Coonan (Formerly Sutcliffe), R v [2011] EWCA Crim 5

[2011] EWCA Crim 5Case No 2010/3869/A8
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Hon Mr Justice Mitting
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/01/2011
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE CALVERT-SMITHMR JUSTICE GRIFFITH WILLIAMS
Between
RCrownPeter William Coonan (formerly Sutcliffe)Defendant
Mr Edward Fitzgerald QC and Mr P Bowen for AppellantMr Peter Wright QC and Mr A Darbishire for CrownHearing Hearing dates : 30 th November 2010
Judgment

The Lord Chief Justice of England and Wales:

[1]On 22nd May 1981 at the Central Criminal Court, Peter Coonan, formerly Sutcliffe, was convicted before Boreham J and a jury of 13 counts of murder. He had earlier pleaded guilty to 7 counts of attempted murder. No defence was advanced to the charges of attempted murder. There was none. In relation to the charges of murder the jury was invited to consider diminished responsibility. This partial defence was not established. The appellant was sentenced to life imprisonment (as the mandatory sentence) in respect of each murder conviction, and for the offences of attempted murder discretionary life sentences were imposed.[2]In accordance with the practice at the time, the trial judge made a recommendation for the consideration of the Secretary of State about the minimum custodial period which the appellant should serve. He referred to “the extent in geographical terms, and the depth in human terms, of the terror which you induced into the population of a wide area of Yorkshire”. He reflected on the danger that the appellant represented. He recommended that the minimum term should be 30 years. But that recommendation must be seen in the context of the judge’s observation that the sentence of life imprisonment would mean “precisely that. For reasons which I have already discussed with your counsel in your presence I do not feel that I am able to make that recommendation”. In short he did not believe that it was open to him when making a recommendation about the length of the minimum term to recommend that life should mean life. It is not clear why he reached that conclusion, and the arguments which persuaded him to it are not available.[3]When in October 1997 the Home Secretary sought a recommendation from the then Lord Chief Justice, Lord Bingham of Cornhill, as to the minimum tariff, Lord Bingham wrote to Boreham J who responded: “On the counts of murder… I now think it would have been better to have made no minimum recommendation. However that may be, I have no doubt that this is one of the rare cases where the offences were so heinous and the perpetrator so dangerous that life should mean life”.[4]Lord Bingham took a different view and recommended to the Home Secretary that the minimum terms should be 35 years. He said:
“It seems clear that when committing these crimes Sutcliffe’s mental state was disturbed, even if his responsibility for the crime was not diminished. This leads me to the conclusion that the requirements of retribution and general deterrence should be met by a term of years rather than a ruling that life should mean life. But plainly, given the number and brutality of these crimes, and their public consequences, the term should be one of exceptional length.”
[5]It is plain therefore that the trial judge took a different view to that taken some 16 years after the conclusion of the trial by the Lord Chief Justice. What is not clear is whether the Lord Chief Justice was provided with all the papers currently available to us, from before 1997, or whether he was supplied only with the short summary invariably written by trial judges in the course of preparing and explaining their own recommendations about the minimum term to be served. For some years before 1997 this generally provided the basis on which the Lord Chief Justice made his own recommendations.[6]In the end, in this case, no tariff was set by the Home Secretary. After the coming in to force of the Criminal Justice Act 2003 (the 2003 Act) he made a reference to the High Court for a minimum term to be set under section 276 of the 2003 Act in accordance with the statutory provisions in schedule 22.[7]Accordingly, just over 29 years after the appellant was convicted, on 16 July 2010 Mitting J made an order, having directed himself in accordance with the statutory provisions which governed his decision, that the appellant should be subject to a whole life minimum term: that is, in effect, that he should never be released.[8]This is an application for leave to appeal against that decision. It is not and never could be an appeal against conviction. In particular neither the reference by the Home Secretary to the High Court, nor this application for leave to appeal against Mitting J’s decision provides the opportunity for, and it is not and never could constitute an appeal in which the verdict of the jury might be called into question. This consideration is of fundamental importance in the present application: Mitting J, like us, was bound by the verdict of the jury. Its correctness was not and is not open to argument. Judges making the assessments under schedule 22 of the 2003 Act cannot impose a sentence which would reflect a defence which was not established when, as a matter of law, it should have been established by the defendant, or superimpose their own judgments on issues of provocation and self defence, contrary to the verdicts of the jury. This is not an issue of res judicata. It is simply that where, as here, Mitting J was making an assessment of the appropriate minimum term following a conviction nearly 30 years ago, the verdict of the jury is unassailable and not open to compromise.