Brown v R. [2011] EWCA Crim 1606

[2011] EWCA Crim 1606Case No 200905140D4IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Forrester
T20087033
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/06/2011
Before
LORD JUSTICE LEVESONMR JUSTICE KEITHHIS HONOUR JUDGE PERT Q.C.(sitting as a judge of the Court of Appeal)
Between
DELROY BROWNAppellantTHE QUEENRespondent
Mr Toby Long for AppellantMr Peter Kyte Q.C. for CrownHearing Hearing date : 10 June 2011
Judgment
[1]On 3 October 2008, following a trial at the Central Criminal Court before His Honour Judge Forrester and a jury, Delroy Brown was convicted of murder and sentenced to life imprisonment with a minimum term of 20 years less time spent on remand specified under s. 269(2) of the Criminal Justice Act 2003. His application for leave to appeal against conviction based upon fresh evidence (along with an application for the necessary extension of time) has been referred by the single judge to the full court; other grounds of appeal were refused. In relation to his conviction, we grant an extension of time and leave to appeal. A more recent application for leave to appeal sentence has been referred by the Registrar.

The Background

[2]The background to the attack in this case was said to be a comparatively trivial incident which took place on 10 January 2008. Khalilulah Naseri (“the deceased”) who was aged in his mid twenties, worked at his uncle’s greengrocers (M.S. Naseri) situated at 45 Electric Avenue in Brixton Market. On that day, there was an incident in which the deceased had witnessed the appellant removing an orange from the fruit displayed in the street and proceeding to peel it. He then approached the appellant and challenged him to pay for the orange; an argument ensued and a number of staff from the greengrocers and other nearby shops became involved.[3]The prosecution alleged that the argument led to the deceased being hit with a blunt object which might have been a broom handle while, at the same time, two other members of staff were also injured. The appellant then went to a parked Renault Laguna motor car (registered in the name of his wife) and took a hammer from the boot. He then threatened the deceased saying “I’m going to kill you. I’m going to take your head off with a hammer.” The incident was defused by a female and the butcher from next door taking the hammer away from the appellant. As the appellant drove away from the scene he said something like “I will return, this is not over, I am coming back for you” or “I’m coming back for your blood”.As a result of the incident the greengrocers closed early, but at 7.15 pm to 7.30 pm that evening, a group of four black males carrying metal bars was seen approaching the shop along Electric Avenue. A witness said that the “orange man” (i.e. the man involved in the incident relating to the theft of the orange) shouted “fuck you, fuck you” and he used Jamaican patois. But he did not identify the appellant out at an identification parade. In any event, the group dispersed when two Community Support Police Officers appeared.[4]The case for the prosecution was that it was this lack of respect that led to an attack some two days later, at about 7.30 pm on 12 January 2008, when the deceased was brutally attacked by between two and four black males (including the appellant either as a principal, or as a secondary party to a joint enterprise) who approached the shop from the direction of Pope’s Road. Two other members of staff, Mr Hussainkhail and Mr Hamid, were also attacked with a baton and a knife, which caused them both to fall to the ground. In the course of the attack, while inside the shop, the deceased was hit from behind by an object that was thrown at him and he received two substantial stab wounds to his chest; his heart and liver were penetrated. Although an ambulance arrived on the scene shortly after being called at 7.36 pm, the deceased was then suffering a cardiac arrest. The stab wounds proved to be fatal and he was formally pronounced dead at 8.15pm.[5]The Prosecution relied on eye witness accounts of the initial incident on 10 January and the subsequent appearance of the four men early that evening said to show that the appellant planned to return to the scene and to kill the deceased in revenge for the orange incident. They also relied on CCTV footage after the stabbing which showed two males running away from the shop at 7.35 pm towards Pope’s Road (said to be the appellant and an accomplice) along with telephone evidence (including cell site analysis) shortly before and after the murder. In that regard, the prosecution also put weight on the inference to be drawn from the fact that the appellant admitting changing his clothing and then washing the top he had been wearing (which had a distinctive logo and came from a batch of less then 100 garments of that type), at a time which was in fact shortly after the murder had taken place: the CCTV footage showed a black male running away from the greengrocers wearing a similar top to the one which the appellant had been wearing.[6]The CCTV was also important in other ways. There was a reconstruction of events after the stabbing and an expert in image analysis concluded that the degraded pattern on the appellant’s top was entirely consistent with the degraded pattern of the dark top which was seen on the original CCTV footage. CCTV footage taken at 7.36 pm from Atlantic Road of the blue Honda motor car also placed the appellant in the immediate vicinity of the scene.[7]Although the prosecution accepted that there were some inconsistencies in the accounts given by eyewitnesses, reliance was also placed on what it was contended were lies told by the appellant as to the relevant events. Thus, it was said that he had given three different versions of events (two in police interview and one from the witness box) and his version of events was not credible. We shall return both to the interviews and the evidence of the appellant the proper assessment of which lies at the foundation of this application.[8]In short, the defence casewas that although the appellant had been involved in the altercation in relation to the orange, he was not part of the group that attacked the deceased. Rather, he had driven past the shop in a blue Honda which he had borrowed from a friend minutes before the killing in order to go to a nearby street to smoke cannabis. He gave evidence in his own defence that at the time of the killing he was alone in his car, smoking cannabis and he was joined by a male called Mark who by chance was looking for someone to help start his car.He maintained that he changed his clothing after the murder because it was greasy as a result of him having been working on two cars.