Holden, R v [2017] EWCA Crim 31

Case No 201601133/B3[2017] EWCA Crim 31
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NOTTINGHAM CROWN COURT
MRS JUSTICE DOBBS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/01/2017
Before
LORD JUSTICE DAVISMR JUSTICE JAYMR JUSTICE LAVENDER
Between
RRespondentKERRY HOLDENAppellant
Jonathan Mann QC for AppellantJohn Price QC for RespondentHearing Hearing dates: 14 th& 15 th December 2016
Judgment

Introduction

[1]The appellant, Kerry Holden, was on 8 March 2012 convicted by a majority verdict of murder, after a trial before Dobbs J and a jury at Nottingham Crown Court. The victim was a young man called Luke Moran. The appellant was sentenced to life imprisonment with a specified minimum term of 18 years (less time spent on remand in custody). A subsequent application for leave to appeal against conviction was first rejected on the papers by the single judge and then, on renewal, by the Full Court on 25 June 2013.[2]This present appeal is brought on a reference by the Criminal Cases Review Commission (“CCRC”). It is based entirely on fresh evidence which the appellant seeks to adduce. The evidence is principally in the form of a subsequent confession by another individual, Stuart Murray, to the killing of Moran. Two particular features of the appeal are, first, that the confession sought to be relied upon was made at a time when Murray was undoubtedly mentally ill; and, second, that the confession has since been retracted by Murray (he having in the meantime been receiving medication and psychiatric treatment).[3]The appellant was represented before us by Mr Jonathan Mann QC. The respondent Crown was represented before us by Mr John Price QC. Neither counsel had appeared in the proceedings below. We would like to acknowledge their careful and thorough presentation of their respective cases before us. Both counsel were agreed that the essential issue for this court was whether the confession of Murray sought to be relied upon is capable of belief. Mr Price fairly accepted that, if it was to be so assessed then he could not seek to argue that the conviction of the appellant was nevertheless safe.

Background facts

[4]A party was held on the evening of 19 August 2011 by a woman called Kerry Lambert at her home address of 4 Eucalyptus Avenue on the Clifton Estate in Nottingham. There were a number of guests; it is clear enough that a lot was being drunk. The appellant was one of those who had been invited: she had arrived shortly after 7 pm.[5]The party continued into the night. During the course of it a number of uninvited guests attended. These included Luke Moran, a 25 year old man, and two friends of his, Logan Buchanan and Kyle Batt. Moran and Batt each came by bicycle. Buchanan arrived separately. They arrived at around midnight, although the evidence of their time of arrival was not wholly clear.[6]Until then there had been no unpleasantness at the party. The appellant immediately recognised Moran as someone who she considered had previously beaten up one of her brothers. There was an amount of evidence to the effect that by then she was drunk. She at all events became angry and confronted Moran in the house and shouted at him, standing close to him. He disputed her assertions, seemingly trying to laugh it off. She persisted. At one point, the appellant was seen to go into the kitchen before emerging and continuing with the argument with Moran.[7]In the meantime, an argument had also developed between Logan Buchanan and his former girlfriend’s sister, Debbie Billington. This too became heated. They both threw drinks over each other.[8]Moran, Buchanan and Batt, at all events, together decided (encouraged to do so by Kerry Lambert) to leave the party. Moran went outside into the front garden to collect his bicycle. There was an amount of evidence to the effect that the appellant was also seen in the front garden, confronting Moran and continuing the argument whilst he was astride his bicycle.[9]Buchanan and Batt had themselves already gone out into the front garden and sought to leave. This was shortly before 01.00 am. Batt said that he saw no one else in the street as he left. There was some discrepancy in their evidence as to whether Batt’s bicycle was still in the front garden of 4 Eucalyptus Avenue or whether he could not find it there and it was only retrieved some distance away. Be that as it may, it was not in dispute that Buchanan and Batt left together, at a time when Moran was observed still to be arguing with the appellant in the garden. The appellant was still shouting at Moran. Buchanan and Batt turned right out of the front garden of 4 Eucalyptus Avenue and then immediately right again into Pieris Drive (styled by some witnesses at trial as a continuation of Eucalyptus Avenue). Pieris Drive then, after some 60 metres, bends sharp left leading up to Hartness Road to the north: which was the route they – and, it is to be inferred, Moran – were intending to take. At some stage, at any rate, Buchanan had got onto the back of Batt’s bicycle by way of a “croggy”.[10]Very shortly after Buchanan and Batt left, Moran himself left 4 Eucalyptus Avenue on his bicycle. It is impossible to be precise as to timings but the appellant herself was to say in evidence, as recorded in the summing-up, that she accepted that Moran must have caught up with Batt and Buchanan “within seconds”. There was evidence that Moran was observed to be smiling as he left on his bicycle.[11]There is no dispute that Moran did catch up with Batt and Buchanan in Pieris Drive and in fact went past them on his bicycle. Quite where he passed them was not agreed by Batt and Buchanan. Buchanan thought that it was in that part of Pieris Drive shortly after the right turn from Eucalyptus Avenue. Batt thought that it was further on, in that part of Pieris Drive after it bent left towards Hartness Road. Both marked the respective locations, as they remembered them, on a map which was before the jury. Buchanan’s evidence was that Moran passed them at the spot where they had retrieved Batt’s bicycle and that it “took no longer than a minute” to walk there. (Subsequent calculations show that it can take about 34 seconds to walk to the spot). Buchanan was also to say in evidence at trial that he saw no one on Eucalyptus Avenue after he left 4 Ecualyptus Avenue and before Moran cycled past. As for Batt, he said that he saw Moran pass them “about a minute down the road”.[12]According to Buchanan, as Moran rode past them he was bicycling fast and was smiling. As he went past, Moran said “I’ve been stabbed”: Buchanan thought that he was joking and did not take it seriously. According to Batt, he heard Moran say as he rode past “I’ve been stabbed, I’ve been stabbed”. At all events, the two followed Moran on Batt’s bicycle. Moran had now passed out of sight and had turned right onto Hartness Road. They also (after Buchanan had disposed of his wet T-shirt) turned right onto Hartness Road. A short distance after that they saw Moran lying on the ground next to his bicycle. Buchanan said that he saw blood coming from his chest. Moran did not seem conscious and never spoke. Buchanan was to say that at this stage he also saw one of the appellant’s brothers on the other side of Hartness Road: when he asked what had happened to Moran Buchanan replied that it was his sister.[13]Buchanan then rode back to 4 Eucalyptus Avenue for assistance, telling them that Moran had been stabbed and that an ambulance should be called. Everyone then ran towards the place in Hartness Road where Moran was lying: the group included the appellant. When they arrived there, the appellant was heard by various witnesses to say “I didn’t stab him” (or “I did not stab the bastard”) and “I can’t go down for this, I’ve got three kids”.[14]Some passing motorists had made a 999 call timed at 01.09 am. An ambulance speedily arrived. No significant amount of blood was noted by the paramedics. Moran regained consciousness in the ambulance but he gave no information about his assailant. He was to die in hospital. Subsequent pathological evidence was to the effect that there had been a single stab wound to the heart. The depth of the wound was consistent with use of a knife with a blade length of 10 cms and width of 1.5 to 1.8 cms.[15]After the ambulance had arrived, Buchanan went to the house of a friend and (not using his real name) made a 999 call: this was at 01.21 am. In the course of that, he stated that the appellant (whom he identified as of mixed race, alone of the female party guests) was the person who had stabbed Moran. He also stated to the operator that Moran had passed him on his bicycle saying “I’ve been stabbed” which he did not take seriously. Shortly after that, however, Buchanan stated to the operator that Moran had gone past him saying “she’s stabbed me, she’s stabbed me”. At trial, his recollection was that he had said the former but he agreed that the 999 call was much closer in point of time and his memory may have been better then.[16]In due course the appellant was arrested and interviewed. She denied all responsibility for the stabbing. During the course of the interviews, the appellant twice lied. First, she initially denied having followed Moran out into the front garden before he left on his bicycle (in due course, she was to accept that she had). Second, she initially denied saying words to the effect “I have got three kids, I can’t go to prison for this”. (Subsequently, she was to accept that she had said this). The trial judge in due course gave a full Lucas direction.

