Symmons, R v [2009] EWCA Crim 734

[2009] EWCA Crim 734

Case No C3/2007/00312

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT ST ALBANS

HHJ FINDLAY-BAKER QC

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

Date 07/04/2009

Before

LORD JUSTICE DYSON

MR JUSTICE IRWIN

MR JUSTICE SWEENEY

Between

RRespondent

DEREK SYMMONSAppellant

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Edward Fitzgerald QC and Paul Taylor (instructed by Birds Solicitors) for Appellant

Frances Oldham QC (instructed by CPS) for Respondent

Hearing Hearing dates: Monday 30 and Tuesday 31 March 2009

Judgment

[1]On 11 December 2006, the appellant was convicted of the murder of his wife Christine and sentenced to life imprisonment with a minimum term of 16 years. He appeals against conviction and sentence with the leave of the single judge, the leave in the case of the appeal against conviction being limited to certain grounds of appeal.

[2]The appellant admitted killing his wife at their home on or about 5 September 2005.

The judge put the defence case in his summing up in the following way:

“if what I did went beyond what was justified in self-defence, then the violence I used was used because I was provoked...He says that it was a combination of his wife taunting him with being like his mother, whom he says she loathed and her deriding his sexual prowess, all against the background of a disintegrating marriage”

. In reality, however, the defence was one of provocation. The defence of diminished responsibility was not raised.

[3]The appellant was 62 years of age at the time. He had been married to the deceased for 37 years. They had 2 children, Claire and Mark. The marriage had been in serious difficulties for a long period. Claire told the jury that the deceased was scared of the appellant. She said that he was “controlling” and “you would not want to disagree with him”. Mark said that the appellant was generally well liked, but he described him as a “master of spin”. The appellant said that he did not recognise this picture of himself. He said that he was not a controlling person. He was even tempered and, he said, it was the deceased who was assertive and in command.

[4]The appellant told the jury that he had first experienced problems of sexual impotency after the death of his mother. These were overcome, but they recurred in 2000-02. He said that the deceased demeaned and belittled his sexual performance in the presence of others. For example, he said that at a dinner party in 2001, she said (so that others could hear) that he could not “perform between the sheets”. There were also occasions when the deceased made disparaging remarks about the appellant’s mother. The appellant bugged his wife’s telephone conversations in 2002. He took her to task for foul mouthing him. There was one particular tape which was played before the jury during the cross-examination of the appellant which has assumed some importance in this appeal. We shall come to this later.

[5]The deceased suspected the appellant of having affairs with many women. The appellant starting having an affair with Myra Croney in 2005. The deceased found out in July 2005 and in July she instructed solicitors to start divorce proceedings. Sandra Brock, a friend of the deceased, said that the deceased had told her that she was afraid of the appellant and that he would kill her if he found out that she was looking through his things.

[6]The deceased confronted the appellant about the affair. He apologised and agreed to move to a different part of the house and to go with her to see a marriage guidance counsellor. Her solicitor wrote to him informing him that divorce proceedings had been or were about to be issued.

[7]Six weeks before she died, the deceased gave some or all of her jewellery to a friend, Mrs Reyner, who said that the deceased told her that she was afraid that when she confronted the appellant he might dispose of it. Three or four weeks before her death, she told Claire that she had hidden money in the loft, saying “if anything were to happen to me, I put some money in the loft”. Later she gave some diaries to Claire to look after so that the appellant would not find them.

[8]On 1 September, Claire overheard the deceased saying to the appellant that she was angry with him. Mrs Brock said that the appellant was agitated and there was an “inner anger” in him. He told her that he was going to the South of France to enjoy life. The deceased told Mrs Brock that she was determined to go through with the divorce proceedings. She said that she was scared of the appellant and feared that he would kill her.

[9]Claire said that on 4 September the deceased spoke to her of previous violence by the appellant and said that she feared for her life.

[10]On the evening of 5 September, the deceased and the appellant attended a marriage guidance counselling session with Ms Pallenberg, who is a psychotherapist. Ms Pallenberg gave evidence saying that the deceased was cross with the appellant, cross to be there and, of the two of them, she was the one who was reluctant to carry on with the marriage. She said that the appellant did most of the talking in an apparently relaxed and comfortable manner. In her witness statement dated 27 September 2005, she described his demeanour as bright, cheerful, lively, animated and keen.

[11]They had then gone on to a restaurant together. According to the appellant’s account, the deceased was annoyed and hostile. Sandra Brock phoned the deceased while they were in the restaurant. Mrs Brock said that the deceased said that she was alright. Mrs Brock’s impression was that the deceased was in quite an upbeat mood and she thought that the deceased had been pinning a lot on the counselling.

[12]In his evidence at the trial, the appellant said that on their way home, the deceased was upset and that she taunted him about his mother saying that he was bald like she had been: this was a reference to the appellant’s mother having undergone chemotherapy. He also said that this was a sensitive subject and it upset him. He told the jury that when they returned home, she called him a sad old guy who was past it and not capable of sex any more. She threatened to tell his friends about his impotence. She hated him and he would have no friends. He felt angry but did not know if he felt violent towards her. She screamed at him and then grabbed him. It was the defence case that he was particularly sensitive to taunts about impotence and references to his mother. It was the prosecution case that none of this taunting had occurred. It is of considerable significance that the appellant made no reference to this taunting when he was interviewed by the French or the English police following his arrest.

[13]The appellant told the jury that, when they returned home on the evening of 5 September, the deceased grabbed him by the throat and squeezed with both hands. He tried to pull her arms away. She kneed him in the groin. He grabbed her by the neck and they held each other, neither letting go. They fell towards the door and he hit his head. He was dazed. He next recalled that the deceased looked as if she was knocked out. He pulled her outside and tried to revive her. She was dead. He had strangled her.

[14]The prosecution case was that the appellant was the aggressor. They relied in particular on the fact that he came through the incident virtually unscathed, whereas the deceased suffered numerous injuries. The medical evidence was that she had suffered a violent death with multiple violent blows dealt to her body while she was still alive. Her injuries are described in detail at pages 55 and 56 of the summing up. There is no need to refer to them here.