[9]As for his interviews, he had not deliberately lied but suffered from learning difficulties (which included his inability to read road signs or tell the time). This deficit had prevented him from giving his account with the consistency to be expected of someone with greater intelligence; it had also made him suggestible during the course of lengthy interviews. These factors had caused his account of events to become distorted. The prosecution had sought to counter that contention by suggesting that the appellant had a far better understanding of things than he had pretended to have.[10]The defence also put weight on the fact that the identification of the appellant was unreliable, given that out of all the eyewitnesses, only one witness, Mr Ahmadzai, had positively identified him in an identification parade. In reality, there were also other candidates for this murder and, in consequence, the prosecution had failed to prove their case. Thus, the issue for the jury was whether they could be sure that the appellant had been correctly identified as being part of the group of males that entered the shop and whether he had the necessary intent to be convicted of murder, either as a principal or as a secondary party to a joint enterprise.[11]The issue about the level of the appellant’s intellectual functioning caused the judge to remind the jury about the respective arguments advanced by the prosecution and the defence. Having told the jury that it was agreed that the appellant was “illiterate” and “not very bright”, the judge went on to say that the prosecution’s case was that the appellant:
“… is not as dim as he pretends to be; in other words he is attempting to persuade you that he is much less able to understand events than he appears” whereas the defence said that the appellant: “… was doing his best at all times, and if he appeared unconvincing in the witness box, why that is not his fault because he has genuine problems, including difficulty in concentrating.”
[12]The judge made it clear that this was an issue for the jury to consider. He said:
“You heard the submissions of both counsel. You have seen him. You decide. Is he dissembling before you, or may his demeanour and answers to questions have been wholly genuine?”
[13]Two other passages in the summing-up are also relevant. In telling the jury that they should “make allowance for any natural understandable reasons” for any inconsistencies in a witness’s evidence,

the judge added:

“In the case of the defendant, I have reminded you to make allowance for the fact that he is the only witness on trial and also for any possible lack of understanding. If you think there may be a natural good reason for his asking questions to be repeated of course you will not hold it against him. You saw him and you heard him, you know a fair amount about him, you make up your own minds.”
[14]Further, when the judge was giving the jury the conventional direction about how they should approach the evidence of a defendant who they thought had told lies, the judge said that it was submitted on the appellant’s behalf that “… he has made errors which were brought about by his own difficulties, he is not able to tell the time for instance. Also, submits the defence, he was influenced by the way questions were being put into simply going along with the officer who was suggesting times to him …”[15]It was common ground at the trial that, in the light of the evidence, the issue of manslaughter did not arise and the only question to be left to the jury concerned participation in murder. In addition to the standard directions about joint enterprise, the judge made it clear: “The prosecution allege that this offence was planned in advance … [I]t is alleged that the defendant had a grievance against the staff at Naseri because of the events of 10 January and decided to act in revenge; that is the allegation. It was for this reason that he and others as alleged – possibly a total of four on the evidence – … that these persons went to the greengrocers on the evening in question and attacked the staff there, killing not just one person but killing one person and injuring two others. … So, allege the Crown … it was not a spontaneous act of violence arising on the spur of the moment as sometimes may happen in a street fight. That is not the allegation in this case at all. It was planned in advance and agreed to by those involved.[16]The judge went on to make it clear that if the knifeman went beyond anything which the defendant had agreed or realised he might do, the knifeman alone was responsible but if the defendant knew that the knifeman was carrying a knife and might act in the way he did with intent to kill the deceased or cause him grievous bodily injury, by participating in the attack he had accepted the risk that the knifeman would act in that way and was responsible accordingly. He put the issue in this way:
“As you appreciate, the prosecution’s case, hotly disputed by the defendant, is that this case is all about the defendant’s grievance; that it was he who intended serious revenge for his personal public humiliation on 10 January. Therefore it was his plan to cause at least really serious bodily harm to the staff at Naseri, if not to kill one or more of them, that he was present at the scene with one or more accomplices playing a part in the joint enterprise, either as the knifeman or participating by encouragement and that as a consequence of the joint actions of a number of people, those others unknown within the particulars of Count 1, Khalil was murdered. …Is that proved, or may the defendant, as he says, have been elsewhere, playing no part in the events which resulted in the death of Khalil? Thus, may the men involved, two or four, whatever it is, may the men involved have been other men with some other grievance against the staff at Naseri; perhaps, submits the defence, the earlier incident involving the mango on 5 January, about which one of the prosecution witnesses spoke.”
[17]In the event, the jury resolved those issues against the appellant and he was convicted of murder.