The trial

[17]At trial, the appellant’s two brothers were co-accused, on a count of perverting the course of justice (of which they were acquitted). So far as the case against the appellant herself was concerned, the defence were in a position to emphasise that there was no direct evidence against the appellant. No one had seen her stab Moran; no one had seen her even take a knife; there was no forensic evidence of any kind linking her to the stabbing. Further, Moran had been observed to leave the party, laughing and smiling, on his bicycle giving no indication at that stage that he had been stabbed.[18]In this regard, expert medical evidence was adduced by the prosecution to explain both the timings and the lack of blood both at 4 Eucalyptus Avenue and on the route to Moran’s ultimate collapse on Hartness Road. It was explained that a wound of this kind would not necessarily cause instantaneous death: there could well be a period of survival before the individual lost enough blood to lapse into unconsciousness. The expert stated that in this case he would have expected the victim to survive minutes, although not hours, after the injury was inflicted. Very often the initial bleeding in such cases is confined to the sac and chest cavity and there can be minimal external bleeding; and also clothing can absorb blood. In the present case, as the expert stated, the wound would not have disabled Moran immediately and he would have expected Moran to run or walk or talk and “continuing normally” for a period of a few minutes before collapse.[19]There was also expert evidence to the effect that a knife subsequently retrieved from Kerry Lambert’s kitchen was of a kind which could have caused the wound.[20]The prosecution case thus was entirely circumstantial. It had these particular elements:(1) the considerable amount of witness evidence that the appellant had been involved in a heated ongoing argument with Moran in the minutes just before he left;(2) the fact that she had been observed to go into the kitchen, in a break in the on-going argument, and had the opportunity to take a knife;(3) the expert evidence to the effect that the stab wound would not have immediately disabled Moran and that he would be able to function normally for a few minutes;(4) the expert evidence about the knife;(5) the timings and what Buchanan and Batt heard Moran say as he rode past them;(6) the 999 call by Buchanan in which he was reported as saying Moran had said “she’s stabbed me, she’s stabbed me”.(7) the remarks the appellant was heard to make at the scene where Moran lay;(8) the lies told in interview;(9) the lack of motive or opportunity for anyone else to stab Moran (it was an admitted fact that there was no intelligence or evidence that Moran had attracted any threats or was the subject of any vendetta).[21]The appellant gave evidence herself at trial. Plainly the jury disbelieved her in her denial of stabbing Moran.[22]As we have said, an application for leave to appeal against conviction (in essentials based on the proposition that the appellant medically was not in a fit state at trial to do herself justice in her oral evidence) was rejected. Very swiftly after that application was refused, the appellant submitted an application to the CCRC seeking a review. It was and is common ground that the issues then raised were not substantiated: and the CCRC has confirmed that those points were of no relevance to its ultimate decision to refer this case to this court.

