at the Crown Court, the advocate must be ready to explain how it can assist the court to decide that a sentence is manifestly excessive or wrong in principle.

[81]If authorities are reported in the Criminal Appeal (Sentencing) Reports, that reference should be given. If authorities are copied for the use of the court, they must(a) be copied from the principal law report in which the case appears, with headnote: and

(b) have marked by sidelining the passage(s) relied on. Authorities should only be copied if they do in fact identify or represent a principle or the a development of a principle. Fitness to Plead

[82]In the present context notwithstanding the forensic difficulty of raising mutually inconsistent defences which involve denial of involvement in the killing on one hand, and diminished responsibility for the killing on the other, the trial process demands that the defendant, no doubt after considering legal advice, must decide which defence to advance. In an ideal world, of course, if he were responsible for the killing, he would admit it. But even if he is responsible, he may, and often does, choose to plead not guilty. What he cannot do is to advance such a defence and then, after conviction, seek to appeal in order to advance an alternative defence, such as diminished responsibility. There is one trial, and that trial must address all relevant issues relating to guilt and innocence. Once convicted by the jury, he is guilty of the murder he has denied committing. The defence suggestion that he is not guilty has been rejected, and he has elected not to advance diminished responsibility. If he pleads guilty to murder, he has ignored the opportunity available to him to advance diminished responsibility as a defence. The trial process is concluded.

[83]We are therefore dealing with rare occasions when it will be contended that fresh evidence shows that the appellant’s responsibility at the time of the killing was indeed sufficiently diminished to fall within the terms of section 2 of the Homicide Act and that there is a persuasive reason why the defence was not advanced at trial. It is inevitable that in these rare cases that consideration by the court of applications to adduce fresh evidence will be distressing for all involved, particularly the family of the deceased, but where there is a persuasive reason it was not adduced at trial, the need to do justice requires this.

[84]In this context we must address what appears to be a new but increasing tendency in this class of case for the appellant to advance fresh evidence, not merely to support the defence, but to suggest further, that at the time of the trial, he was either unfit to plead, or virtually so. This is said to provide the necessary explanation for the failure to advance diminished responsibility at trial.

[85]The issue of a defendant’s fitness to plead is concerned with his mental state not at the moment of the killing, but at the time of the trial. The process is now governed by the Criminal Procedure (Insanity) Act 1964, as amended in 1991 and 2004. However the principles for determining whether he was fit to plead are those of the common law, set out in 1835 in R v Pritchard (1835) 7 C and P 303 by Alderson B. These principles were said in R v Podola

[1960] 1 QB 325

to be “firmly embodied in our law”. Ignoring for present purposes problems which may arise where the defendant is “mute of malice” or physically incapable of pleading to the indictment, the question is whether:

“He is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence – to know that he might challenge (the jurors) to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation, upon this issue, therefore, if you think that there is no certain mode of communicating details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind.”

[86]In Podola further assistance was given about the meaning of “make a proper defence” and “comprehend” in the context in which Alderson B. was using them. Lord Parker CJ explained:

“As to the word “comprehend”, we do not think that this word goes further in meaning than the word “understand”

. In our judgment the direction…is not intended to cover and does not cover a case where the prisoner can plead to the indictment and has the physical and mental capacity to know that he has the right of challenge and to understand the case as it proceeds.”

[87]The issue may be raised by either the prosecution or the defence, and, to ensure that a weak prosecution case may be examined and if appropriate dismissed, the court can postpone consideration of the question at any time up to and including the close of the prosecution’s case. In 1988 when Erskine was tried, the consequences for a defendant successfully raising the issue were twofold. First it meant that the defendant would be unable to advance a defence of his own, and second, he was to be detained in hospital, indefinitely. In practice this issue is still rarely raised, although the number of cases rose after the statutory amendments made in 1991: see Continued upturn in unfitness to plead- more disability in relation to the trial under the 1991 Act [2007] Crim LR 530.

[88]It is obviously desirable, and in accordance with principle, not least the operation of the defendant’s personal autonomy, that if it is humanly possible, the defendant should tender his own plea and advance such defence as he wishes to advance, and that he should not be shut out from doing so on the grounds of unfitness. Provided the defendant can understand the proceedings, he will be deemed fit to plead. It is clear from the authorities that the test for fitness to plead is very different from the test applied to determine a defendant’s mental responsibility for his actions at the time of the killing. The test applies even if the defendant may act against what appears to others to be his own best interest. (R v Robertson

(1968) 52 Cr App R 690

.) and even if he is “highly abnormal” at the time of trial it does not follow that he was incapable of “following a trial or giving evidence or instructing counsel and so on”. (R v Berry

(1970) 66 Cr App R 156

). In other words, a defendant is not to be deemed unfit to plead merely because he will not accept what appears to be eminently sensible advice from his legal advisers. It is therefore for him, not his legal advisers or the court, to decide at the time of the trial whether to advance a plea of guilty to manslaughter on the grounds of diminished responsibility.