Expert Evidence

[18]Following the trial, it has become clear that his then legal team advised that there were no grounds upon which an appeal against conviction could be mounted. With the assistance of his family, the appellant then changed solicitors and his new solicitor instructed a consultant clinical psychologist, Dr Bradley Mann, to examine him. Dr Mann saw the appellant on 14 July 2009, and his report shows that, on the tests he conducted, the appellant had an IQ of 58. Only 0.3% of people of his age have an IQ as low as that, though “despite that” the degree of his learning disability should nevertheless be characterised as mild. Dr Mann concluded that the appellant would have had “difficulty in being able to fully appreciate the consequences of being associated with others planning criminal activity or even the consequences of his presence during the incident”.[19]As part of the application to call Dr Mann, it was argued that if a report along these lines had been available to the defence before the trial, three consequences would have followed. First, an application to exclude the evidence relating to the appellant’s interviews by the police would have been made, and was likely to have been successful, not least because the appellant did not have an appropriate adult with him to whom he could look for advice and support. Secondly, it is submitted that both the examination-in-chief and cross-examination of the appellant, as well as his treatment by the judge, would have been more sensitive to the level of his intellectual functioning than had in fact been the case; this would have led to a rejection of the proposition advanced by the Crown that the appellant was not as dim as he appeared to be. Third, the evidence would have impacted on the approach to issues of joint enterprise. To deal with this evidence, the Crown have obtained reports from Professor Gisli Gudjonsson, a clinical forensic psychologist and Professor of Forensic Psychology at the Institute of Psychology, King’s College, London,. We decided to admit the evidence of both witnesses de bene esse.[20]It is appropriate to start any analysis with a clear enunciation of the way in which the court must approach this type of evidence. The governing principles are well known and set out in s. 23 of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, (“the 1968 Act”) in these terms:
“23.─ (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 appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to─ (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
[21]The ambit of the provision in relation to expert evidence has been much trodden over recent years but is now clear. It is clearly expressed in R v Steven Jones [1997] 1 Cr. App. R. 86 by Lord Bingham CJ when he said (at 92G):
“The Court has in the past accepted that section 23 may apply to expert evidence, and we would not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. But it seems unlikely that the section was framed with expert evidence prominently in mind. The requirement in subsection (2)(a) that the evidence should appear to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive but which is unlikely to be thought to be incapable of belief in an ordinary sense. The giving of a reasonable explanation for failure to adduce the evidence before the jury again applies more aptly to factual evidence of which a party was unaware, or could not adduce, than to expert evidence, since if one expert is unavailable to testify at a trial a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standard and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury.”
[22]Thus, the first stage is to consider whether evidence which may have been heard de bene esse should, in fact, be received either because it satisfies the criteria set out in s. 23(2) of the 1968 Act which, in the context of this case concerning expert evidence, is likely to mean whether there is a reasonable explanation for the failure to adduce the evidence at trial or whether it is appropriate to go beyond the particular considerations set out in s. 23(2) to the wider interests of justice. If a decision is made to receive the evidence, the second stage is to determine whether it appears to the Court that the evidence affords any ground for allowing the appeal on the basis that although contained within s. 23(2), if it does not afford a ground for allowing the appeal, the material takes the case no further.[23]The grounds for allowing an appeal have been considered in a large number of recent decisions, most recently in R v. Noye [2011] EWCA Crim 650, which confirms that the correct approach is to be found in Dial & anorv. State of Trinidad and Tobago [2005] UKBC 4; [2005] 1 WLR 1660. In that case, Lord Brown of Eaton-under-Heywood who gave the judgment of the majority (the others being Lord Bingham of Cornhill and Lord Carswell) analysed the authorities and put the matter in this way:
“[31] In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ‛by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict’: R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762,[1974] AC 878 at 906, and affirmed by the House in R v Pendleton: “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].” [32] That is the principle correctly and consistently applied nowadays by the Criminal Division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730, R v. Hanratty, decd. [2002] 3 All ER 534 and R vIshtiaq Ahmed [2002] EWCA Crim 2781. It was neatly expressed by Judge LJ in R v Hakala, at para.11, thus: “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe.” “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].” “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe.”
[24]There is no doubt that Dr Mann’s report “appears … to be capable of belief” in the sense that its contents represent his views, and that any oral evidence he would have given at the trial along the lines of his report would have been admissible. In that context, it is necessary to consider why evidence now said to be relevant was not called at the trial. To that end, the appellant has waived privilege and a detailed statement obtained from leading and junior counsel then instructed.[25]In short, it is clear that the defence did not commission such a report because neither leading or junior counsel, nor their solicitors, considered it necessary. In a note signed by leading and junior counsel, it is explained:
“There was no question but that the [appellant] was uneducated and illiterate. It did not appear to us or anyone whom we were dealing with who knew the applicant that he was mentally unable to deal with the trial or the issues that arose. We spoke with him on many occasions and he came across to me [leading counsel] as a man from the country in Jamaica (my father was Jamaican); he was a simple man with a strong Jamaican accent, but not stupid. He was in his late 30s when we represented him, he had been in this country for ten years, he had worked as a mini-cab driver and as a casual mechanic. He had been interviewed by the police over an extensive period and he appeared to deal with the questions well enough. He was able to give us clear instructions.”