[9]The offences committed by the appellant are notorious. Mitting J outlined the circumstances of the offences in very brief form. We shall gratefully adopt his summary. “(i) On 5 July 1975 in Keighley, the Respondent attacked Anna Rogulskyj in the street, causing two depressed fractures of her skull. I do not know for certain what weapon or weapons were used, but it was the Respondent's habit to take with him a ball pein hammer and sharpened screwdriver with which to carry out the attacks. Her injuries are consistent with the use of a hammer. ii) On 15 August 1975 in Halifax, he attacked Olive Smelt in an alleyway, causing two depressed fractures of her skull and two lacerations across her back. She was found face down with her skirt pulled up. iii) On 27 August 1975, he attacked Caroline Tracey Browne, a 14 year old, in a lane outside the small town of Silsden, striking her repeatedly on the head with a blunt instrument.” It is to be noted that this girl was not a prostitute. It is also significant, although on the appellant’s behalf it was urged at all times that it was simply coincidental, that when the appellant decided to confess his crimes to the police in what may appear to have been a logical and well remembered sequence, he omitted any reference to this particular crime. “iv) On 30 October 1975, in Leeds, he murdered Wilma McCann, fracturing her skull and stabbing her fifteen times to the throat and trunk. Nine stab wounds were grouped around the umbilicus. When found on an embankment, her jacket and blouse had been torn open and her bra pushed up, exposing her breasts. v) On 20 January 1976, in Leeds, he murdered Emily Jackson, causing two depressed fractures to her skull and fifty two stab wounds, inflicted by a screw driver, to her chest, abdomen and back. Her coat and dress were pulled above her waist. There was a boot imprint on her thigh. vi) On 9 May 1976, in Leeds, he attacked Marcella Claxton, striking her several blows from behind causing eight lacerations to her scalp. vii) On 6 February 1977, in Leeds, he murdered Irene Richardson, causing three severe lacerations to her skull with two underlying fractures and gaping wounds at the front of her neck and abdomen, exposing her intestines. Her boots and trousers and one pair of knickers had been removed. viii) On 23 April 1977 in Bradford, he murdered Patricia Atkinson in her flat, causing severe lacerations and fractures to her skull and small puncture wounds to her lower abdomen, extending in to her genitalia. Her jumper was pulled upwards and bra unfastened. Her panties, jeans and tights were lowered. ix) On 26 June 1977, in Leeds, he murdered Jayne Michelle McDonald, aged sixteen. She sustained depressed fractures of the skull and repeated stab wounds through the same two openings in her upper abdomen and back. In the pathologist's opinion, she did not die before she was stabbed. Her sun top was pushed up and left breast exposed. x) On 10 July 1977, in Bradford, he attacked Maureen Elizabeth Long, causing a large depressed fracture of her skull and numerous stab wounds to the trunk, one of which penetrated her liver and fractured ribs. When she was found about six and a half hours after the attack, her dress was pulled down from her shoulders and up from her waist. xi) On 1 October 1977 in Manchester, he murdered Jean Bernadette Jordan, causing eleven head wounds and fractures to the skull, striking nineteen blows to her upper body and shoulders and additional wounds to her chest and abdomen, probably inflicted after death. She was found nine days after the attack in an allotment. An attempt had been made to sever her head. She was partly disembowelled. The Respondent said that he had returned to where he had left her body, to retrieve a five pound note. xii) On 14 December 1977, in Leeds, he attacked Marilyn Moore, hitting her several times from behind to the head, causing seven or eight lacerated wounds and a depressed fracture of the skull. xiii) On 21 January 1978, in Bradford, he murdered Yvonne Anne Pearson, causing extensive fractures of her skull, lacerations to the top and back of her head and temples and two fractured ribs, believed by the pathologist, to have been caused by kicking. She was not found for over two months. Her upper clothing had been pulled upwards exposing her breasts and her pants rolled downwards. Her mouth was blocked with stuffing from a nearby settee. xiv) On 31 January 1978, in Huddersfield, he murdered Helen Maria Rytka, causing multiple fractures to her skull, lacerations to her forehead and three stab wounds to the centre of her chest. She was almost naked when found three days later. The Respondent admitted having sexual intercourse with her while she was alive. xv) On 16 May 1978 in Manchester he murdered Vera Evelyn Millward, hitting her over the head three times with a hammer and stabbing and cutting her abdomen repeatedly. An eight inch wounds exposed her intestines. Her dress and slip had been pulled up to expose her abdomen.”[10]Until then, with the exception of the attack on Caroline Browne, each of the victims were women who were or were said by the appellant to be prostitutes, encountered in red light districts. There was then a pause of just under a year before the next series of attacks. None involved prostitutes, and when he was first interviewed he did not suggest that he believed them to have been prostitutes. “xvi) On 4 April 1979, in Halifax, he murdered Josephine Whittaker, causing a fracture right across her skull, twenty one stab wounds to the front and back of her trunk, three stab wounds to her vagina through the same wound and six stab wounds to the leg. The weapon used was a sharpened Phillips screwdriver. Her outer clothing had been displaced and her knickers torn from around her right thigh. xvii) On 2 September 1979, in Bradford, he murdered Barbara Janine Leach, a student, fracturing her skull and stabbing her three times to the lower chest and four times around the umbilicus. Again, a sharpened screwdriver