Stuart Murray

[23]There matters stood until Stuart Murray presented himself at St. Ann’s Police Station in Nottingham on 18 February 2015.[24]Murray was born on 18 February 1995. As at February 2015, he had no previous convictions or cautions of any kind (although it appears he may on occasion have been involved in fights when at school).[25]In 2011 he was living with his mother at 36 Hawksley Gardens, Clifton, Nottingham. His house was on the corner of Hartness Road and Hawksley Gardens. There was at the time a cut-through into Eucalyptus Avenue on the other side of Hartness Road, roughly diagonally opposite to 36 Hawksley Gardens. The cut-through led into a car-parking area which in turn fronts on to Eucalyptus Avenue as it bends right (viewed from the south) into Pieris Drive.[26]By August 2011 Murray, aged 16, had left school. He was by this stage already a regular user of cannabis as and when he could afford it. The evidence is that his cannabis use became increasingly more pronounced subsequently.[27]It is accepted that on the evening of 19 August 2011 Murray had been out with a friend called Matt Bryden. They consumed cannabis. Murray then walked home shortly before midnight. He was to say (and there is evidence in support) that on his way home, and shortly before he arrived, he was attacked by two males in Hartness Road and an attempt was made to rob him of his ipod. As a result of the attack one of the earbuds forming part of the hearing device became stuck in his ear. He ran off, deliberately running to a lane at the back of Hawksley Gardens in order to avoid drawing attention to where he lived. This had the support of the evidence of a dog-walker, who noticed a man running from this lane at a time of 00.53 am, and of a nearby resident who heard a man running in this area at around this time. Having concealed himself for a while Murray went home, let himself in with his key to the front door and went up to his mother’s bedroom, feeling angry and complaining about his ear.[28]She then (as explained in a statement she was to give) examined his ear. They then went downstairs to the living room, where the light was better, but she could not dislodge the bud. It was then agreed that she would take him to the local hospital. She went upstairs to get into some clothes – something she was to say to us took her around 3-4 minutes – and then came back down to the living room. Her son was there, holding his ear. They went to her car and drove off to the hospital, down Hartness Road. On the way they went past a group of people standing by a man on the ground next to a bicycle. (Clearly this must have been Moran and before the ambulance had arrived). They then arrived at the hospital. In the event, while there she was able to retrieve the bud herself from Murray’s ear and they left without in fact needing to see a doctor or nurse. Hospital records indicate that their recorded time of booking in at the A & E Department was 01.17 am.[29]There was nothing whatsoever at the time to link Murray to what had happened to Moran. The death, and subsequent trial of the appellant, inevitably attracted an amount of talk and local media publicity.[30]In the following years Murray’s consumption of cannabis increased. He was described as becoming increasingly moody and strange. His mother had ejected him from home at the age of 18 because of his drug taking and behaviour. His sister Stephanie noted the change from around the middle of 2012, when he was smoking cannabis more regularly. She thought that his mental state had deteriorated since he moved to live on his own in 2013; and by 2015 she was concerned about his delusions and feared for his well being. She recalled him closing down his old Facebook account “due to satanic aliens invading him”. A number of other witnesses since approached and who have made statements have spoken of his increasingly strange and erratic behaviour.[31]There was an occasion – probably in the early part of 2014 in around March and April – when (according to his mother) Murray told his mother that he stabbed “someone”. He said that was on the night they had gone to the hospital. By this time his behaviour had long since “completely altered”, as she put it in her statement: he was getting increasingly paranoid as she saw it. She did not take him seriously in what he was saying and thought that it was “crazy talk” as a result of his coming off drugs.[32]Nothing further was said to her about any stabbing until the weekend of 7/8 February 2015. He then contacted her, sounding “rambling and paranoid”. She agreed to take him to the house of a friend: he was saying that he did not want to go back to his own flat as “people were after him” and that his drink had been spiked there a while earlier. He then spoke again about the stabbing, to which she paid no attention. However, on 18 February 2015 (his birthday) he asked her to take him to Nottingham Police Station. When she asked why he said “because I stabbed that lad, and not that black woman.” She then drove him to the police station. As she said in her statement:
“I did not know what to think. But I just did as Stuart wished.”
The Interviews (a). First interview[33]Murray was interviewed, under caution, later that day. He was not placed under arrest. No solicitor was present.[34]At the outset, when asked for his account, he said that he “thought” or was “pretty sure” he had stabbed somebody although “I wouldn’t call it murder.” He said that he had memories of it and it “has played on my mind ever since.” Having so stated he said this; “Well it starts with this guy called Matt and we had some like, what would you call it, he didn’t like me because he was with this girl [P] and she left him after two years and got with me and he took it personally and then he would sit there, we’d chill out cause I thought he was my friend, we had a lot of back like history, like chilling out and stuff and then he’s been screaming I’ll stab him at every little incident that’s occurred like anything and it’s messed with my psychy (sic) and then I think he gave me Stockholm syndrome or something.”[35]He then proceeded to give an account of the events of that night. He described the attempted robbery in Hartness Road and his returning home and speaking with his mother who he said was angry with him. He then said this:
“…at that point I think I just lost all control and I’ve gone, gone in the kitchen and got a knife and I’ve gone outside and some guys [guy has] approached me on a bike and I just shut my eyes and think I stabbed him and I’ve opened by eyes and I’ve seen I’ve stabbed this guy and I … ah man I can’t even describe the feelings I was getting at this time but I just opened by eyes and ran away like I don’t even know how fast I was running. I must have been running really fast and I was at, I was just at my back door and then like a second later and then I was in the house and mum was asking me what happened and I didn’t have words to tell her at the time and she was like “are you alright?” at this point I was like I think so, I don’t know. I think we’ve gone to the hospital to get the earbud removed from my ear and my mum, in the waiting room my mum got a pin out and took it out my ear so …”
[36]He was then asked detailed questions about this account. He gave a detailed description of the attempted robbery. He then described what happened after he got home. He said that he took a knife from the kitchen - although he said he did not know why – went out and across the road into the cut-through to the car park area, and:
“then someone’s just rode up in front of me on a bike and I just shut my eyes and stabbed him I guess and then I’ve opened my eyes and seen I’ve stabbed someone and I’ve just ran off….”
He described the stabbing as a diagonal movement towards the right shoulder. He could not say why the bicyclist stopped or what the bicycle or the man looked like: when asked whether he was “black male, white male, Chinese male?” he answered “white guy, I guess.” He at one stage said that he thought the man was lighting a cigarette (Moran was a smoker but no lighter was ever found on him).[37]He said that when he ran off the man shouted after him “what are you doing?” He ran to the back door of his home; he looked at the knife and saw no blood. He then let himself in and put the knife in the kitchen sink. He said that his mother was in the living room at this point and they then went to the hospital.[38]He also said that he told his friend Matt Bryden of what he had done, ringing him from hospital. He said that the following day and on occasions thereafter Bryden taunted him about stabbing Moran. He said that he had told his mother once (something she subsequently agreed) but she had not believed him: at one stage in the interview he said “I don’t, I can’t believe it myself to be honest.”[39]He then went on to express concerns about a “miscarriage of justice”: at the same time saying that he had no sense of guilt at the time “because it had nothing to do with me.” When asked whether he was sure he had killed Moran he said:
“I’ve got the memories of it so yeah I think I did it.”
He also said that he had done research on Google and looked at local news publications about the killing of Moran.[40]He then reverted to Bryden. He at one stage said this:
“I’m saying, I’m saying stuff like this because that Matt guy, I talked to him about it after it happened and then recently like I just get the vibe that he’s been talking about it to the wrong sort of people and I think I’m in, not that I’m in, I’m in danger about it cause I think that they think I’ve done it and then like you know if I leave my family is sort of in danger so I’d, rather like you know put myself out there instead of leaving and then leaving my mum behind, high and dry, go after her to get me sort of thing, I’d rather me just go to prison and have it out with me there.”
He at a later stage said that he thought “I’m in danger about it” because “Matt has probably told the wrong people.” He was concerned there would be some sort of revenge killing and “they are probably after me.” He could not say who these people were, he did not know them, but he just knew “they’re not nice people.” He asked to be kept safe in the prison system.[41]Towards the end of the interview he referred to the recent incident when he said that his drink had been spiked. He said that the people he had been with on that occasion were “out to get me.” As part of his closing remarks he said this:
“I’m coming here and I’m telling you straight that I think I killed somebody and I think people are out, I think there’s probably like some sort of bounty on me for it and, I, I’d, maybe I’m paranoid, maybe I am because of the smoking but I’d really appreciate some sort of security.”
[42]After the end of the recorded interview, Murray made a comment “so how long will it take to get to the Court of Appeal?” When asked why he mentioned the Court of Appeal he made no answer.