[26]That explanation is, of course, entirely reasonable, but we must observe that it rather undermines the appellant’s case about how significant the level of his intellectual deficit was, given that it was not observed or experienced by leading and junior counsel who had spent many hours with him, and who inevitably had discussed with him at some length both the case and the evidence; they were also clearly looking for ways to ensure that the defence case could be advanced as attractively as possible.[27]We turn, then, to the views of Dr Mann and Professor Gudjonsson. In addition to having studied their various reports, we permitted them to be cross-examined so as to reach a conclusion whether Dr Mann’s views, when considered alongside those of Professor Gudjonsson, might afford any ground for allowing the appeal. They each took the appellant’s personal history from him, and that revealed that he had gone to school in Jamaica. He had never learnt to read or write, and claimed to be totally illiterate. He had left school without any qualifications when he was 14 or 15. He had done “a kind of basic practical ‘apprenticeship’ in car mechanics” in Jamaica, which had enabled him to do simple repair and maintenance tasks. That was the work he had done both in Jamaica and since coming to the UK in about 1998. He claimed to have difficulty working out the correct change when buying something and telling the time, but he said that he had no difficulty using public transport, that he was able to look after his daughter, and he described his cooking and cleaning skills as good.[28]When it came to how the appellant behaved when he was seen by Dr Mann and Professor Gudjonsson, Dr Mann said that the appellant engaged fully in the assessment. Professor Gudjonsson agreed, saying that the appellant was reasonably friendly and co-operative. They agreed that the appellant’s level of concentration was good, Dr Mann commenting that eye contact and conversation was normal. But what came across to Professor Gudjonsson was that the appellant was “exceedingly assertive” and “confrontational”. He kept on challenging Professor Gudjonsson if he perceived that the same or similar questions were being repeated. He did not appear to be intimidated in any way. He was not afraid to express his views, and if he did not understand any of Professor Gudjonsson’s questions, he did not hesitate in saying so. He came across to Professor Gudjonsson as a strong-willed and forceful man, who had full confidence in himself, and who seemed reasonably articulate and lucid. He was able to stand up for himself. Indeed, when Dr Mann came to comment on the views of Professor Gudjonsson, he did not express surprise about the confrontational and assertive way the appellant had behaved towards Professor Gudjonsson. On the contrary, Dr Mann said that that supported the results of the tests he had carried out on the appellant and which are referred to below.[29]When it came to whether the various tests carried out on the appellant had given an accurate picture of his intellectual abilities, Dr Mann and Professor Gudjonsson were not quite of the same view. The appellant’s presentation to Dr Mann suggested that the tests which he carried out provided an accurate picture of his cognitive ability, but Professor Gudjonsson was less confident of that fact, given that the appellant had been hesitant and slow when performing the tests, and had questioned why he had had to do them.[30]Professor Gudjonsson’s impression of the appellant as an assertive, confident and strong-willed man, who was not easily led by others, was supported by tests conducted by Dr Mann designed to assess the extent to which the appellant was suggestible, whether by way of response to leading questions or when it was suggested to him that a previous answer he had given was wrong. The tests showed that he was less prone to suggestibility than the general population, and that was illustrated by the way he maintained his account during his police interviews of having been elsewhere at the relevant time, despite pressure put on him to admit that he had been present when Mr Naseri had been attacked.[31]The impression which Professor Gudjonsson had of the appellant was also supported by a test carried out by Dr Mann which was designed to assess the extent to which the appellant would do something which he was asked to do even if he did not want to do it. The test showed that he was significantly less likely to do something he did not want to do than other people. Dr Mann and Professor Gudjonsson agree that the result of this test should be treated with caution because people with a low IQ might have some difficulty understanding some of the questions which the test requires them to answer. But with that proviso, Professor Gudjonsson thought that the results of the test showed that the appellant’s comprehension of language was better than his IQ indicated (which was consistent with some of the words he used, and used appropriately, like “guarantee” and “distribute”), that he did not have a tendency to answer questions by agreeing with them whether he agreed with them or not, and that despite his apparently low intelligence, the appellant was “exceptionally robust when it comes to resisting inter-personal pressure”.[32]We return to the level of the appellant’s intellectual functioning. When Professor Gudjonsson tested it, the appellant’s IQ turned out to be 55, marginally lower than Dr Mann’s tests had revealed. Having said that, Professor Gudjonsson was doubtful whether the scores were entirely representative of his “true” intellectual ability. His low IQ score could be attributable in part to a lack of education rather than genuine intellectual impairment. His apparent lack of confidence when taking the tests may have artificially lowered the scores he obtained. And the way he expressed himself, the level of his social functioning during the assessment, the fact that he could do the basic jobs expected of a car mechanic, his verbal and comprehension skills as revealed by the “compliance” test administered by Dr Mann, and the views of his previous legal team all suggested to Professor Gudjonsson a level of intellect greater than his IQ scores indicated.