Ibrahim, R. [2014] EWCA Crim 121

[2014] EWCA Crim 121Case No 201206455 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 15th January 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE SIMON
SIR COLIN MACKAY
Between
R E G I N ACrownv
Between
MOHAMMED IBRAHIM
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr M Cousens appeared for AppellantMr W Cranston-Morris appeared for Crown
J U D G M E N T
[1]This is an appeal against conviction on the ground that the trial judge wrongly excluded certain evidence. The appellant has in the past been diagnosed as suffering from Attention Deficit Hyperactivity Disorder ("ADHD"). The issue in this appeal is whether the judge should have admitted expert evidence concerning the effects of that condition.[2]One statutory provision is relevant by way of background to this appeal, namely section 76 of the Criminal Justice and Immigration Act 2008 (to which we shall refer as "the 2008 Act"). Section 76 of the 2008 Act deals with a number of defences, including in particular self-defence. Section 76 provides:
"(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question. (4) If D claims to have held a particular belief as regards the existence of any circumstances - (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not - (i) it was mistaken, or (ii)(if it was mistaken) the mistake was a reasonable one to have made. (5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced."
[3]After those introductory remarks, we must now turn to the facts. Part 2. The facts[4]Mr Assad Ibrahim and Mr Taher Ibrahim are brothers. Mr Mohammed Ibrahim, the appellant, is the nephew of Assad Ibrahim and the son of Taher Ibrahim. In the interests of brevity and simplicity, we shall refer to each man by his first name only without continuously adding the surname "Ibrahim".[5]There is a history of bad relations between Assad on the one hand and Taher and Mohammed on the other hand. On 17th May 2012 there was an encounter between Assad and Mohammed at the Continental Hotel in Hounslow. Words were exchanged and this led to a tussle. Mohammed maintains that he was pushed against a glass window. The police were called but the matter was not taken further.[6]After that incident Assad and his friend, Arif Rajah then made their way to Days Hotel nearby. Meanwhile, Mohammed telephoned his father, Taher, and asked him to come. Taher came and spoke to Mohammed outside Days Hotel.[7]Fortunately, there is a CCTV camera outside Days Hotel. This captured the sequence of events. The court has watched that CCTV film. It can be seen that after Taher and Mohammed had spoken together, Taher went inside the hotel, Mohammed remained outside. In due course both Taher and Assad came out. There was then an encounter during which Mohammed punched Assad. Assad fell to the ground and lay on his back. One can see a little later in the film that Assad's friend, Arif Rajah, stands astride Assad, lying on the ground, in order to protect him.[8]The police were called. Mohammed was arrested. Criminal proceedings followed. Part 3. The criminal proceedings[9]Mohammed Ibrahim was charged with causing grievous bodily harm to Assad contrary to section 20 of the Offences Against the Person Act 1861. Another charge was brought which was dropped and is not now relevant.[10]The defendant pleaded not guilty. He served a defence statement asserting that he was acting in self-defence. The defence statement contained a further material which was not pursued and is not relevant to this appeal.[11]Taher was also charged with two offences arising out of the same incident. Taher was ultimately acquitted. The issues concerning Taher are of no relevance to this appeal.[12]Taher and Mohammed stood trial at the Isleworth Crown Court before Mr Recorder Hobson QC and a jury. At the commencement of the trial the defendant applied to adduce expert evidence from a psychiatrist, Dr Myttas, concerning the effects of ADHD. The report which defence counsel produced at the start of the trial prepared by Dr Myttas sets out Dr Myttas' understanding of the defendant's history. Dr Myttas had not actually met the defendant, so he was proceeding upon what he had read and been told. Dr Myttas then made a number of comments about the incident. Some of these comments were based on misunderstandings of what had happened and what the defence was. More importantly, Dr Myttas discusses at some length the nature of ADHD and what its effects are.[13]The recorder considered the report of Dr Myttas. He heard counsel's application to call Dr Myttas as a witness and he refused that application. In his ruling the recorder gave three reasons for disallowing the application to adduce expert evidence. The first reason was that the application was being made far too late in the proceedings without any proper explanation. The second reason was that it was very unsatisfactory to admit expert evidence from a medical expert who had not interviewed or met the defendant. The third reason was that the report was inappropriate because it was not relevant to the issues in the case. After the recorder had so ruled the trial proceeded.[14]The prosecution called Assad, Arif Rajah and other witnesses who described the incident. The jury watched the CCTV footage. The prosecution case was that the defendant was the aggressor. The prosecution case was that this was a revenge attack by the defendant upon Assad as a result of the encounter between them earlier in the day. The prosecution case was that Taher and Mohammed went to Days Continental Hotel in order to persuade Assad to come out. When Taher had persuaded Assad to come out, Mohammed then struck him, punching him so that he fell to the ground.[15]The defence case was very different. The defendant gave evidence in his own defence. He said that Assad slapped and kicked him. He said that he punched Assad because he thought that Assad was going to attack him.