[89]Assuming that the defendant is legally represented (and in cases like these, he will normally be represented by leading and junior counsel, as well as solicitors) his legal representatives are the persons best placed to decide whether to raise the issue of fitness to plead, and indeed to seek medical assistance to resolve the problem. There is a separate and distinct judicial responsibility to oversee the process so that if there is any question of the defendant’s fitness to plead, the judge can raise it directly with his legal advisers. Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead, or close to being unfit or that his decision to deny the offence and not advance diminished responsibility can properly be explained on this basis. The situation is, of course, different if, as in Erskine, serious questions about his fitness to plead were raised in writing or expressly before the judge at the trial. Diminished Responsibility

[90]Subject to these broad considerations, where it is proposed to raise diminished responsibility for the first time on appeal, the court is examining the appellant’s mental state at the time of the killing in accordance with section 2 of the Homicide Act 1957. It should normally be necessary to refer the court to no more than the terms of s.23 of the 1968 Act, and the approach suggested in R v Criminal Cases Review Commission Ex Parte Pearson

[2000] 1 Cr App R 141

at page 164:

“Wisely and correctly, the courts have recognised that the statutory discretion conferred by section 23 cannot be constrained by inflexible, mechanistic rules. But the cases do identify certain features which are likely to weigh more or less heavily against the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision-making faculties are unimpaired not to advance before the trial jury a defence known to be available; evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence; expert evidence based on factual premises which are unsubstantiated, unreliable or false, or which is for any other reason unpersuasive. But even features such as these need not be conclusive objections in every case. The overriding discretion conferred on the Court enables it to ensure that, in the last resort, defendants are sentenced for the crimes they have committed and not for psychological failings to which they may be subject.”

[91]If reference to earlier decisions or historical analysis happens to be required, the present judgment, where the vast majority of all the relevant decisions have been collected, will normally suffice. We emphasise that the provisions of s.23 do not require any further judicial exegesis; the court will positively discourage references to previous decisions which exemplify but do not alter the principles identified by Lord Bingham in Pearson.

[92]The court will normally expect the parties to provide a detailed analysis of the facts to assist it in the application of the statutory test, including an analysis of the following: i) The psychiatric and/or psychological evidence or other information in relation to the appellant’s mental state which was available at the time of trial. ii) The evidence which has become available since the trial, and an explanation why it was not available at trial. iii) The circumstances in which the appellant sought to raise on the appeal(a) the evidence available at the time of the trial and

(b) evidence that has become available since the trial iv) The reason why such evidence or information as was available at the time of the trial was not adduced or relied on at trial. This will ordinarily include details of the advice given, the reasons for the appellant’s decision at trial and, subject to paragraph …, any relevant evidence of the mental condition in the period leading up to and at the time of the trial and its impact on his decision making capacity. v) The impact of the fresh evidence on the issues argued at trial and whether and the extent to which it involves a re-arguing of issues considered at trial. vi) The extent to which the opinions of the experts are agreed and where they are not.

[93]These heads of analysis will not all necessarily apply in every case; in some cases additional areas of analysis may be required. However, any such analysis should suffice to assist and inform the court in its task of applying the provisions of s.23 (1) of the 1968 Act.

[94]We have examined all the material relating to the issues raised in these appeals. We shall set them out in annexes to this judgment. Conclusion - Erskine

[95]This is a straightforward case. It is overwhelmingly clear that at the time when the appellant appeared at trial, there was unequivocal contemporaneous evidence that his mental responsibility for his actions at the time of the killing was substantially impaired. In addition, there was contemporaneous evidence which suggested that as a result of reduced mental acuity, not amounting to unfitness to plead, but part and parcel of his illness, the decision not to advance the defence was irremediably flawed. There was nothing his legal advisers could do about it, and in reality nothing he could do about it himself. The interests of justice require us to admit the fresh evidence. We have examined it with care. We are satisfied that the convictions for murder were unsafe. We shall substitute convictions of manslaughter on the grounds of diminished responsibility. Sentence - Erskine

[96]Mr Edward Fitzgerald QC suggested that following a conviction for manslaughter on the grounds of diminished responsibility the principle or convention had been established that a sentence of imprisonment for life should not be imposed, but that the appropriate course would be to make a hospital order under section 37 of the Mental Health Act to which a restriction on release under section 41 should be attached. We disagree. To begin with, it is not unknown for a successful defence of diminished responsibility to be advanced by an individual whose mental state at the date of sentence was not so subject and who represented and continues to represent a considerable danger to public safety. In other words, no medical disposal would be available and, simultaneously, the danger to public safety was undiminished. In any event, however, even if medical evidence were available to support a hospital order, a sentence of life imprisonment may nevertheless be appropriate. In making these decisions the court will no doubt be influenced not only by the considerations of long-term public safety, but also the nature of the homicide or homicides, and the circumstances in which they were committed, and the extent to which the defendant’s mental responsibility for his actions was diminished. In some of these cases a significant element of responsibility remains, an aspect which was recently addressed in R v Woods

[2009] EWCA Crim 651

. We need not address the point further because in the present case we are in effect reflecting on the appropriate sentence for manslaughter on grounds of diminished responsibility over 20 years after conviction, and 20 years or so after the appellant was removed from prison into a maximum security hospital where he has remained ever since. We cannot ignore these realities. The medical evidence is clear. For present purposes we remind ourselves of Dr Chesterman’s conclusion that “…it would not be appropriate to consider releasing him into the community for the foreseeable future given that the risk of further similar re-offending cannot be regarded as insignificant”. It is Dr Horne’s view that if a hospital order were now to replace the order of life imprisonment, it should be subjected to appropriate statutory restrictions on any possible release under section 41.