[33]Although the appellant is not particularly bright, Professor Gudjonsson’s view was that he understands questions and can give coherent answers. When you speak to him, he said, it is not obvious that he has a low IQ. Indeed, Professor Gudjonsson was astonished by how “sharp” the appellant could, at times, be. For example, his assessment of the appellant was interrupted by a break for lunch. When it resumed, Professor Gudjonsson asked the applicant whether it was still the morning or now the afternoon. The appellant said that he did not know. “Surely you know whether it is the morning or afternoon?” asked Professor Gudjonsson. “Define what you mean by afternoon”, replied the appellant.[34]For his part, Dr Mann acknowledged that one’s IQ is really only the starting point when it comes to assessing intellectual functioning. It is a useful tool and provides a snapshot of cognitive functioning at the time of the assessment, but the scores have to be considered alongside observation and what Dr Mann called “functioning ability”. On the other hand, the appellant’s functioning ability had to be considered in the light of his IQ, and since his IQ suggested that he could not carry out tasks requiring a high element of intellectual functioning, the sort of tasks he would have been performing as a car mechanic had to be seen in that light. The transcripts of his interviews by the police showed that he could maintain a high level of concentration and “hold a story”, but the transcripts of his evidence at the trial showed instances of him not understanding some questions as well as poor memory, and Dr Mann said that that supported the view which he had formed of the appellant’s intellectual functioning based on his IQ.[35]We were not impressed by the examples of supposed lack of comprehension and poor memory in the appellant’s evidence which Mr Long put to Professor Gudjonsson. His failure to comprehend was not necessarily genuine, particularly as the occasions when he appeared to misunderstand the questions were times when his account was being severely tested. The things which he could not remember related for the most part to what he had said when interviewed, which had been some time previously and which he might have had some difficulty recalling (particularly if what he had said then had been untrue). As Professor Gudjonsson said, the occasions when the transcripts recorded him correcting counsel show that he was both alert and vigilant at the time.[36]Moreover, Dr Mann’s initial assessment of the appellant’s intellectual functioning had not taken account of what his legal team thought of him because, prior to giving evidence, he had not seen the note to which we have referred. When confronted by it, Dr Mann acknowledged that their view of him carried considerable weight, not merely because they had spent a lot of time with him, but also because of their experience in dealing with people going through the criminal justice system. He acknowledged that this account made his own concerns about the appellant’s ability to concentrate, to understand questions and to answer them properly more questionable. In the end, there struck us as being very little between Dr Mann and Professor Gudjonsson in terms of the appellant’s intellectual functioning, but if there was still some difference between them, we preferred Professor Gudjonsson’s assessment.[37]There is one other topic dealt with by Dr Mann and Professor Gudjonsson which we must mention. Dr Mann did not doubt that the appellant knew the difference between lying and telling the truth. Indeed, we think that Dr Mann would agree with Professor Gudjonsson that the appellant understands the potential negative consequences of telling a lie, that is to say that it may get you into trouble. But Professor Gudjonsson acknowledged that “the lying of persons of very low intelligence is likely to lack subtleties and sophistication”, and that, we think, is what Dr Mann was talking about when he said that the appellant was unable to appreciate how, if the jury thought that his account was untrue, the fact that he had in their view lied about his whereabouts would impact on the assessment of his guilt. As Dr Mann put it, the appellant “would have difficult[y] in appreciating any benefits to admitting his presence but non participation at the scene of crime”.[38]With all that in mind, we turn to the grounds of appeal to see whether Dr Mann’s evidence (when considered alongside that of Professor Gudjonsson) could afford any ground for allowing the appeal. The first is whether the evidence of the appellant’s interviews by the police would have been excluded in the light of their evidence, which would presumably have been considered by the judge on a voire dire. In written submissions, there were three limbs to the argument. First, Dr Mann thought that the appellant would have had difficulty in understanding his rights when they were explained to him by the police, and he would not have been able to evaluate the advantages and disadvantages of exercising those rights. For example, he claimed to Dr Mann that he had not been aware that he could make no comment to the questions he was asked. Secondly, Dr Mann and Professor Gudjonsson agree that the level of the appellant’s intellectual functioning meant that, had that fact been appreciated by the police, he should have been accompanied by an appropriate adult. Thirdly, Dr Mann says that the appellant told him that there had been times when he had not understood what he was being asked. Accordingly, he should have been questioned in a way which ensured that he was not left in doubt about what he was being asked, and that more effort should have been made to ensure that he knew that he should ask for the question to be repeated or rephrased if he did not understand it.[39]After Dr Mann and Professor Gudjonsson had given evidence, Mr Long took the view that he could no longer pursue a ground of appeal relating to admissibility. We agree with that stance. Although the appellant was, in fact, entitled to the assistance of an appropriate adult, when the police told him that there was special help which had to be given to people with learning difficulties or disabilities and asked if he needed this special help, he replied in the negative. He similarly denied needing the special help that was given to people who went to a special school or help for any other reason; he did, however, make it clear that he did not read very well and would need help reading documentation. In that regard, it is worth noting that the force medical examiner did not recommend that he required an appropriate adult.