was used to stab the victim repeatedly through the same wounds. Her blouse and bra had been displaced upwards and the belt and zip of her jeans undone to expose her lower abdomen. xviii) On 20 August 1980, in Farsley, he murdered Marguerite Walls, a civil servant, by strangling her. She had multiple lacerations, bruises and abrasions, probably caused during a struggle. There was bruising to the abdominal muscles and three scratches to the external walls of the vagina. She sustained three fractured ribs when the Respondent knelt on her abdomen. She was completely naked, except for stocking tights. xix) On 24 September 1980 in Leeds, he attacked Uphadya Anandavathy Bandara, a doctor from Singapore, by strangling her with a rope. She sustained a fracture to the back of her skull, possibly caused by a fall, and facial injuries. Her cardigan had been pulled up around her head. xx) On 5 November 1980, in Huddersfield, he attacked Theresa Simone Sykes, aged 16, striking two blows to the back of her head, causing compound depressed fractures of her skull. xxi) On 17 November 1980, in Leeds, he murdered Jacqueline Hill, a student, causing four fractures to her skull, one of them to the right eye, penetrating into her skull and another to the inner side of the left breast. Her blouse and bra were pulled up and her jeans pulled down. She may not have died at once. ”[11]The appellant was eventually arrested on 2 January 1981, in the company of a woman. He was carrying a hammer and a knife, which he managed to hide just before his arrest. He later admitted that this woman was his next intended victim.[12]The case that the appellant suffered from diminished responsibility at the time of each of these killings was based on a psychiatric analysis of his state of mind, and the assumption that he had indeed undergone what was described as a primary schizophrenic experience. He was to tell the psychiatrists who examined him, and gave evidence at trial that, in 1967, while he was at work in a graveyard, he heard a voice which he took to be a divine voice which communicated with him repeatedly thereafter, which eventually told him that it was his mission to kill or eradicate prostitutes. If so he was acting under the deluded belief that his attacks on all these unfortunate women were divinely ordered. This formed the basis of the opinion expressed by three psychiatrists on his behalf at trial that he was suffering from an abnormality of mind properly described as encapsulated (which means hidden) paranoid schizophrenia. But, and it is a crucial “but”, it was accepted by all the psychiatrists that the diagnosis depended on the truthfulness of the appellant’s account of the divine visitation and its continuing influence over him throughout the period of these crimes.[13]It is equally clear that the trial was conducted on the appellant’s behalf by Mr James Chadwin QC, a distinguished member of the North Eastern Circuit, on the basis that unless the appellant’s evidence about events in the cemetery was accepted by the jury the defence of diminished responsibility would not be established.

The judge identified three key questions:

[14]i) Whether the appellant honestly believed that had had that experience in the cemetery, 15 years before the trial in Bingley, in 1967 (the primary schizophrenic experience). The judge summed this issue up to the jury, “The doctors all say that their diagnosis, and opinions are based, certainly in the main – I think it is fair to say almost exclusively – upon what this defendant has told them. Put in another way: they all agree that if the defendant does not establish the truth in what he has told them, their diagnosis cannot stand. The basic facts are that the doctors have founded their opinions on these have they not? First of all that he, the defendant, believed – honestly believed – that he heard the voice of God in that cemetery at Bingley. In other words, to use the psychiatrist’s words, he was hallucinating. He genuinely believed that he had heard the voice which was not there to be heard…Doctor Milne said – I detect no difference in the other doctors – this: if that is not true the diagnosis collapses. Do you remember, it was called a primary schizophrenic experience.” ii) Whether he was “deluded to believing that he had a divine mission to exterminate prostitutes? Not just a mission. Not just a mission to exterminate women, but a divine mission to exterminate prostitutes”. iii) Whether the appellant believed, at the time of each killing, or attempt to kill, that each individual victim was a prostitute, no matter what he thought before and no matter what doubt or fear he had afterwards. On these issues the judge reminded the jury that in just the same way that the diagnosis of the psychiatrist called on behalf of the defendants would fail if the jury did not accept the defendant’s account of the primary schizophrenic experience in Bingley, similarly, it would fail if at the time when he struck or killed any of his victims he did not genuinely believe that the victim was a prostitute. On the other hand, the jury were directed that if the facts asserted by the defendant were established then they might think that the defence was “made out”.[15]Although the judge directed the jury in accordance with the statutory provisions, he identified a single stark issue for decision. This is clearly illustrated by a passage at the very end of his summing up where he directed the jury:
“…in the end you may think the real question, and the one to be decisive about is;…Do we think it is more probable than not that whenever he killed he acted under a belief – a deluded belief – that he had a divine mission to kill prostitutes. If the answer to that question is yes, then you may think that his defence is made out…if you do not accept that, why then, you may think his defence clearly fails.”