[97]Subject to the oral evidence required for these purposes, we shall make a hospital order, and in the interests of public safety, we shall attach a restriction for an indefinite period under section 41. Conclusion - Williams

[98]This is a very different appeal to Erskine. The issue of a possible defence of diminished responsibility was closely examined before the appellant chose to plead guilty to murder. The plea was a deliberate and properly informed decision. Although the issue was carefully examined, nothing was revealed at the time to suggest that the defence was available. The appellant was seeking to gain some advantage from his plea. The material which has emerged since the trial is unconvincing, particularly in relation to any potential mental impairment which might have led to the decision to plead guilty to murder. The interests of justice require that the conviction returned on the basis of the appellant’s own guilty plea should be upheld. This appeal is dismissed. Annex A99. Erskine’s mental capacity

100. The trial

Annex A

[99]The appellant’s problematic psychiatric history was longstanding. He was first seen by an educational psychologist when he was 6 years old. When he was 18 he was seen in custody by a prison psychiatrist and spoke of “insertions and perversions” in his mind. He referred to being watched and hearing voices, and later described how his thoughts were controlled by witches. He was given medication used in the treatment of schizophrenia. This produced an improvement in his condition, and in November 1982 Rampton Hospital refused to accept him on a transfer. In 1983 a psychiatric assessment was unable to find evidence of psychosis or mental disorder. Later that year it was noted that his manner had become increasingly odd. In 1985, again while in custody, he was noted to be “very odd and vague, probably schizophrenic”. He spoke in a whisper, exhibiting bizarre gestures and gait. He complained that he was being watched, and that he was hearing voices and experiencing delusions. However his mental state improved for a while. Thereafter the probation officer responsible for his supervision was aware of a steady deterioration in the appellant’s condition. His manner became “increasingly odd”.

[100]In preparation for the trial, the appellant’s IQ was assessed at 72. This was the borderline handicap range. Roughly 3 in 100 adults of his age would perform worse in these tests.

[101]Dr Paul Bowden, a consultant forensic psychiatrist instructed by the court, first saw the appellant in August 1986. In his report in November 1987 after close observation of him, Dr Bowden concluded that the appellant had demonstrated “an abnormality of thinking, representing delusions, as well as auditory hallucinations, emotional disorder, and abnormalities of behaviour, taken together all were indicative of severe mental illness schizophrenia”. It is revealing that during his discussions with the appellant, the appellant repeatedly asserted that he did not want to be seen as “criminally insane”. He was “vehemently” denying the charges.

[102]At that time Dr Bowden believed that the appellant was fit to plead, but his changing state of mind required that the question should be examined immediately before the trial. Although Dr Bowden’s opinion was that the appellant’s mental disorders constituted abnormality of mind for the purposes of diminished responsibility, he believed that the denial of responsibility for the killing meant that it would be inappropriate for him to address diminished responsibility further.

[103]A psychological report, following a number of examinations, was prepared by Dr Gudjonnson dated 15th December 1987. He concluded that the appellant was functioning intellectually in the borderline range. His behaviour during the interviews was abnormal. The appellant appeared to “live in a world of his own” and his ability “to differentiate between fantasy and reality” were sometimes impaired.

[104]Dr John Hamilton, the medical director and a consultant forensic psychiatrist at Broadmoor Hospital also saw the appellant on a number of occasions. His first report was dated 7 January 1988. His opinion was that the appellant suffered from psychopathic disorder and mental illness taking the form of schizophrenia. The question whether the appellant was fit to plead was examined. On the face of it he met the appropriate criteria including, for example, appreciating the difference between pleading guilty and not guilty. Dr Hamilton was nevertheless troubled about what he described as “many disturbing further aspects” of the situation. For example, he confused Dr Hamilton with his solicitor, his barrister and other doctors who had examined him. He suggested to Dr Hamilton that he was representing the police. When he was asked questions about his symptoms he told Dr Hamilton that if the diagnosis was that he was mentally abnormal, he would press charges against him. On several other occasions he expressed “a fear that if he is convicted…he will be executed in South America”, and offered a wholly irrational form of reasoning to explain why. He was utterly distrustful of “all and sundry”, so that Dr Hamilton was concerned that the appellant would find difficulty in a full professional relationship with his lawyers.

[105]Dr Bowden re-examined the appellant at length on 6th January 1988 in the context of fitness to plead. He believed that he was fit to plead.