[40]We add that the appellant’s solicitor was present throughout the interviews and played a comparatively pro-active role; when it came to legal advice, any appropriate adult would have had to defer to the advice which the solicitor gave him, and the role of the appropriate adult would really have been to give the appellant support and non-legal advice. We acknowledge that the appellant did not have that assistance, but although we should not be regarded as underestimating the important and valuable role which the appropriate adult can play, we do not accept that it is likely that an appropriate adult would have made any impact on the course of the interviews not least because Professor Gudjonsson’s assessment of the appellant (not disputed by Dr Mann) was as a confident, assertive and strong-willed man. In that regard, R v. Law-Thompson [1997] Crim LR 674 makes it clear that the absence of an appropriate adult from interviews where a solicitor was present is unlikely, in itself, to justify excluding the interviews.[41]We turn to the way in which the appellant was interviewed by the police and dealt with in court. As to the police, the interviews were recorded, and both Dr Mann and Professsor Gudjonsson were provided with transcripts of them. Only Professor Gudjonsson analysed them in his report and concluded that the appellant had no apparent difficulty in concentrating, had been able to give “reasonably clear and comprehensible answers”, and had “apparently had no major problems with understanding the questions”. He referred to occasions when the appellant’s solicitor intervened (appropriately, in Professor Gudjonsson’s view) to clarify matters and to further communication, and to occasions when the appellant himself wanted the interviews to break off so that he could consult with his solicitor. In his evidence, Dr Mann said that he did not disagree with Professor Gudjonsson’s assessment of the interviews. We have read the transcripts ourselves (including, where necessary, the unedited version which did not go to the jury) so that we could see for ourselves, for example, how the caution was explained to the appellant and Professor Gudjonsson’s assessment of how the way in which appellant coped accords with ours.[42]Finally on this aspect of the case, before being assessed by Dr Mann, it has never been the appellant’s case (apart from what he told Dr Mann about not appreciating that he could make no comment to the questions he was asked) that he had difficulty understanding his rights or evaluating what his stance in the interviews should be. Although he has waived any privilege relating to his dealings with his lawyers, his solicitor has not said that when she explained the appellant’s rights to him, he appeared not to understand what she was saying, or appeared unable to decide whether to answer the questions he would be asked. Admittedly, he told Dr Mann that he had not realised that he could make no comment to the questions he was asked, but Dr Mann did not come to any conclusion as to whether he believed the applicant or not. Again, when Professor Gudjonsson took the applicant through the words of the caution, the applicant said that he did not understand them, but Professor Gudjonsson as well was not sure whether that was true or whether this was an example of the applicant not co-operating with him. All in all, even if this ground of appeal had been pursued, we would have been wholly unpersuaded that there was any real chance that the evidence of the interviews might have been excluded if evidence along the lines of Dr Mann’s and Professor Gudjonsson’s reports had been before the court on any application to exclude that evidence.[43]Turning to what happened in court, it is important to remember that the trial proceeded on the basis that the appellant was illiterate and “not very bright”. The appellant gave evidence over two days, and as the judge noted, the jury had a good opportunity to come to their own assessment of how bright he was (albeit that theirs was a lay assessment based on how the appellant appeared in the artificial surroundings of the courtroom). To the extent that it is said that the questioning of the appellant by counsel for the prosecution was inappropriate for someone who was illiterate and “not very bright”, it was no more inappropriate for someone with the appellant’s IQ, and certainly no more inappropriate for someone with what Professor Gudjonsson described as the appellant’s “true” intellectual ability. The allegation in relation to the judge is that when the appellant answered “sorry?” or words to that effect to questions he was asked, the judge intervened by saying “Did you not hear?”, leaving the jury with the impression that the judge thought that the appellant was being evasive, when in truth it was just his low intelligence which had caused him not to understand the question. In fact, that happened just three times during the appellant’s evidence, and we doubt very much whether the jury would have thought that the judge had thought that the appellant was being evasive. And as for the suggestion that the jury would have viewed the appellant’s evidence in a different light if they had heard from Dr Mann and Professor Gudjonsson, we do not think that they would have thought any differently of his evidence than how they would have viewed it in the light of their knowledge that he was illiterate and “not very bright”. The fact is that Professor Gudjonsson’s view is that the applicant performed “reasonably well” when giving evidence. Again, in his evidence, Dr Mann did not disagree with that assessment: neither do we.[44]We have not overlooked the suggestion made by the prosecution that the appellant was not as dim as he appeared to be, and the argument that this suggestion would have been put to rest if the jury had had the benefit of Dr Mann’s evidence. We do not agree. The jury would also have had Professor Gudjonsson’s evidence and, in particular, his evidence about the appellant’s “true” intellectual ability. If anything, the jury, when looking at the evidence of Dr Mann and Professor Gudjonsson together, would have been more likely to think that the evidence supported the prosecution’s suggestion rather than contradicting it. In considering whether the appellant’s conviction was safe despite this evidence, we have borne in mind as well the view of the appellant’s legal team which, again, was not contradicted by Dr Mann and which he accepted was an important factor to be taken into account.