(b) Second interview

[43]Murray was interviewed again by the police on 22 March 2015. This was at his mother’s home and in her presence and was part of what was called a “welfare visit.” By this time, Murray had been referred for psychiatric treatment.[44]During this interview Murray repeated points he had made at the first interview. He spoke at length about the recent occasion when his drink had been spiked, saying there had been a “mock execution” because “they think I killed this lad and they want revenge”. He reiterated that he had told Bryden (who he described as a “scumbag” and “sociopath”) on the night in question (19 August 2011) and he took it that Bryden had told the others. He said there were 200 people who would be happy to kill him. He stressed that he wanted security (a “safe house” or “supermax” prison) and protection. He also regarded himself as liable for “voluntary manslaughter”, saying that he had been looking at Google and Wikipedia.

(c) Third interview

[45]The third interview took place on 22 September 2015. In the meantime Murray had been admitted for a time to a psychiatric hospital on 27 March 2015, because of concerns about his deteriorating mental health. He had also in the meantime been prescribed with risperidone and anti-depressants. The third interview was conducted by officers of the Lincolnshire Police Force. By this stage, Murray had been, inaccurately, told that there would have been blood everywhere (not the evidence at trial, it will be recalled) and that there were witnesses of the stabbing (which was also not the evidence at trial).[46]Murray was to say at this interview that he now felt “normal.” He said that he now believed what he had been told by the police: but he still had memories in line with what he had previously said and he gave an account broadly consistent with that. (On this occasion, however, it may be noted, he described going out before the stabbing through the front door of his house and that when he returned after the stabbing his mother “came downstairs”.) Notwithstanding his continued memories, he now was prepared to accept the medical diagnosis of psychosis and delusional disorders. He said that in the interview in February 2015 he was “like seventy (percent)” in terms of whether he thought he was responsible for killing Luke Moran; “but now it’s like forty, thirty (percent).”

Medical Records

[47]Shortly after his first interview (and it is suggested in part on the recommendation of the police) his mother took Murray to his doctor on 23 February 2015. He was then referred to a psychiatrist.[48]We have already recorded Murray’s prior history, and the noted decline in his behaviour and mental health as observed by his family and friends prior to 2015.[49]There is evidence that on 22 February 2015 Murray told his sister Stephanie that his mother was working for the devil and trying to kill him. He also thought that Stephanie was Adolf Hitler. When seen by a consultant psychiatrist on 25 February 2015 he reported thinking that people were trying to kill him, that he heard voices and that his mother was Satan. The psychiatrist formed the view that Murray was suffering from drug induced psychosis and prescribed risperidone (an antipsychotic drug). Murray was visited at his home on 20 March 2015 by another psychiatrist. Murray maintained his belief that he had stabbed someone in 2011. He also stated concerns that “the Mafia” would kill him in revenge. He maintained also that an attempt had been made to kill him on the occasion when he said that his drink was spiked. The psychiatrist’s opinion was that he was experiencing a psychotic episode with paranoid delusions against a background of cannabis misuse.[50]Because of continuing concerns raised Murray was admitted to hospital on 27 March 2015. He was moved on to different antipsychotic medication and also on to anti-depressants. He was assessed as suffering from paranoia and persecutory delusions. He continued to maintain thoughts of having killed someone, although being assessed as now capable of questioning those thoughts. He was discharged on 30 April 2015. Concerns were expressed of a risk of relapse, at all events if he did not take his medication.[51]In the event there was such a relapse, in circumstances where he stopped taking his medication and reverted to cannabis. This resulted in bizarre beliefs and behaviour: culminating in an incident early in 2016 at an Asda store, where he then worked, leading to his dismissal (and to a conditional discharge in the Magistrates Court). In addition, he was among other things to say at this time that he believed that he was related to Eminem. He stated other deluded beliefs. He was in consequence readmitted to a psychiatric hospital in February 2016. He currently, we gather, is in supported housing and, it seems, is endeavouring to adhere to his medication and to remain abstinent from cannabis.