[16]The correctness of this approach was underlined by the judgment of the Court of Appeal Criminal Division, dated 24 May 1982, where Lord Lane CJ observed:
“The psychiatrists all substantially agreed that in a case such as this, the diagnosis was necessarily based very largely, if not entirely, upon what the accused man had told them. Again there was a general consensus of opinion between the medical men that if the accused man really believed that what he was telling the doctors was true, namely that he was on a divinely inspired mission to kill prostitutes, then the diagnoses would be correct. There was also a consensus that if on the other hand what this man told them upon the more important features of the case was to his knowledge false and was a deliberate lie, then their diagnosis in its turn would be falsified.”
He continued:
“The matter was thrashed out at great length before the jury and the jury came to the conclusion that …this man was probably not telling the truth to the doctors and accordingly their diagnosis was falsified, through no fault of theirs.”
[17]Precisely the same situation arose when Mr Chadwin sought to develop what was described as fresh evidence before the Court of Appeal on the basis that further incidents after the conclusion of the trial lent weight to what was said by the psychiatrists advising the defendant and their diagnosis of encapsulated paranoid schizophrenia. However the court rejected the application because it was “in essence a reiteration of the same views as were previous expressed, supported by some post – trial examples of …in those circumstances the question whether this man is indeed telling the truth about these further matters again arises for decision.”[18]In reality we are being faced with the same situation which confronted the court in May 1982, although it has been developed in a different way in the context of an application for leave to appeal against the minimum term ordered by Mitting J.[19]Mr Fitzgerald began his submissions by accepting that the seriousness of this criminality called for a whole life tariff and that the only basis on which he would argue for any lesser sentence (that is, a very lengthy minimum term rather than a whole life term) arose from the mental disorder from which the appellant suffered at the time when he committed the offences. Stripped to essentials there are two connected grounds of appeal. It was submitted that Mitting J was wrong to refuse to admit the evidence of Dr Kevin Murray for the purposes of making the assessment of the appropriate minimum term, and thereafter, for failing to take account of the evidence of the appellant’s mental disorder or mental disability as mitigation of the seriousness of the offences on the basis that his mental condition lowered his culpability.[20]The essential argument before us therefore continues to be focused on the appellant’s state of mind at the time when he committed the offences. Mitting J’s decision was governed by the provisions of schedule 22 of the 2003 Act which required him to have regard to the general principles set out in schedule 21, which provides the statutory framework for the determination of the minimum term. Where the seriousness of the offence, or the combination of the offence and one or more offences associated with it, is “exceptionally high” and the offender was aged 21 or over when he committed the offence, the appropriate starting point is indeed a whole life order. Cases within this category include cases when two or more people are murdered. Every one of the murder convictions fell within this “exceptionally high” category. Where there are thirteen victims of murder, and eight more of attempted murder, all committed on separate occasions, it is self evident that the seriousness of the offences is effectively beyond description. The facts speak for themselves. The aggravating factors include a significant degree of planning or premeditation, sexual or sadistic connotations to the killings, mental or physical suffering inflicted on the victim before death, as well as concealment, destruction or dismemberment. All these features were present, but as there cannot be a term longer than a whole life term, in reality, they fall to be considered in the overall context of the horrific number of the offences falling within the “exceptionally high” category for which the appropriate minimum term had to be fixed.[21]Paragraph 11 of schedule 21, goes on to identify a number of specific matters of potential mitigation. “Mitigating factors that may be relevant to the offence of murder include – … (c) The fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957…, lowered his degree of culpability…”[22]It follows from this provision that, notwithstanding that the offender failed to establish that his responsibility was substantially diminished for the purposes of the partial defence, if he in fact suffered from mental disorder or disability which lowered his degree of culpability then this may provide an element of mitigation. We therefore agree with Mr Fitzgerald that it does not inexorably follow from the verdict of the jury that, for the purposes of assessing of the minimum term, the potential mitigation identified in paragraph 11(c) of schedule 21 was excluded from further consideration. In short, if Mitting J’s reasoning proceeded on the basis that the decision by the jury that the appellant had failed to establish diminished responsibility meant that the issue whether he suffered from relevant mental disorder or disability capable of providing mitigation was resolved against the appellant, he misread the statute. It is arguable that he did. For this reason we granted leave to appeal.