[45]Finally, within the context of the fresh evidence, Mr Long also contends that the new material would have impacted on the approach of the learned judge to the issue of joint enterprise. The primary case for the Crown was that the appellant was the man who had stabbed the deceased. However, in the alternative, it was contended that, if the jury could not be sure of that, the appellant was equally as guilty of murder as whoever had stabbed the deceased because he had participated in a joint enterprise whose aim was to kill the deceased or to cause him at least really serious harm. The jury may therefore have convicted the appellant of murder on the basis of the alternative case one of the issues in that case being whether the appellant had actually done anything himself which amounted to his participation in the joint enterprise either by encouraging the others to do what they did because it was he who had “set up the attack”, or accompanying the others intending to encourage the others to do what he realised they were going to do.[46]Mr Long argues that if there had been evidence from a professional about the level of the appellant’s intellectual functioning, the judge would have had to tailor his directions to the jury about whether the appellant had actually intended by his presence to encourage the others to attack the deceased to take account of any tendency on the appellant’s part, as a result of the level of his intellectual functioning, to accompany the others without thinking what the impact of his presence at the scene might have. Had the jury had to address that issue, the jury might not have been sure that he had participated in the joint enterprise, and he would have been entitled to be acquitted altogether.[47]The second point taken by Mr Long in relation to this alternative formulation of the prosecution case relates to the knife and whether, on the assumption that the appellant knew that one of the people he went to the scene with had a knife, he realised that it might be used to cause the deceased at least really serious harm. It is said that if there had been evidence from a professional about the level of the appellant’s intellectual functioning, the jury might not have been sure of that feature of the case, and that in those circumstances the judge would almost inevitably have had to have left the possibility of convicting the appellant of manslaughter to the jury.[48]Ifit would have been appropriate in the light of Dr Mann’s evidence for the judge to tailor his directions to the jury about whether the appellant had intended by his presence to encourage the others to attack the deceased to take account of the appellant having unthinkingly accompanied the others, it would have been just as appropriate for the judge to have done that on the basis that the appellant was “not very bright”. The evidence of Dr Mann would have made such a direction no more necessary than it would have been without his evidence. Equally, if it would have been appropriate in the light of Dr Mann’s evidence for the judge to have left manslaughter to the jury on the basis that the appellant’s lack of intelligence was such that he might not have realised that whoever had the knife might use it to cause the deceased at least really serious harm, it would have been just as appropriate for the judge to have done that on the basis that the appellant was “not very bright”. In this instance as well, the evidence of Dr Mann would have made such a direction no more necessary than it would have been without his evidence. In the event, we do not accept that the directions provided by the judge were not entirely appropriate and tailored to the case because they did require the jury to focus on this defendant (with all the descriptions of his intellectual deficits to which we have referred and which were identified both in the trial and the summing up) and what he intended. The jury had abundant material as to the level at which the appellant functioned: taking the broad view espoused by Professor Gudjonsson (which we have said that we prefer), we do not accept that putting IQ numbers would have helped.[49]The final point taken by Mr Long relates to the decision-making of the appellant during interview and at trial, namely, that a man of greater intelligence may have decided not to deny his presence at the scene, but to claim that he had not been a party to any plan to attack the deceased and had not attacked him himself. In our judgment, save for speculation on the part of Dr Mann, there is simply no basis in any of the evidence for this argument which, in any event, is not persuasive having regard to the circumstances in which the appellant found himself. Thus, the appellant might well have thought that if he admitted that he had been there, it would not be possible for him to deny that he had taken part in the attack on the deceased, not least because the attack followed an occasion when he clearly believed that the deceased had shown him disrespect. In these circumstances, it would have been entirely understandable for him to deny that he was there. This was far from being an obvious example of poor decision-making by a man of limited intellectual ability. Furthermore, this point might have had an evidential basis if the appellant had ever said that he had denied that he had been at the scene because he had then thought that that was the best defence he had. In fact, he has consistently maintained that he was not there and still does. It is simply not possible to approach this case on an entirely speculative basis.[50]For these reasons, we have concluded that the evidence of Dr Mann, when looked at alongside that of Professor Gudjonsson, does not afford any ground for allowing the appellant’s appeal against his conviction. In those circumstances, although we heard this evidence and the rebuttal de bene esse, we decline to admit it and the primary ground upon which this appeal has been brought (being the ground referred to the full court by the single judge) fails.