The CCRC report

[52]The overall emphasis of the CCRC report is to focus on what is said to be possible – perhaps understandable enough in this criminal context. The CCRC took the view that the confession of Murray was capable of fulfilling the criteria of s. 23 of the Criminal Appeal Act 1968. It took the view that “significant parts of Mr Murray’s account have been corroborated and those parts that have not been corroborated are plausible.” There is also perhaps some tacit criticism of the police for being unduly sceptical of Murray’s accounts in interview.[53]By this time Bryden had made a statement stating categorically that at no time had Murray ever said to him that he had been involved in stabbing Moran (whom Bryden knew). In reaching its view the CCRC indicated that it did not attach “any significant weight to the statement of Mr Bryden”, taking the view that it might be self serving (for fear of Bryden getting into trouble with the police for not reporting what Murray had said he told him) or that he may have “forgotten” Murray’s phone-call from the hospital having consumed cannabis that night. We will have to come back to that: it is, at first sight, perhaps a surprising assessment by the CCRC. In addition, however, the CCRC made clear that it did not have any updated psychiatric evidence as to whether or not Murray had been delusional. This court now has the advantage of such evidence, following directions given by a constitution of this court at an earlier stage during these appeal proceedings.[54]The CCRC attached great weight to the “time line.” If the dog walker had seen Murray running along the lane at 00.53 am and if Murray and his mother were passing the scene at Hartness Road en route to hospital at around 1.09 am (when the first 999 call was made) this covered the period of Moran’s stabbing; and there was time for Murray in that period - while his mother was upstairs changing – to run out of the house, stab Moran and return to the house before being driven to the hospital. We will have to come on to that appraisal too.[55]At all events, one point made in the CCRC report is, with respect, a false point (as Mr Mann accepted). At paragraphs 99 and 100 of the report the suggestion was made that Moran himself may have sought to use the cut-through as the quickest way to Hartness Road. Building on that, the CCRC suggest that this would give Murray more time to do the stabbing and run back to his house in what “might only have been a matter of seconds”; and that this would also help explain why no one saw Murray near Ecualyptus Avenue or heard Moran shout out “what are you doing?” But that, with respect, is pure speculation, which is actually contrary to the evidence given at the trial. All the evidence was to the effect that Moran set off after Batt and Buchanan as they went down Pieris Drive. There was no evidence that Moran headed towards the car-park and cut-through and no reason why he should (indeed not only was he evidently following Batt and Buchanan but also the cut-through was not even obviously the shortest route for him to take in any event, as Mr Price pointed out).

The recent psychiatric evidence

[56]We had the assistance of the written and oral evidence of two experienced psychiatrists: Dr Jeremy Berman called by the appellant and Dr Philip Joseph called by the respondent.

(a) Dr Joseph

[57]The report of Dr Joseph was dated 30 June 2016. It followed an interview with Murray (in the presence of his father) on 27 June 2016. He noted that there was evidence of a family history of mental illness. He reviewed the contents of the three police interviews and of the medical records. He recorded that, at the time of the interview of 27 June 2016 with Dr Joseph himself, Murray’s description of the events of that night included no reference to stabbing Moran. Murray said in the interview that he now had no memory of stabbing Moran.[58]When asked by Dr Joseph if he had other “memories” of criminal activity he recalled an incident when he was 18 when he went to a pub and then had a memory of “motions and orgasms”, implying male rape. Dr Joseph noted the previous psychiatric diagnosis of psychotic illness, with delusional ideas and misperceptions, and a paranoid perception that he was in danger, that people were after him and (for example) that his mother was Satan.[59]Dr Joseph’s conclusions were:(1) There was no evidence that Murray was mentally ill at the time of the killing of Moran in 2011.(2) It was likely that he was already experiencing psychotic symptoms when he first told his mother in 2014; and was “clearly mentally ill “when he next made the confession in the first police interview in February 2015.(3) As his mental illness was treated and his mental health improved his “memory” of the stabbing receded.(4) There was a “clear link” between his “memory” of stabbing Moran and symptoms of mental illness. It was likely that he was suffering from a delusional memory, a well-recognised symptom of psychosis in which the sufferer develops a false memory of an event.(5) The “memory” of stabbing Moran was delusional.

(b) Dr Berman

[60]Dr Berman’s report, following an interview with Murray on 22 August 2016, was dated 15 September 2016. He too had studied all the relevant papers – although he had not at that time had access to the records relating to Murray’s latest admission to hospital in 2016 (although he has since). He had also seen Dr Joseph’s report.[61]Dr Berman himself reviewed the events and medical records very fully. As to his latest interview with Murray, Dr Berman records Murray denying any recollection of picking up a knife or any memory of leaving his home on the night in question (after he had returned home) other than to go with his mother to hospital. This is thus essentially the same account as given by Murray to Dr Joseph.[62]Murray did speak about the “spiked drink” incident of February 2015, describing the persons present as “Mafia… out to get me.” He remembered those beliefs, and beliefs such that his mother was Satan and that his sister was Hitler and that “I killed that guy.” He now regarded them as delusional and said that “all these beliefs gradually went away with treatment with antipsychotic medication”. He went on to describe his deterioration in early 2016 when he had stopped taking his medication, recording his then actions and deluded beliefs which Dr Berman described as “suggestive of an acute psychotic episode”.[63]He further explained to Dr Berman that he did not think that he had stabbed Moran as there was no blood splatter. When asked to quantify how certain he was that he had not stabbed Moran his recorded answer was “0% certain” (presumably intending to mean 100% certain), giving “psychosis” as the reason for his previously reported “memory.”[64]Dr Berman’s conclusions included the following:(1) Murray was experiencing a paranoid psychotic illness when he presented himself to the Mental Health Services in February 2015;(2) Although the various mental health professionals who treated Murray, and Dr Joseph, had all reached the conclusion that his belief that he stabbed Moran was a delusional memory “the possibility it is not delusional should be explored”. In this regard Dr Berman among other things said: a) Murray’s description, though vague, was “not bizarre”: it was neither fantastical nor absurd and, as Dr Berman understood, was physically possible; b) Delusional memories are rare and also are not characteristic of cannabis users of this age group. c) The mental health professionals may have assumed that Murray was deluded because he had been (wrongly) told there would have been blood and that someone else had been convicted on eye witness evidence; d) The events could not be dismissed as being a delusional memory “solely on the content”.[65]Dr Berman summarised his opinion as being “there is sufficient doubt that the disclosure Mr Murray has made is a delusional memory.” (c). Joint statement[66]Subsequently Dr Joseph and Dr Berman, after discussion, prepared a joint statement of 14 October 2016 on points on which they were agreed. This reads as follows:
“1. Dr Joseph and Dr Berman both agree Mr Murray was suffering from a psychotic illness when he made his confession to the police in February 2015. 2. The most likely diagnosis is a paranoid schizophrenic illness, complicated by illicit drug misuse. 3. Following the first admission to hospital and treatment with antipsychotic medication, Mr Murray has retracted his confession. 4. Dr Joseph is of the opinion the memory of stabbing the victim is a delusional memory and therefore his confession is unreliable. 5. Dr Berman is of the opinion there is uncertainty as to whether or not the memory is delusional and therefore it is possible his confession is not unreliable.”