[15]The appellant claimed that he went into shock. He had no recollection of putting the deceased’s body in the boot of his car or of wrapping it in polythene. His first recollection was driving south through France. He first realised the body was in the boot when he made his first stop at Macon in France. He booked into a hotel where he planned to take his life. He did not do so. His children phoned him and as a result he contacted the French police and returned to this country on 12 September.

[16]The prosecution rejected this account. They pointed to the absence of blood at the scene, the absence of any signs of disturbance, the absence of the deceased’s shoes, handbag and phone, all of which, they said, indicated that the appellant had taken steps to cover his tracks. There was a plastic sheet over the body in the boot, concealing it from view if the boot was open. Further, the appellant had obtained 2 lots of cash using different cards, but he claimed to have no recollection of this. The prosecution case was that his movements at work on the morning of 6 September were not those of a man in shock. He left a post-it note to the effect that he was taking a “couple of days hols”. He had received a text message from Myra Croney before he crossed to France and he had replied that he had a problem with the time they were due to meet. He phoned Ms Pallenberg at 10.00 hrs and explained to her husband that they would not be coming because his wife thought that it was a waste of time.

[17]That is a sufficient account for the purposes of setting the scene for a consideration of the grounds of appeal.

The grounds of appeal

[18]We omit those grounds of appeal which Mr Fitzgerald QC does not pursue. Ground 1 is that the appellant was effectively forced to give evidence when he was unfit to do so. Ground 3B is that there is fresh evidence that the appellant was suffering from a depressive illness at the time of the killing. This is contained in psychiatric reports by Professor Eastman. The illness is said to be relevant to the defence of provocation. Ground 4 is that the judge failed to give a proper direction to the jury in relation to the issue of provocation. Ground 5 is that there is fresh evidence to support a defence of diminished responsibility in Professor Eastman’s reports. The appellant appeals on all of these grounds of appeal with the leave of the single judge. Ground 6 (for which leave was refused) is that there is fresh evidence to support the appellant’s assertion in relation to his impotency. The appellant renews his application for leave to appeal on ground 6.

Ground 1: was the appellant unfit to give evidence?

[19]In May 2006, the appellant had been prescribed Prozac whilst he was detained in prison. According to his witness statement of 27 November 2007, without telling his legal representatives, he stopped taking the Prozac on 18 November 2006, 2 days before the trial was due to start. He told Professor Eastman that he did not notice any changes for a few days. In his statement of 27 November 2007, he says that he began to suffer from a headache on about 25 November 2006 and was very irritable and the headache persisted through 26 and 27 November 2006. On the morning of Tuesday 28 November 2006, he was suffering from a terrible migraine headache. He says that he needed medication urgently but did not receive any until 16.00 hrs.

[20]During the consultation with his legal team after court on 28 November, he told them for the first time that he was not feeling well and that he had stopped taking his prescribed medication a week earlier and had not been sleeping. The judge was informed and asked for the appellant to be seen by a doctor as soon as possible. At 17.38 hrs, the trial solicitors sent a letter to Dr Al-Mekhlafi (the prison doctor) asking him to assess the appellant that evening saying:

“By way of background, we can inform you that our client’s behaviour has become increasingly erratic during the last few days at court. Mr. Symmons had been exhibiting escalatingbouts of manic energy followed by periods of extreme exhaustion and fatigue. Our client’s legal representatives, including his leading Counsel, Nadine Radford QC, became particularly concerned during the course of this week as the above behaviour has increased in severity. By this afternoon, our legal team was of the view that our client was unfit to give evidence, which he was due to do this afternoon.”

[21]He was seen by the doctor at 19.35 hrs. The notes state that he was complaining of a severe headache (migraine) and blurred vision; that he could not concentrate and could not give evidence. He told the doctor that he had ceased taking his anti-depressant medication 4 days earlier. He was considered by the doctor to be unfit to attend court until Monday 1 December. He started taking the Prozac again.

[22]On Wednesday 29 November, Dr Al-Mekhlafi sent 2 faxes to the court. The first stated that the appellant was not fit to give evidence until 1 December when he would review the appellant’s condition. The prison record states that at 13.15 hours the appellant told Dr Al-Mekhlafi that he felt better than the day before. He had slept well and was not suffering from migraine: Ibruprofen was helping with the migraine.

[23]On the same day, the judge received evidence from the Deputy Prison Governor and from Dr Al-Mekhlafi via video link. The doctor told the judge that the appellant was suffering from depression. He had mood swings and suicidal thoughts. He had resumed taking the Prozac, but it did not take effect immediately. He did not consider that the appellant’s mental state would have been affected by his coming off the Prozac for a period of 4 days or one week. He did not accept that Prozac was one of the medicines that fell within the SSRI syndrome which cause withdrawal symptoms. The doctor’s only concern was whether the appellant would suffer a migraine attack: that would lead to blurred vision and an inability to concentrate which would affect his ability to give evidence. To that end, he wanted to give the appellant painkillers which would “kick in” immediately. The appellant had told him that he was 75% fit at that time. Medication for the mood swings would take 2 to 3 weeks to “kick in”.

[24]The Deputy Governor said that the doctor and the Mental Health In Reach Team had spoken to him. He told the judge that their conclusion was that the appellant was feeling less depressed and felt that he could attend court the following day (ie 30 November). His only problem was that he might have a panic attack which would cause a migraine.

[25]The judge decided that the appellant should be brought to court the following day (30 November) and that there should be a doctor on call to examine him when he arrived. If the appellant suffered a migraine attack, the case would be adjourned to enable him to recover.