[23]Mitting J’s difficulty was that he was confronted with a medical report from Dr Kevin Murray, the clinical director at Broadmoor Hospital, who had been the clinician responsible for the appellant since November 2001, which re-asserted that the jury’s verdict should have been guilty of manslaughter on the grounds of diminished responsibility, and not guilty of murder. As we have emphasised this approach was not open to Mitting J. What is more, Dr Murray’s opinion depended, in just the same way as the evidence of the conclusions of the psychiatrists at trial, on the truthfulness of the appellant’s account about the voices directing his divine mission to kill prostitutes. Mr Fitzgerald suggested that it would follow from Dr Murray’s belief in substantial diminution of responsibility that, at the very least, the appellant suffered from a level of mental disorder which lowered his culpability. But that proposition, too, was equally based on the same premise on which the psychiatrists supported diminished responsibility at trial, namely that the appellant was telling the truth about the essential matters raised by him in his defence.[24]In this context it is noteworthy that long before he became Dr Murray’s patient, the appellant believed that his “divine mission” was over. By about June 1985 he no longer believed that he had been given such a mission, and from about May 1989 he started to assert that his instructions to kill the women had come from a “diabolical rather than divine source”. In other words, any judgment made by Dr Murray himself about his patient’s creditworthiness was based on the accounts given to him by the appellant long after he had ceased to suffer from the delusions which, so he claimed at trail, led him to commit these crimes.[25]It is, of course, possible to spend time identifying a number of different theoretical reasons for the jury’s verdict. Given the burden on the appellant to prove that his responsibility was substantially diminished, it is, in theory, possible that the jury, or some of its members, may have thought it improbable, but nevertheless possible, that he was telling the truth. For the purposes of diminished responsibility, that would not be enough. However as we have already noted, it is clear from the way in which the appellant’s case was advanced and conducted at trial, the detailed summing up by the judge, as well as the observations of the Court of Appeal Criminal Division, that the only real issue for the jury (and we are concerned with the realities) was whether or not they were prepared to act on the truthfulness of the appellant’s evidence to them. If they were, then diminished responsibility was established. If they were not, it was not. The verdict of the jury demonstrated that they were not prepared to believe him, and for good reasons. Like the Court of Appeal Criminal Division, we shall identify some of them. a) On the day after his arrest, 3rd January 1981, the appellant was interviewed. He told a large number of lies. This did not merely consist of untruthful denials, but positive and carefully crafted assertions designed to mislead. In early 1985, long after the trial and after the appellant had been admitted to Broadmoor, it was recorded by the consultant responsible for his condition following his admission, and who supported the diagnosis of paranoid schizophrenia, that an incident involving a manicure set “demonstrated very clearly to me how accomplished a liar he is and this must never be forgotten”. (Our emphasis) b) When he was interviewed on the following morning, after telling some further lies, he told the police that he was indeed the Yorkshire Ripper. He was asked in terms how it had all started. He gave a lengthy description of how he had not meant to kill Wilma McCann, but she was mocking him, and after that it just grew and grew. He hit her with a hammer because he was in a rage, but he didn’t think that he meant to kill her. Then he realised that he was in trouble, so he decided to finish her off and stabbed her. He had lifted up her clothes so as to make sure that he could see where he was stabbing her. Having made further admissions he was asked if he wished to make a statement. His statement was exhibit 36 at trial. In it he described how this woman had told him he was “fucking useless”, and how this made him very angry. The statement is long and detailed. The significant feature is that there is no mention of divine intervention, or hearing voices, or acting on a divine mission. At that stage, he was saying that it was the incident involving Wilma McCann that had triggered off his murderous campaign, because she had insulted him. c) In the context of the last six victims, none of whom were prostitutes, he gave evidence to the jury that even if they were not, he honestly believed that they were. But he told the police in his statement that the compulsion inside him “seemed to lay dormant but eventually the feeling came welling up and each time they were more random and indiscriminate. I now realise I had the urge to kill any woman and I thought would eventually get me caught but I think that in my sub-conscious this is what I really wanted”. Indeed he then went on to speak of the attack on Josephine Whittaker, and said that when he saw her walking up the street “I realised she was not a prostitute, but at that time I wasn’t bothered. I just wanted to kill a woman”. This, again, is inconsistent with a divine mission to kill prostitutes. d) The next matter was the conscious decision he made that his attacks on women should be switched from the Leeds and Bradford area to Manchester. He told the psychiatrists that his