The hearing and submissions before this court

[67]The appellant and respondent have put in various witness statements, accompanied by the appropriate forms. It was agreed that a number of witnesses (for example, friends and family of Murray describing his declining mental state and the events of the weekend of 7/8 February 2015) need not attend for oral examination. It further emerged that the expert evidence as to knife entry – and as to whether it was consistent with Murray’s description of the stabbing – was inconclusive either way, given that it could not be known just how Moran’s body was positioned at the relevant time when he was stabbed.[68]We in addition heard oral evidence from Dr Berman; Dr Joseph; Julie Wharton (Murray’s mother); and Matthew Bryden.[69]As we indicated at the time, we received all such evidence as was put before us in the first instance de bene esse.[70]Dr Joseph gave evidence in line with his report. He stated that this was a “very clear case of false confession arising out of mental illness.” He ruled out any realistic possibility that, from a psychiatric point of view, the confession was not unreliable: such possibility as there was, if any, was “very faint.”[71]In the course of his oral evidence Dr Joseph made the point that if Murray had not told Bryden that he had stabbed someone – one of the explanations put forward by Murray as to why he was thereafter being persecuted and in danger – then that of itself would be a strong pointer to a delusion. He also made the point that by no means all delusional beliefs are self-evidently bizarre. In this regard he also cautioned against an over-refined distinction between deluded belief and deluded memory. He further said that it was entirely possible that Murray could use facts of which he knew to ascribe meaning to his beliefs.[72]Dr Joseph told us that he had no reason to disbelieve Murray when he interviewed him. His perception was that Murray was trying to tell the truth in interview, including when he said he had no recollection of stabbing Moran. Dr Joseph also stated that at the time he interviewed him (and there is no reason to think the position has since changed) Murray’s mental state was such that he was fit to be tried; whereas in February 2015, and thereafter at his police interviews, he was unfit.[73]Dr Joseph was an impressive witness. With all respect to Dr Berman, we found his oral evidence less satisfactory. In his written report, and in the joint report, he had expressed the opinion that it was possible that Murray’s confession was not unreliable. But in oral evidence he then, as we understood him, sought to say – on a wholly unclear basis – that it was actually probable that it was not unreliable. Further, the clear tenor of both reports of Dr Joseph and Dr Berman (and as expressly stated in the agreed Joint Statement) was that following treatment Murray had retracted his confession. Dr Berman then, however, sought to qualify that in his oral evidence. That too was unimpressive.[74]Moreover, in seeking to maintain his viewpoint Dr Berman frequently reverted to the asserted plausibility of Murray’s confession to the stabbing: in other words, adopting the line promoted by the CCRC in its report. We were concerned that some of his points went to the limit of, if not beyond, the proper ambit of psychiatric expertise and at stages gave the uncomfortable impression that he was arguing the appellant’s case.[75]At all events, we did not understand it to be disputed by Dr Berman that, as Dr Joseph said, it is perfectly possible to have deluded beliefs or memories that are not self-evidently bizarre or absurd. Dr Berman also accepted in cross – examination that if the asserted conversation with Bryden did not happen he would be inclined to agree that would be consistent with being part of the delusion.[76]Dr Berman did, after some prompting, also accept that Murray was (at the time when he interviewed him) fit to plead. As to whether Murray would have been fit to plead in February 2015, he eventually said that was complex and that there were “serious concerns” as to whether he was. When asked whether his perception was that Murray was not seeking to deceive him (Dr Berman) in interview Dr Berman – although making no adverse comment on this in his report, describing Murray as “laid back … and unconcerned” – seemed reluctant to express a view. He said, in effect, that he could not rule out the possibility of Murray deliberately misleading him, while not advancing any positive reason for thinking that he was. That too, we did not find very impressive: especially when Dr Berman seemed to accept in evidence that if Murray had indeed stabbed Moran then Murray would have known that when Dr Berman interviewed him. Dr Berman in fact at one stage stated, rather strikingly, that he attached more weight to what Murray had said in the police interviews than to what Murray had said to him (Dr Berman). He also stressed that a floridly ill person can nevertheless describe true events.[77]Both Ms Wharton and Bryden gave plainly truthful and reliable evidence before us.[78]Ms Wharton gave oral evidence in line with her witness statement. She did so with restrained dignity. In cross examination, she said that when she left Murray in the living room and went back upstairs to get changed, after agreeing to take her son to hospital, she reckoned that took no more than 3 or 4 minutes; and Murray was in the living room, rubbing his ear, when she came back down. He looked neither agitated (aside from his ear problem) nor out of breath and seemed no different from when he had first come up to her room. She also said that he seemed no different from normal in the following days.[79]It also emerged in the course of her evidence that she had not heard any sound of the back door (which was below her bedroom) being opened or closed nor did she hear any sound of the side-gate from the garden of her house leading onto Hartness Road, if it was shut, being opened or closed. She further stated that Murray only had a key to the front door: although a back door key was kept inside near to the back door. When they left for the hospital they left by the front door.[80]As for Bryden he too was, as we have said, plainly an honest and reliable witness. He was specific that at no stage had Murray told him about any involvement in the stabbing of Moran on the night in question: nothing was said to him either on that night or thereafter and at no stage had he thereafter taunted Murray about it. Moran was in fact a friend of Bryden and, as he said, he would “particularly remember” if anything had been said about it by Murray. He was clear that was so even if, on the night in question, he had been woken up after falling asleep after consuming cannabis: he would remember such a statement had it been made. He stated that he had lost touch with Murray in 2013 as he had “changed as a person” because of his heavy cannabis use. There is no valid reason for doubting any of Bryden’s evidence.