[26]The appellant had difficulty sleeping that night and took sleeping medication at 2.00 hrs. He was awakened at 6.00 hrs to go to court. He felt confused and had a severe headache. At court, he was seen by a forensic medical examiner, Dr Dulfeker who spoke to the prison doctor. Dr Dulfeker gave evidence to the judge as to the appellant’s condition. He said that when he first examined the appellant, the appellant was sleepy, but he had improved 45 minutes later. The appellant complained of a slight low grade headache and the doctor gave him Ibruprofen and Panadol at 8.00 hrs. The doctor said that the appellant would be able to give evidence “but may need time to, or repeat questions put to him slowly”. He thought he was 70-80% fit. The judge asked whether the appellant was fit to give evidence. Dr Dulfeker said that he was fit to give evidence “but he needs prompting and able to---he will be answering questions slowly and taking his time”. In response to the judge’s question “So not on the peak of his form?”, he said “No, not at all”, but added that he had not seen his normal self so it was difficult to assess.

[27]Counsel then representing the appellant, Mrs Radford QC, expressed her concerns to the judge about requiring the appellant to give evidence when he was only 75-80% fit. She asked the judge to adjourn the matter until the following day (1 December) or preferably until Monday 4th.

[28]The judge decided that the appellant should start giving his evidence in 30 minutes time at 12.00 hrs that day. He said:

“What I am minded to do is to allow a little further time for improvement this morning, aim to start his evidence at about 12 o’clock and keep a very careful watch over how it is given. In the event, if it becomes apparent that he is to any significant degree impaired in his ability to give evidence, then I will stop the case this afternoon. Otherwise I will hope to continue.”

[29]Mrs Radford then obtained an endorsement on her brief from the appellant in these terms:

“I….am willing to give evidence in my trial, despite feeling that I am not at full capacity. I have been advised that the jury will be informed that I am not well and that the case may be adjourned if the judge agrees that there are concerns over my capacity to give evidence.”

The appellant says that he felt that he had no choice but to agree to this and would have delayed matters if he had thought that he had the option. He was given Ibruprofen and Paracetamol at 11.45 hrs. Shortly thereafter, the hearing resumed. The judge indicated that he had received a note from a juror to say that he had tonsillitis and was on anti-biotics and painkillers and would like to be excused the following day to allow the medication to work.

[30]Mrs Radford said to the judge that she was still getting messages from the appellant about his headaches and concerns, although he had endorsed her brief. She submitted that these concerns and the issue of the juror would and should be resolved by adjourning the trial until Monday 4 December. As she put it, “for the sake of 2 and half hours, we have 2 people who are incapacitated”. The judge said:

“I am going to say that we will have a day off tomorrow. That will have the advantage that it will enable the juror, taking him at his word and at face value, to be back on proper form by Monday. It will also give the defendant a further day in the course of which the medical examination that has been scheduled can take place at the prison. That leaves what is appropriate to do for the rest of today. In my judgment the proper and right course to take is cautiously to proceed. It is now 20 past 12. We have a relatively short time before lunch. Then we have the afternoon. I recognise that that is not what the Defence wish, and I recognise too that it will inevitably mean that there is a break in the defendant’s evidence, but it does seem to me that one of the other advantages of it is that it will mean that the defendant does actually start. It is a matter of concern to me that one of the underlying considerations that have lain in the way of a start of his evidence may be some inhibition on his part which may, may, I say no more than that, be allayed when he has actually started giving evidence, so that is the course that we will take. I will, as I have already said, explain to the jury that there have been concerns expressed as to the defendant’s health, and we are going to continue on a cautious basis.”

[31]The judge also authorised Mrs Radford to speak to the appellant about his condition after he started giving evidence. The judge told the jury that in the light of the note that he had received, they would not sit on the next day. He also said that concerns had been expressed about the appellant’s health and that this had been the principal reason for the delays the day before and that day. He added “I am satisfied that although he is not in the best of health at the moment that we can start with his evidence if we do so cautiously”.

[32]The appellant started to give his evidence in chief that day. By the end of the day’s proceedings, he had not reached the point in his account when he killed the deceased.

[33]On his return to prison, he was examined by Dr Al-Mekhlafi. The prison medical notes timed 19.50 hrs on 30 November state “....Return from court, feels much better today, was able to give evidence in the court. Said has had headache in the court took Paracetamol and Ibruprofen then headache was improved”. In his statement of 27 November 2007, the appellant states at paragraph 11 that he told the doctor that he was feeling a little better, but that he still had an awful headache and was still not his normal self.

[34]He remained in prison on 1 December. In his statement, he says that he phoned his solicitors. He wanted to tell them that he was still feeling dreadful, but the switchboard told him that he was not allowed to speak to anyone. The appellant has waived privilege and we have the benefit of a response from the solicitors which states that the appellant did speak to Andrew Wainwright and Piers Rankin. There is an attendance note made by Mr Rankin which includes the following:

“PR in brief telephone conversation with client. PR confirmed to client when he rang that as he was part heard giving his evidence we were unable to speak to him in any detail whatsoever about his evidence or the case generally. However, the judge had given us leave to speak to him about his medical condition. Client stated that he would avoid taking sleeping tablets on the night prior to being back in court on the Monday and stated that he was attending an art class that afternoon which he hoped would keep him calm. PR advised that for the sake of client’s health, he should do everything he can to relax himself over the weekend. PR also confirmed that Leading Counsel had allowed us to confirm to client that he was doing well as a witness but could not go beyond that.”

[35]This favourable impression created on the appellant’s legal team about his performance on 30 November is confirmed by what is said by Mrs Oldham QC in her skeleton argument for this appeal. At para 18, she says:

“The Appellant gave evidence clearly and confidently, answering questions from his leading counsel appropriately and without any apparent difficulty. This is supported by the fact that Mrs Radford QC authorised those who instructed her to inform the Appellant during the ensuing three day break in his evidence that he was “doing well as a witness”. 36. Mrs Oldham says that in the light of the issue raised as to the appellant’s fitness to give evidence, junior counsel for the prosecution kept a particular eye on the appellant when he came to give his evidence. Counsel’s contemporaneous note for 30 November reads: “Throughout his evidence DS answered spontaneously and appropriately without prompting and without needing to ask for a single question to be restated. On returning to the dock (after the lunch time adjournment) he was smiling and engaged with security guard.”