[106]Dr Hamilton later produced a further report based on further visits, including a meeting on the first morning of the trial, 12 January 1988. The appellant told Dr Hamilton that the date was 23 February 1987, and although he was present in the Central Criminal Court for his trial, he believed himself to be in “Bow Street Court”. During the interview he was probably hallucinating, and “to all intents and purposes” he appeared to be in a world of his own. His thought processes were disordered, and his speech was vague and inconsequential. If the appellant had committed the killings, his behaviour was only explicable as a result of mental abnormality. This would support a plea of diminished responsibility.

[107]Dr James MacKeith was a consultant forensic psychiatrist at the Bethlem Royal and Maudsley Hospitals. His report is dated 11th January 1988. He concluded that the appellant was suffering from “severe disorder of the personality, as well as severe mental illness in the form of schizophrenia which constituted an abnormality of mind which would have affected him at the dates of the killings. However he was not prepared to advise that he suffered from “substantial impairment of mental responsibility” because the appellant did not accept that he had done the relevant acts. Like Dr Hamilton, he was troubled about whether the appellant was fit to plead. His functional abilities “relating to his fitness to stand trial are seriously impaired by the effect on him of his mental disorder. In large degree I do not think he has control over the effect of the disorder on his thinking and behaviour”. Dr MacKeith went on to add that the appellant was clearly a “grave and immediate danger to the public”, and that he recommended that, if convicted of murder, and sentenced to imprisonment for life, a transfer to a Special Hospital should follow as soon as practicable.

[108]In a report produced at the end of the trial, Dr MacKeith concluded that the appellant suffered from a psychopathic disorder amounting to an abnormality of mind and that his abnormality of mind substantially impaired his mental responsibility for the killings. He also expressed a strong suspicion that the appellant’s greatest concern was to avoid an order which would result in his detention in a psychiatric hospital. The appellant expressed himself in clear terms on this topic. For all that, Dr MacKeith believed that he suffered from severe mental illness, and that if convicted of murder arrangements should be made for him to be transferred to a Special Hospital as soon as possible. Trial

[109]The instructions given by the appellant to his counsel were that he “insisted at all times that he was not guilty of any of the murders”. Counsel have responded, to the best of their recollection some 20 years later, that it was “highly likely that we pointed out before the trial that diminished responsibility was a defence open to him, what it amounted to, and the consequences of it”, but they had no recollection “of dwelling on it or pressurising him in any way”. Counsel continued “it can in some cases be difficult deciding whether to run an alternative defence such as diminished responsibility. But in this case we had no doubt. We had his instructions and we have no doubt that he would not have allowed us to run such a defence. In addition, such a defence would have completely undermined his main defence and would also have left him a large amount of highly prejudicial evidence”. Counsel also considered that on the facts there was an arguable defence open to the defendant. Counsel were also invited to address the question of the appellant’s fitness to plead. They explained that if there had been sufficient material to place before the court to support the contention that the appellant was unfit to plead, they would have pursued it. There was not sufficient material for the purpose. In any event counsel were satisfied that although the appellant was, as they put it, “a very strange man, capable of saying and doing strange things”, he was also capable of giving “coherent instructions”. They also satisfied themselves that he understood that diminished responsibility would be available to him as a defence to murder. Post Trial

[110]After conviction the trial judge wrote the then standard report to the Home Secretary containing his recommendation and the length of detention necessary to meet the requirements of retribution and general deterrence. For present purposes it is worth noting his observation that no medical issue was raised at trial, but that “psychiatric” evidence indicates “probable schizophrenia and severe abnormality from an early age”.

[111]Within a few months of conviction, in August 1988, the appellant was admitted to Broadmoor Hospital under Section 47 of the Mental Health Act 1983 with an appropriate restriction without limit of time on his discharge. The diagnosis was both mental and psychopathic disorder. The mental illness was schizophrenia of which the main symptoms were auditory hallucinations, delusions and thought disorder. He also suffered from a severe form of psychopathic disorder which had been present throughout his childhood and adolescence. It was recorded that his mental illness so incapacitated him that he to all intents and purposes lived in a world of his own and was incapable of communicating with others. “He has refused treatment in prison and is without insight into his conditions…he requires treatment in conditions of maximum security”. He was still maintaining that he had not committed the homicides.

[112]A few months later it was reported that “in Broadmoor he must be considered a continuing danger”. It was strongly recommended that he should not be in a dormitory. It was anticipated that the hospital would have to make long-term arrangements for his security. He has remained in Broadmoor Hospital ever since his admission.

[113]It was not until 1995 that the appellant started to admit that he was responsible for the murders. According to the report from a consultant clinical psychologist in May 2001, following lengthy analysis, the appellant was expressing regret about the offences, but this regret was entirely self-centred. He was concerned about the consequences for himself. He identified the offences as “bad”, but asserted that he did not “hurt his victims in the sense that he did not beat or stab or shoot them”. The psychologist observed that “the fact that he sodomised his victims either at the point of death or just after is not associated in his mind with the idea of hurting his victims”. It is also to be noted that he related “his choice of victim to the belief that elderly people already had a full life and therefore taking that life was not as “bad” as taking a young life, but significantly he also commented on the fact that the elderly would be less able physically to resist his attacks.