Counsel’s submissions

[81]Mr Mann submitted that it was essential to bear in mind the basis on which the appellant had been prosecuted. He suggested that the prosecution case had been “thin and circumstantial”; and a particular point of emphasis in the prosecution case - as noted in the summing-up - was to ask, rhetorically, that if the killer was not the appellant then who else could it be; and the prosecution case thus was that it was improbable coincidence that anyone else would have stabbed Moran at precisely this time. Now, however, on the basis of Murray’s subsequent confession, there was such a candidate. That of itself, Mr Mann submitted, undermined the safety of the conviction. He also emphasised what he said was the detail of Murray’s account and the fact that Murray volunteered that he saw no blood on the knife: which no ordinary person, he suggested, would assume in the case of a stabbing but which in fact accorded with the expert evidence at trial in this particular case. Moreover, he said, even if Murray did have certain delusional beliefs that did not necessarily mean his confession was not truthful and reliable. He said that, even if parts of the interviews were to be accepted as unreliable – for example, the spiked drink descriptions or the persecutory beliefs – it did not mean that the parts involving confession to the stabbing were unreliable. He further said that Murray’s subsequent retreat from his confession was in circumstances where he had been misinformed about the evidence given at the appellant’s trial.[82]Ultimately, he said , the key was whether Murray’s confession – and in oral argument Mr Mann focused solely on the first confession in the February 2015 interview - was, or may be, reliable. He submitted that this court could only dismiss this appeal if it was sure the confession was unreliable. And, he said, the court simply could not be sure in the light of the evidence. There was, he said, “just too much” for it to be ruled out as unreliable and not capable of belief.[83]Mr Price took up that challenge. He agreed that the crucial point was whether the confession of Murray was capable of belief. His submission was that it was manifestly not capable of belief and this court could be sure of that. He carefully analysed the evidence. He observed that, contrary to Mr Mann’s submissions and Dr Berman’s evidence, there was in fact a conspicuous lack of detail in Murray’s accounts of the stabbing. Further, there was simply no credible explanation or motivation for Murray to leave his house, having taken a knife, go down to the car-park area by Eucalyptus Avenue, stab a stranger and then return to his house – all within two or three minutes or so. Even more fundamentally, he submitted that Murray’s confession simply could not stand with the evidence either of Ms Wharton or of Bryden. That of itself, he submitted, was fatal to this appeal. But in any event, he said, such a conclusion was confirmed by the psychiatric evidence: in particular, the agreed evidence that Murray was suffering from a psychotic illness, in the form of paranoid schizophrenia complicated by drug misuse, at the time of his confession: which confession was then superseded by his subsequent retraction following medication and treatment.