[37]The appellant continued to take Prozac over the weekend. He was returned to court on 4 December. By now, approximately 5 days had elapsed since he resumed taking his medication. Neither he nor his counsel sought to go over any part of the evidence that he had given on 30 November on the basis that he had not done himself justice. The solicitors were delayed in the traffic on the morning of 4 December. Mrs Radford obtained permission from the judge to speak to the appellant herself. She recalls that the appellant told her that he was “OK” and able to continue giving his evidence. The appellant has no recollection of this. He told Professor Eastman on 23 October 2007 (ie almost 11 months after the event) that he had no energy and was still not feeling fit to give evidence and would have told his legal team this if he had seen them. He said that he could not understand questions put to him in cross-examination. He told Professor Eastman “I know I was very aggressive and couldn’t care less”. In his statement of 27 November 2007, the appellant says that he was still suffering from a migraine and felt muddled and confused.

[38]During his cross-examination on 4 December, he asserted that he was not angered by the disparaging remarks about his impotence that his wife had made from time to time. He sought to portray himself as a calm and reasonable man. The prosecution successfully applied to play the tape of a telephone call made between the deceased and the appellant. The date of the conversation has been put variously at sometime in 2002 and sometime in 2005. The tape included the following exchange:

“Sound of Derek SYMMONS clear as constant voice of Chris SYMMONS saying please, please, please, please, tearful Oh please I wasn’t lying I was, I love you darling oh please You’re a cow … and I just … honestly … things I learnt about you … Fourteen people with these tapes … you fucking, fucking … fourteen people (Shouting) I’m sorry please, I’ll do anything, anything The best thing can do for me is kill yourself Oh darling please You’re a cunt, you’re a fucking cunt Oh please darling Fucking shitter … I’m on the phone to everybody tomorrow about your boobs, put a big sign on the front of the house saying she’s got plastic boobs they’re fucking like apples Oh darling please (screaming, tearful) I beg you, I beg you You’re fucking sick … you’re sick … You’re a shitter … all my life, you’ve spoilt my fucking life … you cunt … fucking cunt … fucking cunt … Just this one time please forgive me, just give me one more chance You’re talking to me nice on the phone and you’re yapping off to fucking everybody you cow, you fucking … Darling, please oh please forgive me, please, just give me one chance, oh please You’re nothing but a …”

Oh please I wasn’t lying I was, I love you darling oh please Fourteen people with these tapes … you fucking, fucking … fourteen people The best thing can do for me is kill yourself Oh darling please You’re a cunt, you’re a fucking cunt Oh please darling Oh darling please (screaming, tearful) I beg you, I beg you Just this one time please forgive me, just give me one more chance Darling, please oh please forgive me, please, just give me one chance, oh please You’re nothing but a …”

Darling, please oh please forgive me, please, just give me one chance, oh please

[39]On 5 December, the appellant continued giving his evidence. In his statement of 27 November 2007, he says that he was still suffering from a migraine and low concentration. He says that he was very confused throughout his evidence. He felt lethargic, irritable and unsteady. He did not see his legal team again until after he had concluded his evidence. Dr Al-Mekhlafi’s notes of his examination of the appellant at 19.30 hrs that day state “returned from court, still on trial, no migraine in the court today; said he was feeling depressed and low mood in the court today, his reaction was angry—out of normal character, denies thoughts of self-harm or suicide at present.”

[40]It is clear that the appellant’s legal team considered that he had performed very badly in the witness box. Attendance notes made by the solicitors on 5 December state “general view client totally annihilated himself”.

[41]Professor Eastman was asked to consider the circumstances in which the appellant was required to give evidence from a psychiatric point of view. In his report of 28 November 2007, he says first, that it is likely that, at the time he gave evidence, the appellant was suffering from the withdrawal effects from having stopped taking Prozac. Some of the symptoms he described were consistent with being withdrawal symptoms from the cessation of Prozac. Secondly, it is likely that there was beginning to be a “breakthrough” of the appellant’s depressive illness. Thirdly, the appellant’s headaches were likely to have been depressive and anxiety based in origin; alternatively, or in addition, the headaches were a symptom of withdrawal of Prozac.

[42]There is also a statement by Robert Stringle dated 12 September 2007. Mr Stringle is a longstanding work colleague of the appellant. He was in court during the appellant’s evidence. He says that he was shocked at the appellant’s condition. He said: “He took 5 to 10 seconds to respond to each question, rocking slightly and gripping the edge of the dock. He spoke in a monotone like someone in a stupor”.

[43]Mr Fitzgerald submits that the appellant was not able to participate effectively in the proceedings. He refers to V v UK

(2000) 30 EHRR 121

at [84] and Makhfi v France (19 January 2005 ECtHR 59335/00) at [39] to [41] in support of the proposition that

article 6 of the ECHR

requires that a defendant should be able to defend himself effectively by participating effectively in the proceedings.

[44]He relies on the fact that the appellant had a history of mental health problems, which was or should have been known to the court. In 1978, he suffered from depression for about one year. In 1988, the appellant says that he suffered a mental breakdown after the death of his mother, although there are no medical records to support this. There is an entry in his general practitioner’s notes for 14 April 2002 about a recurrence of his depression after 20 years. On 24 August 2005, the general practitioner’s notes record that the deceased made an appointment because she was concerned about the appellant’s depression, although the notes indicate that the doctor did not make a diagnosis of depression. We shall return to this material when we consider the question of whether the appellant was suffering from a depressive illness at the time of the killing.

[45]Mr Fitzgerald submits that the appellant was suffering from the possible effects of his depression breaking through. He was said by Dr Dulfiker to be only 70-80% fit. The appellant was not seen by a psychiatrist before he had completed his evidence, although the judge made it clear that he should have been. He submits that these factors alone are sufficient to justify the conclusion that justice was not done in this case, or at least that justice was not seen to be done. Mr Fitzgerald accepts that he cannot point to anything in the transcript of the appellant’s evidence on 30 November which suggests that he was not doing himself justice in the way he gave his evidence on that day. He submits, however, that there is plenty of evidence that the appellant was not doing himself justice on 4 and 5 December.