reason for doing that was another delusion, genuinely held, which arose when he read a newspaper report of a priest who had described Manchester as wicked, which led him to realise that this was another divine message that he should go to Manchester to kill women there. In stark contrast, when he spoke to the police, he told them that the reason for changing his area of operations was that things were “hotting up” in Leeds and Bradford. This therefore was his first and important explanation for the changed pattern of attacks. e) It was a feature of the attacks on many of these women that some of them, at any rate, were subjected to sexual humiliation and degradation. We do not propose to identify all the cases, but the attacks on Irene Richardson, Patricia Atkinson, June Jordan, Yvonne Pearson, Helen Rytka, Josephine Whittaker, Marguerite Walls, had particularly striking sexual elements. The jury are likely to have doubted, as we do, whether the infliction of some of these injuries and the sexual ill-treatment of the victims came anywhere within the divine mission which he claimed to be fulfilling. In order to underline the significance of this aspect of the case, we must refer to just one section of the appellant’s confession, to the murder of Helen Rytka. “I hit her a furious blow to her head which knocked her down. She just crumpled like a sack. She was making a loud moaning sound so I hit her a few more times on the head…she had stopped moaning but she wasn’t dead. I could see her eyes moving. She held up her hand as though to ward off any further attack from me. I told her not to make any more noise and she would be alright. By this time I was aroused sexually so I had intercourse with her. I just undid my flies. I spread her legs out and did it. It only took a few minutes before I ejaculated inside her”. In his evidence the appellant told the jury that he had behaved in this way in order to avoid any suspicions about his behaviour which might had been engendered in two taxi drivers who were not very far away. Whether the jury believed that or not, the fact was that this violent attack and its effect caused him to become sexually aroused, and led him to rape his helpless victim. f) A prison hospital officer, supervising the appellant during a visit by his wife before trial, reported that he told her that he had given the police the details of the offences. He said that he expected to receive 30 years’ imprisonment, but if he could make people believe that he was mad, he would be detained in what, according to the witness, he described as a “loony bin”. It was open to the jury to accept the evidence of the prison officer that, contrary to the appellant’s assertion, his wife was not distressed during the visit and the appellant did not appear to be trying to reassure her and comfort her. g) Shortly thereafter, and shortly before the trial, the ward report of another prison officer stated that the appellant was “arrogantly confident” that a plea of diminished responsibility would be accepted, that he would be incarcerated or no more than 10 years, and maybe less, and that the psychiatrists had told him that that was the length of detention necessary in order to satisfy the public. When he gave evidence the appellant denied having spoken the words attributed to him.[26]In short, in the context of the evidence from the trial there were ample reasons why a jury would have been likely to reject the appellant’s account of his divine mission. The constant reiteration of his account over succeeding years did not, of itself, make it any more credible.[27]These provide some of the essential features of the context in which we examined the detailed report from Dr Murray, including his earlier report which, in effect, begins the analysis of the issues from before the start of the appellant’s murderous offending. They set out the now very long history of psychiatric analysis of the appellant in the context of the assessment of the risk he posed to public safety. The broad conclusion of many psychiatrists is that the appellant suffers from chronic mental illness – a diagnosis first made in 1983/4, and therefore given considerable emphasis by Mr Fitzgerald - and there is broad support for the proposition “that the offences had arisen directly as a consequence of mental disorder”, for which the appellant has been treated. Anti-psychotic medication was provided on the basis that this was necessary treatment for schizophrenia, without which, again as Mr Fitzgerald underlines, the treatment would have been unlawful.[28]We also note that Dr Murray fairly acknowledged the reservations about the mental disorder explanation for the appellant’s offending by Dr Adrian Berry whose scepticism is based on the appellant’s “capacity for anger and violence in the course of his assaults”: the sexualised nature of “two” of his offences; (we would merely suggest that there were many more such cases); and the unusual development of the reported symptomatology; that is “benign from 1967 to 1969, followed by a couple of incidents; intrusive from 1969 to 1975 but not irresistible; irresistible between 1975 and 1981 and then continuing until 1993 without incident, before … anti-psychotic medication was introduced”. Dr Berry noted the appellant’s ability to deceive those around him and the possibility “that his apparent symptomotology was a convenient explanation for his offending, allowing him to receive treatment rather than punishment and to locate responsibility for his actions on to an illness”. These observations did not represent a formal assessment of the case, and the views expressed by Dr Berry should, according to Dr Murray, be seen as a statement recording “a preliminary view rather than a final position”.