[16]The problem with the defence case was that the CCTV footage showed the defendant punching Assad, it did not show Assad hitting the defendant. There is a point in the CCTV footage where the defendant's head goes backwards, the defendant moves away but then he returns and strikes Assad.[17]The defendant's grandfather gave evidence for the defence. The grandfather described the difficulties which the defendant had suffered because of his ADHD. He said that the defendant was not aggressive by nature, but rather timid.[18]At the conclusion of the case the recorder duly summed up. He dealt with the factual evidence concerning the defendant's ADHD. He gave directions concerning the legal ingredients of the defence of self-defence in standard terms. In due course the jury returned a verdict of guilty. The recorder imposed a suspended sentence of 12 months imprisonment, suspended for 18 months.[19]The defendant was aggrieved by his conviction. Accordingly, he appeals to the Court of Appeal. Part 4. The appeal to the Court of Appeal[20]Mohammed Ibrahim appeals with leave to the Court of Appeal on one ground only, namely that the recorder erred in excluding the evidence of Dr Myttas.[21]Dr Myttas' speculation about what the appellant was thinking and why he acted as he did was of no great assistance. He had never met the appellant and misunderstood the factual basis of the appellant's defence.[22]The more important part of Dr Myttas' report is his general discussion of ADHD. There are three passages upon which Mr Cousens, counsel on behalf of the appellant, particularly relies. The first passage is in paragraph 6.1 of the report and it explains that persons suffering from ADHD have poor impulse control and are more likely to act impulsively. The second passage relied upon by Mr Cousens is at paragraph 6.6. This paragraph explains that someone suffering from ADHD is likely to have an exaggerated response to threats. The third passage is at paragraph 7.4. This paragraph explains that someone suffering from ADHD has a reduced capacity to evaluate current circumstances.[23]Let us now stand back from the report and look at the issues in the trial to consider the extent, if at all, to which that expert evidence would have been relevant.[24]The principal issue at trial concerned who struck the first blow. On the prosecution evidence Assad came out of the hotel at the instigation of Taher, the appellant was waiting for him outside, the appellant struck the first blow. It must be said that that version of events gains support from the CCTV footage. The defence case was that Assad struck the first blow. He slapped and kicked the appellant. The appellant then perceived a threat from Assad and responded by punching him. The prosecution conceded at trial that if it was reasonable for the appellant to defend himself by punching, then the single blow which the appellant delivered did not constitute unreasonable force. The judge effectively directed the jury in those terms.[25]The report of Dr Myttas would not have assisted the jury one way or the other on the main issue in the case. If the appellant was the sole aggressor, then his ADHD and its possible manifestations were irrelevant. In those circumstances no question of self-defence arose.[26]Mr Cousens submits that the jury may have convicted the appellant on a different basis from that urged by the prosecution. This was that Assad did indeed slap or kick the appellant. The appellant then retreated briefly, as one can see on the CCTV. After retreating, the appellant unnecessarily returned to the fray and punched Assad. Mr Cousens accepts that for a normal person to act in that way it could not sensibly be characterised as self-defence, but he says things are different because of the appellant's ADHD. The jury might have concluded that the act of punching was not self-defence. If Dr Myttas' evidence had been before the jury they may have taken a different view.[27]After reading the evidence in this case and viewing the CCTV footage, we think it unlikely that this was the basis of the jury's verdict. Quite apart from that, however, it seems to us that Dr Myttas' evidence could only have provided slender assistance to the appellant at best. This is not a case like Seun Oye [2013] EWCA Crim 1725, in which the defendant suffered from a psychiatric condition that caused him to believe in a state of affairs which did not exist. In such case, as the authorities show, expert medical evidence is admissible in relation to the first limb of the defence of self-defence in order to establish what state of affairs the defendant genuinely believed to exist. In this case the appellant retreated after the moment when Assad allegedly (but invisibly on the CCTV footage) struck the appellant. Dr Myttas' report gives little assistance in making out the defence case that the appellant then thought it necessary to return to the fray and knock Assad to the ground.[28]Case management considerations are also relevant. The expert evidence was served late, contrary to the Criminal Procedure Rules. If the recorder had ruled such expert evidence to be admissible, he would probably have needed to adjourn the case so that the prosecution could obtain their own expert evidence. Indeed, Mr Cousens candidly submits to us that that would, or at least should, have been the consequence of admitting his late expert report. If that had happened, the whole ambit of the trial would have been extended to no useful purpose, and furthermore the trial would have been adjourned and then restarted at huge cost to the public purse and taking an undue share of the court's resources. All this would, in the view of this court, have served no useful purpose.[29]In the result therefore, we conclude that the recorder did not err in his ruling. Accordingly, the sole ground of appeal which is advanced, and has been put before us most attractively by Mr Cousens, is rejected and this appeal is dismissed.