[46]We reject this ground of appeal. Other judges might have adjourned the proceedings on 30 November until 4 December. But the judge thought that the appellant might benefit from making a start on giving his evidence. In our judgment, that was a reasonable judgement to make despite the strong submission made by Mrs Radford that the trial should be adjourned until 4 December. There undoubtedly were concerns about the appellant’s fitness to give evidence. The judge was alive to these. He said that he intended to keep a careful watch over how the appellant gave his evidence. If it became apparent that he was to any significant degree impaired in his ability to give evidence, he would stop the case. There is no reason to suppose that the judge was not true to his word. Moreover, if the appellant’s legal advisers had thought that he was having difficulty, then, mindful of what the judge had said, they would surely have made an application. The appellant himself is an intelligent and articulate man. He had heard what the judge had said. We think that, if he had felt during his evidence that he was unfit to carry on, he would have said so. The reason why the appellant was permitted to carry on until 16.00 hrs on 30 November was because there was no indication that the appellant was unfit to give evidence. That view of his performance was supported by the notes made by the prison doctor in the evening of 30 November and the contemporaneous evidence of the views of the appellant’s legal representatives as well as the impression created on counsel for the prosecution.

[47]Events therefore proved that the judge was right not to adjourn the trial until 4 December. By then, the appellant had been on Prozac for a further 3 or 4 days. The medical evidence at to the effects of ceasing to take Prozac is now agreed. Withdrawal symptoms tend not to occur with Prozac, although they can do so. Moreover, if withdrawal symptoms were to occur, they would tend to do so, not as with other SSRIs, within the first week, but substantially later, particularly since the drug takes up to 6 weeks to disappear from the body completely.

[48]This agreed medical evidence supports our view that there is no reliable evidence that the appellant was suffering from withdrawal symptoms by 4 December. Nor is there any reliable evidence that he was suffering from depression at that time. No doubt that this experienced judge was still looking carefully to see whether the appellant was disadvantaged by any unfitness to give evidence. His legal representatives certainly were. If they had thought that he was unfit, they would have made an application. They did not do so. The appellant could have told them that he was unfit or unwell. He did not do so. In our judgment, his later statements that he was unfit are unreliable and we reject them. They should be compared with the evidence about his attempts to contact his lawyers on 4 December. These attempts were successful and what he told Mr Rankin (see [34] above) completely undermines the passage in his statement of 27 November 2007 where he says that, if he had been able to speak to his solicitors, he would have told them that he was feeling “dreadful”.

[49]We have been shown passages from the transcripts of the appellant’s evidence for 4 and 5 December. There were times when he was tearful and almost inaudible. But there were also times during his cross-examination when he gave as good as he got and he showed a remarkable grasp of the detail of the case. There is no doubt that, viewed overall, he did not perform well under cross-examination. Things went wrong for him when he was confronted by the tape on 4 December. But there is nothing in the transcripts of his evidence to suggest that he was unfit to give evidence. It is clear that his cross-examination on the taped phone conversation (see [38] above) was a defining moment in the trial. The appellant must have appreciated this. His low mood at times during his cross-examination is readily explicable by the fact that he must have understood that he had not performed well under highly damaging cross-examination to which there was no answer. For the reasons that we have given, there is no real basis for a finding by this court that he was unfit to give evidence.

Ground 4

[50]There is now no doubt as to the constituents of provocation. The defendant must have been provoked by things said or done or by both together to lose his self-control (limb 1). The jury must form a view as to the gravity of the provocation for the defendant in all the circumstances; and then (limb 2) decide whether, having regard to the actual provocation and their view as to its gravity, a person having the power of self-control to be expected of a person of the sex and age of the defendant would have done what the defendant did: see per Lord Hobhouse in R v Smith (Morgan)

[2001] 1 Cr App R 31

at [224] and per Lord Nicholls in AG for Jersey v Holley

[2005] 2 Cr App R 588

at [10] to [12].

The judge directed the jury in the following terms:

“So provocation. When considering provocation you must first ask whether the defendant was provoked at all. A person is provoked in law if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done and not just by his own bad temper. He says that it was a combination of his wife taunting him with being like his mother, whom he says she loathed, and her deriding his sexual prowess, all against the background of a disintegrating marriage. But if you are sure that the defendant was not provoked in the sense which I have just described the question of provocation does not arise and he cannot rely upon it. But if you conclude that he was or may have been provoked in that sense, you must then decide whether his loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter, and to decide this you should ask this question: would a reasonable person have acted as the defendant did in response to the provocation to which he was exposed? A reasonable person in this context is a person having the power and self-control of an ordinary male of the defendant’s age and any other characteristic, any other relevant personal characteristic possessed by the defendant. He was sixty-two, almost sixty-two and it is said on his behalf that there are circumstances in his background which might make him particularly sensitive to disparaging observations about his mother and about his impotence. Depending what you find in relation to him that characteristic is one which you should take into account if considering the question that I have posed. Would a reasonable person sharing his characteristics have acted as he did in response to the provocation to which he was exposed? The reasonable man of whom I am speaking is a reasonable sober man. The effects of drink are not appropriate to be taken into account.”

[52]Mr Fitzgerald submits that the judge failed to make it clear to the jury that, in determining whether the appellant lost his self-control (limb 1), they had to have regard to the gravity of the provocation for him. The appellant’s case was that the deceased’s taunting of him in relation to his mother and his impotence were particularly wounding and that this was an important element in his case on provocation. The gravity of the provocation explained why he lost his self-control (limb 1). It also formed the basis of the submission that a person having the power of self-control to be expected of a person of the sex and age of the appellant, subjected to provocation of such gravity would have acted as the appellant did (limb 2).

[53]There is no criticism of the judge’s direction in relation to limb 2. The short point made by Mr Fitzgerald is that the judge did not direct the jury that, in determining whether the appellant did lose his self-control, they should have regard to the gravity of the provocation (if they thought that what the appellant said about the taunts was or may have been true).