[29]Two psychophysiological assessments were made. The penile plethysmography (PPG) assessed the appellant’s response to stimuli of a violent or sexual, or sexually violent nature. It was followed in May 2006 by the polygraph examination (known colloquially as the “lie detector”) carried out in the context of a research programme regarding the utility of polygraph techniques in the assessment of the truthfulness of accounts of their behaviour given by post-conviction sex offenders. The PPG provided no indication of deviant arousal, although the diabetes from which the appellant was suffering “may have impaired his responsiveness”. The polygraph examination was directly related to the issues raised at trial, and in particular the account of events in the graveyard in Bingley in 1967. The conclusion was that the appellant was not being “completely truthful” in his replies. Like the PPG it would be unwise to regard this test as determinative because it is accepted that a proportion of these tests are “wrong”. Nevertheless those responsible for the polygraph tests believe that the process produced results which were “reliable if not infallible”. Dr Murray’s view is that in the light of all the other evidence the test represents a “false negative”. He remains persuaded “of the validity of the psychosis explanation” although he now holds it with “a little less certainty than previously”.[30]We must now return to the submission advanced by Mr Fitzgerald on the basis of paragraph 11(c) of schedule 21, mental disability or disorder. The question is whether the appellant was subject to mental disability or disorder which did in fact constitute any, and if so how much mitigation for his offences. In other words, such disorders do not of themselves automatically lower the degree of the offender’s culpability: often they will, but not necessarily. If they do, then their degree and their possible impact as mitigation must be assessed in the overall context of the entire case, including all its aggravating features.[31]An interesting debate followed in the course of which Mr Fitzgerald submitted that it was for the Crown to disprove mental disorder as a mitigating factor within the context of paragraph 11(c) of schedule 21 of the 2003 Act, and that it must do so to the criminal standard of proof. Our attention was drawn to a number of authorities both in the Court of Appeal Criminal Division, the Privy Council, and the Constitutional Court in South Africa. We mean no discourtesy to the submissions, but we do not believe that they advance the argument, certainly where they were concerned with legislative provisions directly concerned with the circumstances in which the death penalty was to be imposed.[32]Returning to first principles, we do not agree that the court is obliged to accept matters advanced to it as mitigation unless the prosecution disproves them. Of course, in a case in which the sentence depends on prescribed statutory formulation of features which, if established, would result in a heavier sentencing regime, or a minimum sentence, the ingredients must be established by the prosecution to the criminal standards. One obvious example, far removed from this case, is the obligation on the court to impose a minimum term when the defendant is said to be what we shall describe as a “repeat offender”. If he denies the convictions which would establish that he is indeed a repeat offender, the prosecution must prove that he is. The same principle would apply when the question to be decided is the presence or otherwise of a particular feature of a murder case which, in accordance with schedule 21 of the 2003 Act, would elevate the starting point for the assessment of the minimum period from, say, 15 years to 30 years. To the extent to which issues such as these may be said in a very broad sense to constitute mitigation, the prosecution must disprove them. However, many matters raised in mitigation are personal to the defendant himself and extraneous to the prosecution, or, as in this case, notwithstanding the expert psychiatric evidence, are advanced or depend on the truthfulness of what the defendant is saying, or what is asserted on his behalf. For example, it may be submitted in mitigation that the defendant is totally remorseful. Of itself that does not create a burden of disproof on the prosecution. If there may be an element of genuine remorse, the sentencing judge will evaluate its extent and take it into account as far as he considers that it goes. Similarly, it may be suggested in mitigation that the defendant is physically infirm or that for health reasons a custodial sentence would bear disproportionately heavily on him. This is a matter for evaluation by the judge, but very rarely indeed for refutation by the prosecution. In circumstances like these, a factor advanced by the defendant as potential mitigation does not fall to be elevated into a probability because it is not disproved by the prosecution.