Alternative Verdicts

[51]Although we have rejected Mr Long’s contention that it would have been open to the jury to convict the applicant of involuntary manslaughter on the grounds that he took part in a joint enterprise in which he knew that a knife was involved but neither intended, nor realised, that the knife might be used to cause really serious bodily injury, Mr Long had a further argument in relation to the failure to leave an alternative verdict of manslaughter which he maintained was a free standing complaint based on the decision of the House of Lords in R v. Coutts [2006] UKHL 39; [2007] 1 Cr App R 60: he did, however, make it clear that he would not have advanced this contention in the absence of other grounds.[52]Coutts was concerned with the murder of a woman who died at the flat of the accused and whose body was found a month later on public land. The Crown alleged deliberate strangulation to satisfy sexual fantasy; the defence contended accident in the course of consensual asphyxial sexual activity. It was common ground at trial that it would be unfair to leave manslaughter as an alternative verdict but the House of Lords concluded that such a verdict was open on the evidence. Lord Bingham made it clear that the alternative had to suggest itself to the mind “of any ordinarily knowledgeable and alert criminal judge” (rather one that “ingenious counsel may identify through diligent research after the trial”); other speeches identify a similar approach.[53]In R v. Banton [2007] EWCA Crim 1847, the issue was considered in the context of a defendant who asserted that the victim was one of three aggressors who assailed her with bottles, whereupon to defend herself, she picked up one bottle and hurled it in his general direction, not intending to hurt or cause injury. Unlawful wounding was not left to the jury and, in dismissing the appeal, Toulson LJ said (at para. 21 et seq): “The foundation of the prosecution's case against the appellant was that she smashed a bottle in the complainant's face. The appellant denied it. This presented the jury with a stark question of fact. For the prosecution to have sought the appellant's conviction on a different factual basis would have been a radical departure from the case presented … The existence of some possible evidential basis for such an alternative verdict would by no means necessarily be a sufficient basis for putting it to the jury. The judge would be justified in not leaving it to the jury if he reasonably considered that it to be remote from the real point of the case … realistically it is hard to imagine that the jury would have convicted the appellant of wounding with intent unless they accepted the prosecution witnesses' account of what she did".[54]In R v. Foster [2007] EWCA Crim 2869, [2008] 1 Cr App R 470, it was emphasised that the danger highlighted in some of the speeches in Coutts concerned the risk that faced with the stark choice between convicting a defendant whose behaviour was utterly deplorable and acquitting him altogether, the jury may unconsciously but wrongly allow its decision to be influenced by considerations extraneous to the evidence but, as Sir Igor Judge P (as he then was) explained (at para. 60), that risk is not always present. Sir Igor went on (at para. 61):
“The judgment whether a ‘lesser alternative verdict’ should be left to the jury involves an examination of all the evidence, disputed and undisputed, and the issues of law and fact to which it has given rise. Within that case specific framework the judge must examine whether the absence of a direction about a lesser alternative verdict or verdicts would oblige the jury to make an unrealistic choice between the serious charge and complete acquittal which would unfairly disadvantage the defendant. In this context the judge enjoys ‘the feel of the case’ which this court lacks. On appeal the problem which arises is not whether a direction in relation to a lesser alternative verdict was omitted, and whether its omission was erroneous, but whether the safety of the conviction is undermined.”
[55]Against that background, it is necessary to consider the facts of this case. Thus, as we have recounted, the prosecution maintained that the background was the incident on 10 January which directly impacted on the appellant and which had led to his seeking to retrieve a hammer from his car whether to use offensively or defensively. There was no challenge to the evidence that the death of the deceased (and the injuries to the others in the shop) was the consequence of a concerted (and obviously pre-arranged) attack involving weapons, including at least one knife. The judge made it clear that the jury had to be sure that the appellant knew that the knifeman (assuming it was not him) was carrying a knife and might act in the way that he did with intent to kill or cause grievous bodily harm. In the context of a planned multi-handed attack with weapons, including a knife, it is simply not feasible once the jury were sure that the appellant was involved in the attack that he might not have appreciated that the knife would be used. That is doubtless why it was common ground between the extremely experienced prosecuting and defence counsel (and the judge who will have formed his own independent view) that manslaughter was not a realistic option. We agree.[56]In the circumstances, there is no basis upon which it can properly be concluded that the verdict of the jury in this case was unsafe. The appeal against conviction is dismissed.

Sentence

[57]The appellant is now 42 years of age; his only relevant previous conviction concerned possession of an offensive weapon (a knife) in public for which he was sentenced to a community punishment. The judge, however, concluded that this “vicious and cowardly attack” had involved a knife being carried in a public place and used with an intention to kill: he considered it a revenge attack after the appellant felt humiliated and disrespected. In the context of a starting point of 15 years, he found two aggravating features, namely a significant degree of planning and premeditation and the injuries caused to two others. In that context, pursuant to s. 269(2) of the Criminal Justice Act 2003, he fixed the minimum term at 20 years.[58]Mr Long submits that the judge failed to have regard, as mitigation, to the appellant’s intellectual deficit and should have reduced the minimum term; he points to para. 11(c) of Schedule 21 to the Act as identifying, as a potential mitigating factor, the fact that an offender suffers from a mental disorder or disability which, although not falling within s. 2(1) of the Homicide Act 1957 (so as to give rise to a defence of diminished responsibility), lowered his degree of culpability. The short answer to that submission is that there is no basis for concluding that this appellant’s intellectual deficit did, in fact, lower his culpability in any way.[59]Standing back, however, there is another reason why this sentence was entirely appropriate. The carrying in public of knives and their use to cause injury or death is of the very greatest public concern and, well before the amendment to Schedule 21 to the 2003 Act which included, as para. 5A, a new starting point for the use of a knife or other weapon taken to the scene (which was passed and implemented subsequent to this case and, we emphasise, is therefore irrelevant to the determination of this sentence), courts have repeated how seriously such an aggravating feature must be viewed. In the circumstances, this application for leave to appeal sentence is also refused.

Cited in 1 later judgment