[54]In our judgment, there is no substance in this criticism. The judge reminded the jury that the appellant’s case was that “it” (ie the provocation) was a combination of the deceased’s taunting his with being like his mother and her deriding his sexual prowess. It is true that he did not spell out at this point that the jury should consider the gravity of the provocation for the appellant with his sensitivities in deciding whether appellant lost his self-control. But the jury could have been in no doubt that they had to consider the gravity of the provocation for that purpose as well as for the purpose of deciding whether a person having the power of self-control to be expected of a person of the appellant’s sex and age, who had been subjected to that degree of provocation, would have acted as the appellant did. At two points later in the summing up, the judge reminded the jury that it was the defence case that appellant was especially sensitive to taunts about his mother and his impotence. At page 52A, he said: “The Defence, relying on Dr. McKenzie, say that the defendant would be especially sensitive to the taunts concerning his mother and his impotence. The Prosecution say you will find nothing about taunts in the interviews with the English or the French police, and they simply did not occur. Those were things said.”55. At page 71B he said: “Mrs. Radford stressed the extreme vulnerability to remarks about his mother and about his impotence, citing the restaurant incident and the bugging and Dr. McKenzie’s analysis of his personality. Try, she stressed, to see the case through the defendant’s own eyes. His wife had decided on divorce. She taunted him. It provoked him to a sudden loss of self-control. Find him, she said, not guilty of murder but guilty of manslaughter.”

56. The jury could have been in no doubt that, in deciding whether he lost his self-control, they had to have regard to the gravity of the provocation. In this case, that meant that, if they found that he had been, or may have been, subjected to taunts as alleged by the appellant, they had to consider whether those taunts were especially wounding and provocative to him in view of his vulnerability to remarks about his mother and his impotence. We reject this ground of appeal.

Grounds 3B and 5

[57]It is convenient to take these two grounds together, since they depend on fresh expert evidence. Before the trial, the defence had obtained reports from two consultant forensic psychiatrists, Dr Joseph and Dr Alcock. Dr Joseph had seen the appellant on 13 and 29 March 2006. Dr Alcock had seen him on 5 July 2006. Dr Joseph said that the appellant was not suffering from a depressive illness or any other psychiatric condition at the time of the killing and there were no psychiatric factors to be taken into account by the jury when deciding whether he was acting in self-defence or in response to provocation. In his report, Dr Alcock focused on the question whether the appellant was suffering from a depressive illness at the time of the killing. He concluded that the appellant was not suffering from a significant clinical depression and said that the “symptoms” of low mood, poor appetite, poor sleep and reduced concentration described by the appellant are often seen in individuals who are struggling to cope with difficulties in their lives without being mentally ill. Neither doctor was called to give evidence. Instead, Dr MacKenzie, a consultant forensic psychologist, was called to give evidence to support the defence case on provocation. He said that the appellant was suffering from a delusional disorder and paranoid personality disorder, and was a man for whom taunts of the kind the appellant alleged had been made to him by the deceased would have been hurtful and devastating.

[58]Late in 2007, Professor Eastman was instructed to make an assessment of the appellant. Professor Eastman is a distinguished forensic psychiatrist. He interviewed the appellant twice on 23 October 2007. His report is dated 28 November 2007. It contains a detailed account of the psychosexual and medical history of the appellant. Professor Eastman refers to the fact that there was a history of mental illness in the appellant’s family. His sister had been admitted to a psychiatric hospital suffering from depression at the age of 16; his father had tried to commit suicide at the age of 45 and had been admitted to a psychiatric hospital. His mother was also admitted to a psychiatric hospital at some stage.

[59]The report refers to several earlier episodes which in Professor Eastman’s view were of significance. The first was what the appellant described as an “emotional breakdown” in 1978 as a result of matrimonial difficulties. He suffered impotence for about one year. This episode was documented in the medical records of his general practitioner. The second was in 1988 after his mother died. He told Professor Eastman that his whole world collapsed and he became impotent again. He did not go to his general practitioner in relation to this problem and there is no documentary evidence to support it.

[60]The third episode described by Professor Eastman occurred in 2002. There is a record in the general practice records which reads “depression recurred after 20 years gap precipitated by problem with wife, won’t say exactly what…low mood, weepy, early morning wakening, anhedonia, eating, no suicidal thoughts.”

[61]The deceased first suggested a divorce in June 2005. When the appellant returned from Egypt on 13 August, she told him that she definitely wanted a divorce and asked him to move his things into the granny flat. He told Professor Eastman that he wanted the marriage to survive. The deceased arranged for the appellant to see his general practitioner because she thought he was depressed. The records show that he saw the general practitioner on 24 August. No diagnosis of depression was made by the doctor and no medication prescribed.

[62]At page 13 of his report, Professor Eastman refers to the appellant’s mental symptoms prior to the killing in these terms:

“The appellant described how, between 20th August and the end of September, he experienced what amounted to mental symptoms. He said “I went to pieces, lost all my strength, couldn’t get out of bed, couldn’t think properly, I went to work and did nothing … hit the garage door by accident but I could see my future, just like 1978 … I didn’t eat anything, kept getting lost on simple journeys, couldn’t watch television or listen to the radio and I had no idea what was on … I woke at 3am every night … I burst into tears for no reason … when I tried to go out with Myra (on 3rd September) I missed the train and I burst into tears, I said I wanted to jump (in front of the train) … I lost weight, my trousers didn’t fit.”

[63]Having reviewed the evidence given at the trial, the medical records, the reports of Dr Joseph, Dr Alcock and Mr MacKenzie, Professor Eastman expressed his opinion on diminished responsibility, provocation and the appellant’s fitness to give evidence.

[64]In relation to diminished responsibility, he said (at page 26):

“the symptoms described by the appellant to me do establish a foundation for diagnosing depressive illness and a foundation, legally, for the presence of “abnormality of mind”

. The other factors he identified in his conclusion as “suggestive of the presence of a depressive illness” beyond the history of symptoms he elicited from the appellant were (a) the fact that the appellant’s wife had made an appointment with the general practitioner on 24 August 2005, (b) the history of previous depressive illness “certainly in 1978 and probably also in 2002” (he made no reference to the alleged 1988 episode in his conclusion). That history “was a clear foundation for him developing such an illness again in response to the stresses and strains which he found himself facing leading up to the offence.” These factors led Professor Eastman to conclude that “although there was probably the basis for arguing in favour of “abnormality of mind” in terms of depressive illness….there was still likely to have been much to contest in terms of the “second limb” of section 2”.