[33]The sentencing process is not mathematical. Self-evidently factors which do not constitute aggravation should not be treated as if they were, but equally facts which do not constitute mitigation should not be treated as if they do. Criminal activity which has not been proved should not be treated as aggravation, but equally matters advanced in defence which, by the jury’s verdict, have been rejected, cannot constitute mitigation. As applied in the present case, Mr Fitzgerald’s submission that the prosecution is obliged to disprove matters of mitigation raised by the defence would, if carried through to its logical conclusion, have required Mitting J and would now require us, to convert a defence of substantial impairment of responsibility rejected by the jury into a mitigating feature of identical substance, to be reflected in the assessment of the minimum term. In other words, for the purposes of sentence, the appellant’s mental responsibility would have to be treated as substantially impaired when, for the purposes of his convictions for murder, this contention was rejected. On any view that would be a surprising conclusion. In fact, as we have explained, the legislative structure of paragraph 11(c) specifically addresses this issue, and permits allowances to be made in mitigation for mental disorder or disability not amounting to the substantial impairment of responsibility involved in the defence of diminished responsibility. These are not matters of disproof by the prosecution.[34]Moving from Mr Fitzgerald’s broad submission, we must return to the facts of this particular case. As we have indicated, we do not accept that the effect of the burden of proof in the context of diminished responsibility should lead us to approach the decision of the jury as if diminished responsibility was neither established by the defendant, nor disproved by the prosecution. The entire case, whether of substantial impairment of responsibility for the purposes of trial, or indeed mental disorder as potential mitigation for the purposes of paragraph 11(c) of schedule 21, depended and continued to depend on the appellant’s assertion that his actions were the result, as he genuinely believed, of divine inspiration. It is clear to us that this account was rejected by the jury.[35]The hearing before Mitting J was not a review of an earlier decision, but an assessment made now, in 2010, in accordance with the provisions of schedule 22 of the Act, which is directed to the seriousness of the offence or offences and the general principles, including features of aggravation and mitigation to be found in schedule 21 which, certainly in 1981, were not the subject of express statutory provision,[36]The vast gap between the date when the life sentence was imposed and the date when the minimum term comes to be assessed is obviously problematic. Although an assessment of the seriousness of the offence or offences is required, the eventual assessment is not being made by a judge who was the trial judge. So he must work on all the available written material without seeing and hearing all the evidence for himself. In making his assessment he must draw the appropriate conclusions from the formulation of the directions and summing up to the jury, the verdicts of the jury as well as any observations by the trial judge and later by the Lord Chief Justice.[37]In this case Mitting J was required to take account of the fact that the analysis of appellant’s state of mind at the time of the crimes was one which on entirely reasonable grounds the jury was not prepared to accept. No other or additional basis for the appellant’s asserted mental disorder or disability beyond that investigated at the trial has been identified and no new, previously unappreciated mental condition to which he may have been subject has been revealed. In other words, the passage of time does not make the appellant’s account at trial of how he came to commit these offences any more likely to be credible now than it was then.[38]We are not, of course, suggesting that the man who perpetrated these crimes was in any ordinary sense of the words “normal” or “average”. The sheer abnormality of his actions themselves suggest some element of mental disorder, and this no doubt formed part of Lord Bingham’s reasoning when he observed that the appellant’s mental state was “disturbed” when he committed these crimes. There is however no reason to conclude that the appellant’s claim that he genuinely believed that he was acting under divine instruction to fulfill God’s will carries any greater conviction now than it did when it was rejected by the jury. In any event although the bare recital of these offences, particularly recited one following another, may by the simple process of virtual repetition diminish their impact, when taken on their own, many of them, and more realistically, an examination of the entire catalogue of the offences as a whole demonstrate that this was criminal conduct at the extreme end of horror. Each of the attempted murders, as well as each of the murder offences, taken on its own was a dreadful crime of utmost brutality: taking all the offences together we have been considering an accumulation of criminality of exceptional magnitude which went far beyond the legislative criteria for a whole life order. Even accepting that an element of mental disturbance was intrinsic to the commission of these crimes, the interests of justice require nothing less than a whole life order. That is the only available punishment proportionate to these crimes.[39]We note that in his written submission, Mr Fitzgerald referred to the progress made by the appellant in response to the treatment he is currently receiving at Broadmoor Hospital, which it was suggested rebutted the assessment that the appellant is “uniquely dangerous”. The submission was not developed in oral argument, but, as it seems to us, the question whether, in the most exceptional circumstances, any allowance should be made against the minimum period ordered by the judge for a defendant’s general progress in custody by a small reduction in the minimum term can rarely have any application to the case where, just because of the exceptional seriousness of the offending, for the purposes of punishment the whole life term has been imposed.[40]This appeal is dismissed.