[114]Following his admission to Broadmoor, the appellant’s condition was, of course, closely monitored. Between December 2001 and February 2005 his Responsible Medical Officer was Dr Andrew Horne, a consultant forensic psychiatrist. In a report dated March 2006 he summarised the appellant’s history before the killings took place, and then the way in which his condition developed before Dr Horne became immediately responsible for him. At one time it was being suggested that the appellant should be given Technical Life Status. This was an administrative arrangement which enabled the Home Office and the trial judge to agree that a prisoner sentenced to life imprisonment should be treated as if the original order had been a hospital order, with a restriction on release, rather than a life sentence. However before the suggestion could be examined the Technical Life Status procedure had been discontinued.

[115]By now, the appellant was, as we have already recorded prepared to admit his responsibility for the killings. He was asked why he had denied the killings after his arrest, and for many years afterwards, and said “straight away” that he thought that he might be executed at some future time, if the law relating to capital punishment were changed. He was directly asked whether he would have pleaded differently if he had understood the law could not be changed retrospectively, and responded “immediately” that he would then have pleaded guilty. Dr Horne had no doubt that the appellant was still suffering from schizophrenia, and that there were “many descriptions of his abnormal behaviour which are consistent with schizophrenia”. With hindsight it looked as though his illness started to affect his behaviour not later than 1980. His mental illness “played a very substantial part in the causation of the homicides and indeed much of his offending”. In addition to schizophrenia he was suffering from anti-social personality disorder. Dr Horne expressed the view that the appellant was telling the truth when he ascribed his denial for the murders to his fear of the death penalty. He ended “I have no doubt that the illness played a very large part in the processes which led him to commit the murders”. He would have supported a defence of diminished responsibility.

[116]In April 2007 Dr Horne confirmed that the appellant’s mental abnormality “substantially” impaired his mental responsibility for his fatal actions. His illness was “devastating” and it was probably “influencing his behaviour long before identifiable symptoms first appeared in March 1980. Dr Horne was later to observe that when he described the appellant’s “anti-social personality disorder”, this was to be amended to read “although he has some traits of personality disorder, he does not have a diagnosable personality disorder now, though he might have reached the threshold of such a diagnosis at the time of the offences”.

[117]We must note for completeness that solicitors acting on behalf of the appellant, in accordance with the provisions of the Criminal Justice Act 2003, sought a review of the minimum term recommended by the trial judge. The review left the period unchanged. It did not, of course, address the issues currently under consideration. The current assessment

[118]This case has been re-examined in considerable detail by acknowledged and respected experts in this field who have, throughout, been offering their objective assessment of the problem. Professor Nigel Eastman recorded that there appears to have been no dispute that the appellant suffered from paranoid schizophrenia, and that the overwhelming body of psychiatric evidence also diagnosed severe anti-social personality disorder in an individual of borderline mental handicap. The illness was very likely to have played a part in the killings, and that while they may not “have been determined solely from the appellant suffering from personality disorder, and might not have occurred had he solely suffered from schizophrenia, it is likely to have been the influence of his personality upon his symptoms of schizophrenia which ultimately drove to the index offences”.

[119]Professor Eastman also examined the issue of the appellant’s fitness to plead. He suggested that the appellant was so deluded that he was unable rationally to address the question whether to admit his offences and advance diminished responsibility, or to deny the offences altogether. The evidence would support a suggestion that he was “cognitively” unfit to plead. Professor Eastman addressed some of the difficulties arising from the application of the Pritchard criteria based on a nineteenth century view of mental disorder in the present century. This is not an appropriate case in which to address whether and how and in what circumstances the present law should be updated to take account of developments in psychiatric thinking. However the importance of the appellant’s delusional thinking, as summarised by Professor Eastman, is that his decision to deny responsibility for killing the victims “was determined not simply by wishing to avoid responsibility per se for the killing, and to avoid the consequences of doing so within the English justice system which was trying him, but to avoid a consequence which arose in his mind from his psychosis…if a defendant is deluded about matters directly related to his choice of plea, it might reasonably be argued that he is disabled as regards fitness to plead”.

[120]Professor Eastman identified a basis for arguing that “in the present case the effect of the appellant’s illness upon his decision as to how to plead did not go so far as to remove his “capacity” to plead to “diminished responsibility manslaughter”. That is, it was “merely” that his choice as to which way to plead was determined by a belief about the consequences arising from pleading in such a way as to acknowledge the killing, which would place him at risk of deportation and execution. However his belief was false, and arose directly from his psychotic illness. Hence, if he had not been mentally ill in the way that he was he would not have been hampered by a false belief in deciding whether or not to accept that he killed his victims, thereby allowing a possibility of pleading “diminished”. In other words, “ …the appellant’s choice as to how to plead was substantially determined by a symptom of his illness…and that belief inhibited him, in a fundamental way from pleading “diminished responsibility”, given that such a plea requires admission to the killings”. He concluded:

“…the medical evidence which would have been available to the court at the time of the appellant’s trial relating to the appellant’s delusional beliefs, arising out of illness, were the same delusional beliefs which inherently disable the appellant from being able to plead “diminished responsibility”, or determine that he did not so plead. Finally, there would have been a robust medical basis for the defendant pleading “diminished responsibility” at his trial.”