Disposal

[84]We are left in no doubt that Mr Price is correct in his overall submissions. The purported confession in the interview of February 2015 – and, to the extent still relied on (if at all), in the subsequent interviews in March 2015 and September 2015 – is, we unhesitatingly assess on the materials before us, demonstrably unreliable and incapable of belief.[85]It is to be noted that the appellant has made no attempt to obtain a statement from Murray or actually to call Murray to give evidence before this court. In one sense, of course, that is unsurprising. If called, Murray could be anticipated to say what he has recently said to Dr Joseph and Dr Berman: viz that any previous confession is retracted and that he has no memory now of stabbing Moran. (Nothing in what Murray has ever said indicates that he would seek to invoke privilege against self-incrimination, as Mr Mann also suggested as a reason for not calling him). But this basic point rather highlights the problem. Murray is not sought to be called when he is, as the evidence shows, currently fit to give evidence. But what is being relied on, as hearsay evidence, is a confession – since retracted – made at a time when, on the agreed psychiatric evidence, he was suffering from psychiatric illness in the form of paranoid schizophrenia, and at a time when, as Dr Joseph has stated and Dr Berman did not contradict, Murray was not fit to plead.[86]At all events the appellant thus seeks to rely on this confession by way of hearsay evidence. There has been served the relevant application notice accordingly, this being ordinarily required for appeal proceedings in this court in the same way as for proceedings in the Crown Court: see CPR Rule 39.7(1)(b). Since Murray does not fall within any of the categories set out in s. 116 of the Criminal Justice Act 2003 the hearsay application necessarily has to be, and is, based on s. 114(1)(d) of the 2003 Act. The test for admissibility by reference to that subsection is specifically founded on “the interests of justice” albeit the court is required to have regard to the matters set out in s. 114(2): of which (d)(e) and (g) potentially have particular significance for present purposes. The specific requirements which this court must take into account under s. 23(2) of the Criminal Appeal Act 1968 are, of course, rather different: those set out in (2)(c) and (d) being potentially particularly in point in this case. But, as Mr Price fairly pointed out, that section too is ultimately governed by considerations of what is “necessary or expedient in the interests of justice.”[87]Turning then to the evidence is this case, it can readily be accepted that the account of Murray of the attempted robbery before he returned home that night is capable of belief. Not only is there his own detailed account but it has the support of his mother’s evidence, of the evidence of two other witnesses and of the records of the hospital visit. But the fact that that aspect of his account of that night may be reliable does not mean that the account of the stabbing may be reliable. And in our view it is manifestly not.[88]The CCRC seemed to have viewed the account of the stabbing as plausible. In terms of the actual time – frame, it can be accepted as (just about) physically possible. But plausibility stops there. The appellant’s case requires it to be considered as potentially reliable and capable of belief that, having fled from the attempted robbery and having (rationally and prudently) run beyond his home before making his way back there, Murray should then do the following: having fled his attackers and got to the safety of his home, he should then decide to go outside again; he should pick up a knife for no identified purpose; he should go to the car-parking area at Eucalyptus Drive for no obvious purpose; and he then should stab a stranger for no obvious purpose. (At no stage has Murray said that he was looking for the robbers there). There can be no psychiatric explanation for this behaviour, either, as it is agreed that Murray was mentally well at the time in August 2011. Dr Berman’s suggestion that his behaviour may have been due to his previous consumption of cannabis was simply speculation and in any event did not accord either with Murray’s rational behaviour in previously fleeing the robbers or with his conduct before his mother.[89]Further, the vagueness in Murray’s account of and description of the actual stabbing, which Dr Berman himself noted, is striking. Dr Berman sought to attribute that to the alleged vagueness and lack of specificity in the police questioning. We totally reject that. The interviewing was thorough – and, we add, having studied the transcripts and heard the tapes, measured and fair – and Murray was given every chance to give a detailed account.[90]Yet further, the sheer implausibility in the account is apparent from the evidence of Murray’s mother alone. The appellant’s case requires it to be considered capable of belief that, once it had been agreed that the two would go to hospital, and when Murray knew that his mother would return shortly downstairs, he then (after she went upstairs to change) took the knife, went out of the house, stabbed Moran, returned, put the knife in the sink and then went back into the sitting room where his mother, when she came back downstairs, found him holding his ear in pain. That is a scenario which it is not possible realistically to credit: the more so given that Murray gave his mother no impression of being out of breath or of looking upset (aside from about his ear) or being in any way different from how he had appeared when he first arrived back at home. Moreover, this scenario also requires Murray coincidentally to be in the car-parking area at just the time when Moran has bicycled off from 4 Eucalyptus Avenue, a few seconds after Batt and Buchanan but before passing Batt and Buchanan; requires, for reasons unexplained, Moran to stop his bicycle in front of Murray in that car-parking area, when all the other evidence was that Moran had set out to follow his friends down Pieris Drive; and requires that no one should see Murray standing there or hear Moran call out after the alleged stabbing.[91]Yet further there is the evidence of Bryden. It is clear, and we find, that Murray (contrary to his statements in interview) made no mention to Bryden – either that night or subsequently – of stabbing Moran. We were not impressed by the CCRC’s discounting of Bryden’s statement. It is in truth difficult to credit that Bryden would have kept quiet, given that Moran, as well as Murray, was a friend of his and given that he thereafter knew the appellant was being accused of Moran’s murder. But in any case, as we have said, his evidence before us was plainly truthful and reliable. This has a wider significance, moreover. Not only does it remove an alleged admission said to have been made at a time when Murray was mentally well. In addition Murray’s subsequent accounts of feeling in danger also ultimately derive from what he said he had told Bryden and what Bryden had said thereafter. As Dr Joseph pointed out (and as Dr Berman ultimately more or less accepted) if Bryden had not been so told then this tends to confirm that Murray was operating under a delusional belief from which his other subsequent persecutory beliefs derived.[92]Mr Mann placed much reliance on Murray’s account of seeing no blood on the knife when he returned by the back door (although, as Mr Price observed, in his third interview Murray in fact described leaving with the knife by the front door: if so, given that he had no back door key, he could not have returned by, or examined the knife by, the back door). Mr Mann said that Murray’s account accorded with the evidence at trial explaining why there was no blood and was a pointer to the account being truthful. That does not move us. While we bear in mind Murray’s remarks in the third interview, we do not in fact necessarily accept that people will be likely to assume, in the case of a single wound stabbing, that there will always be an amount of blood. In any event, on his own admission, Murray had been researching the entire case on the internet.[93]These points, taken together, of themselves lead us to conclude that the confession by Murray in February 2015 is wholly unreliable and wholly incapable of belief. But the point is in any event confirmed in the light of the psychiatric evidence and the agreed joint report.[94]To the extent that Dr Berman sought to maintain that, from a psychiatric perspective, it was possible that the February confession was reliable that falls away in the light of the foregoing and in the light of Dr Berman proceeding on the wrong assumption that Murray’s account was plausible.[95]The appellant’s case ultimately requires it to be capable of being considered that the retraction of Murray, following medication and treatment and at a time when, as the evidence shows, he was fit to give evidence, is to be rejected: but his account in his February interview is to be accepted, notwithstanding the clear and agreed evidence that he at that time was suffering from paranoid schizophrenia, with clear delusionary beliefs and, as Dr Joseph said, was not fit to be tried. That is not a realistically tenable proposition. It is also perhaps revealing in this regard that Mr Mann did not seek to rely on the “confessions” made in the second interview, let alone third interview. At all events there is no reason whatsoever to think that Murray’s mental health was in substance any different in February as compared to March.

Conclusion

[96]We do not propose to say more. We are entirely satisfied that the purported previous confession of Murray is plainly unreliable and incapable of belief. We decline to permit this proposed evidence formally to be adduced in evidence under s. 23 of the 1968 Act. That being so, the evidence given at trial, and cases presented at trial, stand unaffected; and there is no proper basis for interfering with the assessment of the jury who accepted the prosecution case and who disbelieved the appellant when she gave evidence before them that she had not stabbed Luke Moran.[97]We conclude that the conviction is safe. We dismiss this appeal.