[65]Professor Eastman went on to consider the issue of provocation. He said that the depressive illness from which the appellant was suffering at the time of the killing would have increased the gravity of the provocation constituted by the taunts about the appellant’s mother and his impotence.

[66]Mr Fitzgerald applied to us for the report of Professor to be received in evidence under section 23 of the Criminal Appeal Act 1968. We decided to hear Professor Eastman give evidence in support of his report without prejudice to whether we should formally receive it as evidence. We also heard evidence in rebuttal from Dr Joseph and Dr Alcock on the same provisional basis.

[67]Professor Eastman was cross-examined and re-examined. In the course of his oral evidence, he amplified his report to some extent. He enumerated the factors on which he relied in arriving at his conclusion that the appellant was suffering from a depressive illness of moderate severity. The factors were:(a) the account of symptoms given by the appellant (to which we have referred above);

(b) the account he gave to Dr Alcock;

(d) the history of mental illness in the appellant’s family. He derived further support from some material that he had not seen at the time when he wrote his report. This comprised first a statement made by Hayley Broadhurst in interview on 9 September 2005. She had seen the appellant on Monday 5 September 2005. She said that he looked very haggard. He didn’t look right. He didn’t look his normal self. Secondly, there was a statement dated 26 March 2009 made by Jennifer Weight, the appellant’s sister. She says that in August 2005, she was concerned about the appellant’s health. He had lost a lot of weight inexplicably. He was irritable and gaunt. He did not appear to have an appetite and seemed mentally exhausted. Finally, there was an attendance note of a statement made on 16 November 2007 by Myra Croney. She said that she and the appellant had arranged to meet on 3 September 2005 to see a show in London. The appellant seemed anxious and jittery. At the station, he said that he might as well throw himself in front of a train. She thought that he was under pressure and stretching himself too far. He was not as relaxed as he normally was. He was quieter, vague, skittish and anxious. She wondered whether something was wrong.

[68]We now turn to consider whether we should receive the evidence of Professor Eastman. We remind ourselves that the discretion to admit fresh evidence is guided by what the court considers necessary or expedient in the interests of justice, having regard in particular to the factors identified in section 23(2)(a) to (d) of the Criminal Appeal Act 1968. To the extent that Professor Eastman’s opinion is based on his own expertise, we are in no doubt that it “appears to the court to be capable of belief”. On the face of it, the evidence may afford a ground for allowing the appeal, at least in relation to manslaughter by reason of diminished responsibility. It would have been admissible at the trial. Finally, there is a reasonable explanation for the failure to adduce the evidence at the trial: it was not available to the defence at that time. The defence had obtained two experts’ reports which did not support a case of diminished responsibility.

[69]In R v Criminal Cases Review Commission ex p Pearson

[2000] 1 Cr App R 141

, Lord Bingham CJ reviewed a number of decisions of this court on the question whether to receive fresh evidence under section 23. At page 150, he referred to the unreported decision of Dodd (10 June 1971) and said of it that “the judgment did, however, reflect the scepticism with which any court would be inclined to view an attempt to reopen a conviction after a trial conducted in accordance with the professional advice of both doctors and lawyers”. At page 154, Lord Bingham referred to the decision of Ahluwalia

[1993] 96 Cr App R 133

where at page 142, Lord Taylor CJ said:

“Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism”

. In his own conclusion at page 164, Lord Bingham said that all applications to adduce fresh evidence under section 23 turn on their own peculiar facts. But he said that the cases identify certain features which are likely to weight more or less heavily against the reception of fresh evidence. These features included “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”(emphasis added).

[70]Mr Fitzgerald submits that the interests of justice are paramount and that they demand that the evidence of Professor Eastman should be received. The decision not to advance diminished responsibility at the trial was not taken for tactical reasons. It was taken because there was no evidence to support such a case at that time. He relies on decisions such as Campbell

[1997] 1 Cr App R 199

, Martin

[2002] 1 Cr App R 323

and Hendy

[2006] 2 Cr App R 489

as examples of cases where this court has received fresh evidence to support a defence of diminished responsibility where that issue was not raised at trial (Campbell and Martin) or where it was raised but was rejected by the jury (Hendy). In each of those cases, this court received the fresh evidence because it was in the interests of justice that it should be received.

[71]If there were no doubt as to the reliability of the factual premises on which the opinion of Professor Eastman is based, we would see considerable force in Mr Fitzgerald’s submission. On that hypothesis, we would have been inclined to the view that, even applying sceptical approach to which we have referred, the interests of justice demanded that the fresh evidence should be received and the appeal allowed.

[72]But for the reasons that we now give, we are of the opinion that important factual bases for Professor Eastman’s opinion are unreliable with the consequence that we are not satisfied that the opinion itself can be relied on. We have set out the factors relied on by Professor Eastman at [68] above. He said in his evidence to us that the account given by the appellant of his symptoms prior to the killing was very important. It was one of the “building blocks” on which he relied in order to reach his conclusion.

[73]In our judgment, the appellant’s account of his symptoms was wholly unreliable. It was entirely inconsistent with the account given by the appellant to Dr Joseph and Dr Alcock. It was also entirely inconsistent with the account that he gave in his evidence at the trial. There was no suggestion in his evidence that he “went to pieces” after 20 August 2005. It is true that he said that, in the period up to 24 August when he saw his general practitioner, he was not feeling his normal self and was feeling depressed. He said that his response was to throw himself into his work. But the picture that he painted of himself during the period before the killing was of a man who was extremely active and looking forward to the future. He had his hair cut and tinted. He was making holiday plans with the deceased. He was in a positive frame of mind when he and the deceased went to see Ms Pallenburg. We have already referred to the impression he made on Ms Pallenburg: see [10] above.