[121]Dr Horne addressed these issues in a further report dated July 2008. Addressing the appellant’s state of mind at the time when he was deciding his plea, Dr Horne underlined the nature of his delusional belief that if he admitted the offences he might be deported and executed. “There can be no doubt that he believed it to be true. In psychiatric terms it is a delusional belief. Delusions are false beliefs and they are often, although not always, held with great conviction…the appellant’s (belief) that he was not mentally ill appears to have been held with great conviction…we need to bear this quality of the belief in mind when thinking about whether it was possible for Mr Erskine to plead not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility. In order to do so he would have coped in some way with his belief that he would be at risk of being executed and with the great anxiety that that would have caused him, and he would also have had to cope in some way with his belief that he was not mentally ill. When the idea that he was ill would have seemed to him obviously incorrect and saying that he was ill would have felt to him like lying”. He continued that “the illness would thus prevent him from pleading guilty to manslaughter, but even if he did manage to get to that point his lack of insight into his mental illness, which again was a product of the illness, would have prevented him from pleading thus on grounds of diminished responsibility by reason of mental disorder”.

[122]Dr Laurence Chesterman, a consultant forensic psychiatrist instructed by the Crown, examined all the available material, and in November 2008 produced a meticulously detailed report. He recorded that in the course of his examination of the appellant the appellant told him that in the event of a re-trial he would plead not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility. Dr Chesterman thought it impracticable, some 20 years after the event, to ascertain whether, at the time of trial, the appellant was or was not fit to plead. He did not share the opinions of Professor Eastman and Dr Horne that the appellant pleaded not guilty as a result of the delusional belief that he would be executed if convicted. Rather this “was a tactical decision…, fully supported by his legal counsel”, and he went on to explain the reasons for this conclusion.

[123]Addressing the issue of diminished responsibility, Dr Chesterman was satisfied that there was definite evidence of mental illness in the form of schizophrenia, but that even now, it was impossible to have a full understanding of the circumstances in which the appellant carried out the killings. He expressed the view that given the history of “extremely disturbed behaviour from a very young age, before he could have conceivably developed schizophrenia, the possibility that (he) could have committed the index offences without having developed schizophrenia cannot be excluded”. If the appellant had pleaded guilty to manslaughter on the basis of diminished responsibility “due to the presence of an abnormality of mind, namely schizophrenia”, this may well have been accepted by the Crown. He added that this would have depended on the contemporaneous explanation which the appellant would have offered for his behaviour at the time, bearing in mind that any much later explanation would be considerably less reliable as the contemporaneous one.

[124]Following a discussion between the psychiatrists Dr Chesterman suggested that “the appellant’s mental illness was of such severity that he could not have advised the Crown to reject a plea of “diminished responsibility”, despite the presence of personality disorder”. In his evidence he expressed himself in this measured way about the appellant’s condition at the time of the killing: “I would say he was seriously ill and whilst that may not have been the overwhelming cause of his behaviour, that he was sufficiently ill for (manslaughter on the grounds of diminished responsibility) not to have been an unjust outcome”.

[125]The core response from the Crown is that the psychiatric evidence as a whole supported the conclusion that at the time of the offences the appellant was suffering from an abnormality of mind which took the form of schizophrenia and psychopathic disorder and that this abnormality of mind substantially impaired his responsibility for his actions at the time of the killings. The Crown therefore accepts that a plea of diminished responsibility may well have been accepted had it been offered at trial. However the Crown suggests that the not guilty pleas at the trial resulted from “tactical pleading” rather than mental disorder, and accordingly the Crown does not accept the appellant’s contention that the plea to diminished responsibility was itself a consequence of his mental disorder. If the court shared the appellant’s contention then the Crown accepted that there would be good reason to quash the convictions for murder and substitute convictions for manslaughter. Annex B Williams’ mental capacity

Annex B

[126]The first medical report on this appellant was produced by Dr M.J.di Lustro, a senior registrar in forensic psychiatry. Her report is dated 10 September 1999. Apart from her interviews with the appellant, and examination of the Crown Prosecution Service documents, and discussions with those responsible for the appellant while he was in custody, and the appellant’s mother, she had available to her medical evidence arising from the appellant’s treatment in hospital after a road traffic accident some years earlier, in April 1991. This accident and its sequelae play a significant part in the argument on the appellant’s behalf, and it is as well to record that Dr di Lustro was fully aware of and addressed it. She recorded that the appellant’s education would probably have been affected as a result of what she described as the “serious head injury” that he suffered at the age of 12, and that because his injuries were such that his ability to obtain and keep employment would have been impaired and that his disability payments were amply justified. She noted that the appellant had been rendered unconscious and suffered from both pre and post traumatic amnesia for the accident, and that he had been in a coma for 3½ weeks. All this was confirmed in the medical records. She asked him for his view of the impact of the head injury, and he told her that his behaviour was impaired if he was struck on the head, giving an example of an incident when he was 15 or 16 years old. She recorded a full history of an admission into a mental health unit in October 1998 following what he asserted was in a “suicide rampage”. The subsequent discharge letter diagnosed “moderate depressive disorder”, with advice to seek follow up assistance and counselling for drug abuse. The issue of drug and alcohol use was then addressed.

