“When cross-examined Dr Ho had to concede that his assertion about a single stab wound being inconsistent with loss of control was not contained in his report. It was something he had first said in his oral evidence. Dr Ho agreed that, in the joint statement he had prepared with Dr Iankov, he had said that the applicant was suffering from moderate PTSD at worst whereas in oral evidence he had amended the level to mild PTSD at worst. He claimed that this was because of the Facebook material which had emerged in the course of the applicant’s evidence. Dr Ho was shown a police document relating to the allegation of rape which he had had at the time he had prepared his report. It contained a section headed “Facebook undermining factor” which referred to substantial parts of the messaging material including the message from the applicant saying that they had both gone for it and they both had wanted it. Dr Ho was asked to explain why this report had not had the same effect that supposedly had been created by hearing the evidence in court. He said that the full content of the messaging gave a better sense of when the messages were sent and their frequency. Dr Ho was not cross-examined about the apparent inconsistency between what he had said during his evidence in chief and the fact that he had always had sight of the police document. The inconsistency was apparent on the face of his evidence. Dr Ho agreed that the applicant gave a description of flashbacks and nightmares which were symptomatic of PTSD. He thought that it was unconvincing that this was due to rape. His view was that the applicant was dreaming of an unpleasant first sexual experience. He acknowledged that the only specific sexual partner whom he could identify from the applicant’s account was the person who had made her pregnant and that this was a one-off encounter.”
“Evidence that the man under investigation had admitted that he had had penetrative sex with the applicant would have taken the matter nowhere. The issue was whether sexual intercourse was consensual.”
“Although the psychiatric evidence was a significant feature in the trial, it must be remembered what the evidence as called by the defence was seeking to establish, namely substantial impairment in the applicant’s ability to form a rational judgment and to exercise self-control. The evidence of the applicant was the starting point for the jury’s consideration of those matters. She explained that she took out the knife in order to deter [the deceased] from attacking her. Pushing and shoving followed during which she stabbed him when she did not realise that she had the knife in her hand. When considering the psychiatric evidence, the jury had to assess the circumstances of the use of the knife as described by the applicant and, to a lesser extent, Zofie and Peter. Those circumstances did not appear to give rise to the elements required for the partial defence of diminished responsibility.”
“58. The applicant also seeks to rely on fresh evidence from a consultant psychiatrist, Professor Forrester, a clinical psychologist, Dr van Brandt and a new report from Dr Iankov. Professor Forrester’s first report is dated June 2020. It is not necessary for us to rehearse the substance of that report. It does no more than mirror the evidence of Dr Iankov together with some critical commentary on the approach of Dr Ho to the issue of PTSD. This evidence is not fresh evidence. It is merely confirmatory of expert evidence given at the trial. The purpose of section 23 of the 1968 Act is not to permit an applicant to re-run a defence with different expert evidence. 59. Dr van Brandt found that the applicant’s intellectual functioning was at a relatively low level. He reached that conclusion in the light of psychological testing. Dr Iankov reached precisely the same conclusion albeit without the benefit of psychological tests. Dr van Brandt’s finding on this issue adds nothing to the evidence available at trial. Dr van Brandt also concluded that the applicant was suggestible and compliant. Dr Iankov has provided a further report to explain why this finding would be relevant, namely that it supports the proposition that the applicant would have been susceptible to grooming by the man who raped her in 2015. In our judgment this evidence would have been of marginal significance had it been adduced at trial. 60. Professor Forrester also considered the findings of Dr van Brandt in a report dated February 2021. He said that the findings indicated that the applicant suffers from a mild learning disability. This was of two-fold significance. First, had it been recognised, adjustments could have been made in the course of the trial e.g. the provision of an intermediary. Second, a mild learning disability is a recognised medical condition in respect of which diminished responsibility could have been considered. The issue of adjustments to the trial process is not the subject of any ground of appeal. At no point has it been suggested that the applicant was not able to give a satisfactory account of herself in court or was otherwise unable to participate in the proceedings. Professor Forrester’s opinion in relation to any mild learning disability is not developed and not tethered to the evidence in the case. It would not afford any ground for allowing the appeal. 61. Professor Forrester provided a third report dated September 2022. This dealt with the discrete issue of disassociation. In different language he made the same point that had been made at trial by Dr Iankov. The third report is not fresh evidence for the same reasons as apply to his first report. 62. It follows that we do not consider that the evidence from Professor Forrester, Dr van Brandt and Dr Iankov would have affected the outcome of the trial. Thus, it does not afford any ground for allowing the appeal.”
“(a) an intention to cause serious bodily harm rather than to kill, (b) lack of premeditation, (c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling withinsection 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability, (d) the fact that the offender was provoked (for example, by prolonged stress), (e) the fact that the offender acted to any extent in self-defence or in fear of violence, (f) a belief by the offender that the murder was an act of mercy, and (g) the age of the offender.”
“It has already been highlighted that [the applicant] was deemed to be more prone to suggestibility and compliance than others and this, combined with her borderline IQ level is likely to have affected her actions at the material time.”
“… since the Judge disregarded the whole experience in June 2015 as far as PTSD was concerned, this also meant that he did not consider how the effect of being a victim of [the offences committed against the applicant in 2015] may have impacted on the applicant’s behaviour at the time of the offence.”
“You are of previous good character but that is tempered by the fact that you had, in my judgment, carried knives before on the two occasions that the jury heard about.”
“A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Director of Public Prosecutions v Anderson(1978) 67 Cr.App.R. 185 ,[1978] A.C 964 . If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. It is said that the trial judge, in the light of the jury's verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in Hutchinson(1972) 56 Cr.App.R. 307 at 309, [1972] 1 W.LR. 398 at 400 is to "deprive the appellant of his right to trial by jury in respect of the other alleged offences." Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.”
“Dealing with it generally, it is axiomatic that, provided the verdict returned by the jury or the plea accepted by the Crown has been loyally respected, the sentencing judge is not merely entitled, but required to reflect on and balance all the relevant aggravating and mitigating features of the offence or offences of which the defendant has been convicted. This includes any features of aggravation or mitigation which have emerged during the course of the trial, including the judge’s assessment of the personality, character, maturity and attitude of the defendant to the offence. This will often include making findings of fact on disputed points. Such findings may well include, for example, that in the course of the offence of which he has been convicted, the defendant committed other offences; the indictment is not required to be overloaded with charges. Where for example the conviction is for an offence of conspiracy, the judge may need to make findings for the purpose of sentence about which of the overt acts the defendant has been shown to have committed. There will be other situations in which it is conceded that sentence should be passed which reflects offences beyond those charged; the indictment may contain charges which have been treated by consent as samples of a course of conduct, or the defendant may ask the court to take into consideration other specific offences. However, it is equally axiomatic that, situations such as these apart, a defendant cannot simply be sentenced for offences of which he has not been convicted, or on the basis that he has in fact committed them. The ability of the judge to make findings that other offences have been committed does not extend to reaching a non-jury verdict about allegations put before the jury by way of similar fact evidence, at least unless the jury must have been satisfied that they were proved, or unless the defendant has been convicted of them in the past.”