[74]Perhaps the most significant evidence of the appellant’s mental state during this period is the string of text messages passing between him and Myra Croney. These show that they were engaged in lively, affectionate and, at times, sexy exchanges throughout the period. Thus, for example, on 30 August, the appellant sent a text saying “Hey M’s, great time yesterday. You are simply the best. Enjoy joke below”. That evening the appellant and Myra stayed together at the Crooked Chimney. When asked in cross-examination whether they had sex, he said “in a manner of speaking, yes”. On the morning of 3 September, the appellant sent a message to Myra:

“Morning sexy. Let’s turn those xxxx into !.!. today. See you 16.00 hours your house. Love D, xxxx”

. The appellant and Myra also arranged to go to dancing lessons on 5 September.

[75]In our judgment, it is quite clear that the account which the appellant gave to Professor Eastman, and on which such reliance was placed, was untrue. It is to be noted that Professor Eastman did not consider the text messages passing between the appellant and Myra Croney. He had the transcripts of the appellant’s evidence at trial, but it seems that he did not analyse all of it. Had he done so, he would surely have seen that what the appellant said at trial was not consistent with the account that he had given to him as to his mental state in the period before the killing.

[76]As we have said, Professor Eastman also relied on the appellant’s history of episodes of mental ill health. The episodes of 1978 and 2002 are documented and beyond doubt. But there is no documentary support for the episode of 1988. The appellant did not mention the 1988 episode to either Dr Joseph or Dr Alcock. In these circumstances, we approach the suggestion that there was an episode in 1988 with a good deal of scepticism. Without that episode, there was an interval of 24 years after 1978 without any evidence of mental illness.

[77]It is true that Professor Eastman placed some weight on the fact that the deceased was sufficiently concerned that the appellant might be suffering from depression in August 2005 that she insisted that he consult his general practitioner. But the general practitioner made no diagnosis of depression. Professor Eastman conceded that the general practitioner’s assessment was a factor which tended against his own opinion, but it was no more than a factor which had to be weighed in the scales.

[78]Apart from the evidence of mental illness in the appellant’s family (which was undoubtedly a relevant factor), there was little else of substance to support Professor Eastman’s opinion. The evidence of Ms Broadhurst and Ms Weight does not take matters much further. Professor Eastman did not have this evidence when he wrote his report and he did not make much of it when he gave his evidence to us. As regards the evidence of Myra Croney that on 3 September the appellant seemed anxious and spoke of throwing himself in front of a train, we make two points. First, Professor Eastman did not have this evidence when he wrote his report and did not make a great deal of it when he gave his evidence. But secondly and in any event, we consider that this evidence is not reliable. It is wholly inconsistent with the evidence given by the appellant at trial, some of which we have already summarised. Further, it is inconsistent with what she had said in the witness statement that she made to add to the statement that she gave to the police on 12 September 2005. At page 9, she referred to the last night that she and the appellant went out together. She said that there were no trains and that she was worried as to how they would be able to get home. There was not a word about the appellant speaking of throwing himself in front of a train. On the contrary, she said: “It was a problem which he simply and calmly tried to sort out. He did not get annoyed at all”.

[79]To summarise, therefore, the most important of the building blocks relied on by Professor Eastman in coming to his conclusion that the appellant was suffering from clinical depression of moderate severity was the account given by the appellant of his symptoms in the period immediately before he killed his wife. For the reasons that we have given, that account is unreliable. So too is the appellant’s statement that there was an episode of illness in 1988. So too is the later account given by Myra Croney about the appellant’s mood on the last day they spent together. It is true that Professor Eastman was not asked how confident he would be of his diagnosis on the hypothesis that these unreliable factors on which he in fact relied were left out of account. But having regard to the emphasis placed by him on the appellant’s account of his symptoms, we are in no doubt that, on this hypothesis, he would either have withdrawn his diagnosis, or, if he had maintained it, he would have done so with markedly less confidence. Either way, we do not see how Professor Eastman would have been able to say that it was more likely than not that the appellant was suffering from clinical depression at the time when he killed his wife.

[80]It is not surprising that Professor Eastman attached especial importance to the appellant’s account of his symptoms, since the appellant was purporting to describe how he felt during the period immediately before, and at the time when, he killed his wife. Once that account is disregarded, the case in favour of a diagnosis of depressive illness at the time of the killing is substantially weakened. In fact, there were two pieces of contemporaneous evidence of the opinions of professional persons which suggested that the appellant was not suffering from depression at that time. First, there was the important evidence that the general practitioner did not consider that the appellant was suffering from depression. That is important since the appellant had consulted the doctor because the deceased thought that he was suffering from depression. This was no general check-up: the doctor was considering the very question which is now at issue. Secondly, there was the opinion of Ms Pallenberg. Although she is not medically qualified, she is a psychotherapist and her opinion is of some value. Whilst she did not engage in any kind of formal assessment of the Applicant’s mental health, she did make direct observations as to his manner and attitude which do not fit at all easily with a man suffering from an active depressive illness. Professor Eastman acknowledged that these contemporaneous opinions were factors that pointed away from a diagnosis of depression, but he considered that they were outweighed by the other factors on which he relied.

[81]For these reasons, we do not consider that we should receive the evidence of Professor Eastman. It follows that there is no support for Grounds 3B & 5. We should add that it is clear from his report (and was made clear during his oral evidence) that Professor Eastman had grave doubts as to whether, if the appellant was suffering from an abnormality of the mind, the abnormality was such as substantially impaired his mental responsibility for the killing. We have not taken these doubts into account in arriving at our conclusion on Ground 5, but we content ourselves with the observation that they fortify that conclusion.

Ground 6

[82]Ground 6 alone does not take the appeal any further. Mr Fitzgerald rightly did not make any independent submissions in support of this ground.

Overall conclusion

[83]For the reasons that we have given, we reject all the grounds of appeal that have been so ably advanced by Mr Fitzgerald and dismiss this appeal.