[127]His mother described the appellant displaying “some behavioural difficulties” after he sustained the head injury. She had not expected him to make what was described as a “remarkable recovery” after the injury. She had been warned that he might suffer from epileptic seizures, but he did not do so. However he had a tendency to be “short tempered”, but she had only ever witnessed a single incident of aggressive behaviour by him, which was shortly after the accident. She had been warned that he would suffer from mood swings, adding that although this had been noticeable, it became increasingly obvious when he began to consume alcohol and take drugs. She thought this was later to increase his depression, and he began to mix with the wrong company, so that his conduct and drinking led her to ask him to leave the house, before he was admitted to a psychiatric hospital in late 1998.

[128]In the course of her examination Dr di Lustro recommended to the appellant that he should undergo an electro-encephalogram or EEG, which would provide evidence whether he might be suffering from epileptic phenomena. However the appellant refused to undergo the investigation, as she put it, “consistently”. It was a “crazy brainwave test…it’s for nutcases”. In examination he appeared to be of “at least average intelligence” and some of his behaviour and emotional responses were inappropriate to the situation in which the appellant found himself. Whenever she appeared to be what he described as “getting inside his head” he would request a termination of the interview. After recording the entire history of the appellant’s behaviour following his remand in custody, she concluded that he was fit to plead and that he was not suffering from a mental disorder of a nature or degree to warrant his formal admission to hospital. She did not think that he was suffering from psychiatric disorder, such as disorder of mood or schizophrenia at the time of the offence, or that the existence of his fluctuating mood and an inability to differentiate between his own thoughts and what he described as “voices” arose from the brain injury he had suffered in the road traffic accident. These views were consistent with those expressed by the consultant forensic psychiatrist, Dr J.S. Shapero, who had also spent a considerable amount of time with the appellant.

[129]Dr di Lustro recognised that the appellant had difficulty in concentrating, appeared to be quite suggestible, and that there was an inconsistency of his account in relation to the offence, all of which may have been attributable to his brain injury. She concluded that the appellant suffered from organic personality disorder, a brain injury causing a significant change in his personality. This diagnosis excluded any other type of personality disorder. A defence of diminished responsibility arising from the consequences of the brain injury suffered at the age of 12 “would not be possible”, and in her opinion the organic personality disorder did not amount to 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) to substantially impair his mental responsibility for his acts and omissions, omissions in doing or being party to he killing…it would be, of course, a matter for the jury to decide whether such abnormality of mind substantially impaired his mental responsibility for his acts and omissions in doing the killing”. The precise interpretation of these observations was a matter in controversy in argument. However Dr di Lustro concluded that the offence resulted from a combination of the appellant’s homeless state, the effect of his previous brain injury, the circumstances of his relationship with the daughter of his alleged victim and voluntary intoxication”. She added that she would strongly recommend that the appellant should comply with EEG investigations before trial and that these could be carried out within the prison system.

[130]The solicitors then acting for the appellant sought a report from a psychologist, Dr Paul Jamie, a consultant clinical psychologist. He examined all the relevant material, directing his attention to the possibility of any continuing effects arising from the road traffic accident in April 1991. It is obvious that the appellant was profoundly suspicious of the interview, and the reasons for it. Mr Jamie suggested that there were deliberate errors made by the appellant in a form “that suggested a degree of motivational distortion”. When he took issue with the appellant about the errors he had made, “he was able to improve upon his performance”.

[131]Dr Jamie recorded that the head injury suffered in 1991 was properly described as severe and that it would produce some enduring long-term problems, which would contribute to his low level of intellectual functioning. There was, a distinct possibility, however, of a degree of distortion of his performance, and his problems were being exaggerated, although to “an unquantifiable amount”. Subject to the results of any EEG test, he did not believe that the accident in 1991 had any “specific influence on the appellant’s behaviour at the time of the incident”.

[132]On 20th September 1999 the appellant’s solicitors wrote to his leading counsel that the client had been “persuaded” to submit to anEEG and an examination by a clinical neuropsychologist. An EEG was arranged. According to the discussions with the appellant’s former solicitors, every possibility of avoiding a plea of guilty to murder was looked into, but when the equipment for the EEG was taken into hospital the appellant refused to see them.

[133]In the result, no EEG assessment or MRI scan ever took place. It is clear that the appellant chose not to co-operate in the process of further investigation of his condition, and that this was a deliberate decision. Williams – post trial

[134]Eventually the appellant decided to participate in an EEG. When this was carried out in late 2002 it showed abnormalities which could be related to the earlier head injury. In early 2003 an MRI scan of the appellant’s brain also showed damage consistent with the head injury. In October 2003 a consultant neurologist concluded that the appellant had an organic personality disorder, that is the same diagnosis as that made by Dr di Lustro.

[135]In October 2004 Dr Ekkehart Staufenberg, a consultant forensic neuropsychiatrist, became involved in the appellant’s case. He concurred with the diagnosis of organic personality disorder. He did not support a diagnosis of epilepsy. He suggested a neuropsychological assessment should be carried out.

[136]In due course, a clinical psychologist, Mr Tom Manly, concluded that the early head injury sustained by the appellant had left long-term consequences in terms of cognitive ability and behaviour. This was evidenced in the MRI scan. He thought that the full extent of the appellant’s difficulties were not apparent at the time of the trial. The reasons were that the appellant’s apparent lack of clinical involvement, and the consequent lack of report, his own vagueness, and the absence of an MRI or other scan information and what was described as his “difficulty” in complying with neuropsychological assessments. In summary, the full extent of the brain injuries suffered by the appellant when he was 12 yeas old was not addressed or assessed before he was arrested in connection with this offence. He also believed that Mr Jamie’s formal assessments of the appellant’s abilities were undermined by what were described as “functional aspects” of the appellant’s performance. However Mr Manly noted that the appellant’s performance in the assessments was “not consistent with him performing to the best of his ability”, so that Mr Jamie was “obliged to conclude” that the appellant was “more able than the tests implied”. So, in effect, Mr Manly’s view was that the true nature of the appellant’s problems was not apparent at the date of trial.

[137]Dr Staufenberg produced a number of further reports. In September 2005 he concluded that the appellant was suffering from two distinct mental disorders, organic personality disorder and bipolar disorder. The organic personality disorder had been identified at the date of trial. The bipolar disorder had not been identified at that time, and indeed it was not suggested that it had been present to be identified. In April 2006 the appellant was transferred from prison to hospital under section 47/49 of the Mental Health Act 1983. In January 2007 the multi-disciplinary report on him recorded that the “prison setting for him was damaging and makes his overall mental health situation worse”. There is a significant degree of uncertainty whether bipolar disorder had “already been established” in the appellant before he committed the offence, and the highest Dr Staufenberg was prepared to put it was that he could not exclude that possibility “with certainty”. His conclusion in relation to diminished responsibility was that there was strong “supportive clinical evidence” to suggest that the appellant’s brain’s functional capacity was “materially compromised” at the date of the killing. The effect of the injury sustained in the road traffic accident and its consequences created a material alteration in his personality which amounted to an abnormality of mind. He concluded that if he had been addressing the issue at the time of his report in November 2007 he would have “recommended” that a plea of manslaughter on the basis of diminished responsibility should be considered. Dr Staufenberg suggests that the appellant’s withdrawal of his consent to an EEG was itself a consequence of his brain injury, which impaired his ability to instruct his legal advisers.

[138]Mr Jamie was asked to reflect on Mr Manly’s report, and indeed those of Dr Staufenberg, although he was prepared to limit his comments in relation to Dr Staufenberg’s reports to neurophysiological issues. He accepts that if the appellant had “presented” himself as he did to Dr Manly then Mr Jamie would “speculate” that he would have drawn a somewhat different conclusion to the one he did. However his conclusions were based on the circumstances at the time, and the appellant was not “signalling” clear psychosocial elements of dysexecutive syndrome, not reporting aggression or irritability. Even if the new “scan evidence” had been available, he doubted whether it would have influenced his view very greatly because he was concerned with the appellant’s “observable behaviour”. He believed that the appellant’s condition had changed over time. He was not prepared to accept that the problems identified by Dr Staufenberg should lead to the conclusion that the same problems must have been present at an earlier stage.

[139]A psychiatric report was prepared by Dr S Geelan, a consultant forensic psychiatrist who had assessed the appellant as long ago as March 2003. In his report of March 2009 he describes a discussion with Dr di Lustro on the basis of the results of the MRI scan. She expressed the view that that result did not surprise her, as it demonstrated what she would have expected, and was “entirely consistent with her clinical diagnosis”. Therefore her conclusions would not have been altered. She hadalso considered the diagnosis of bipolar disorder. He observed that she had “clearly considered” the possibility of an underlying mood disorder, which she had excluded at the time. Bipolar disorder is a form of mood disorder, and she had addressed the issue when making her own assessment. Having examined the evidence Dr Geelan was satisfied that the recommendations in relation both to fitness to plead and diminished responsibility at the time of the trial were correct. He would not have supported the contention that the appellant’s abnormality of mind substantially impaired his mental responsibility for his actions. If there had been an earlier history of violent incidents in a variety of contexts, then that would have supported diminished responsibility, but there was no such evidence.

[140]Mr Alun Jones QC invited us to consider the possible impact on the appellant’s state of mind of his consumption of alcohol prior to the killing. It was a very late contention, which rightly was not developed with Mr Jones’ customary robustness. In our view it adds nothing to the present appeal.

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