England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
MR JUSTICE HARRISON

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/02/2008

Lord Justice Hughes :

1. On 6 July 1994 this appellant was convicted of murder. The CCRC referred his case to this court because, following the decision of the House of Lords some years later in Morgan Smith [2001] 1 AC 146, and given a new assertion that the appellant had been the victim of childhood sexual abuse, there was doubt that the issue of provocation had properly been before the jury. Since that referral, the law has been clarified by the Privy Council in AG for Jersey v Holley [2005] UKPC 23; [2005] 2 AC 580. As has been accepted before us, the effect of R v James; R v Karimi [2006] EWCA Crim 14; [2006] 1 Cr App R 29 at 440, and of the refusal of the House of Lords to give leave to appeal in that case, is that the law is correctly set out in Holley and not in Morgan Smith. It is also accepted before us that that means that the appeal can no longer be advanced on the basis on which the Commission referred it.
2. For the appellant Mr Taylor submits, however, that quite apart from the basis of referral, this conviction is unsafe for two reasons:

(a) because fresh evidence from the appellant is available to suggest that he had suffered childhood sexual abuse, which, if it had been before the trial court together with fresh medical evidence, would still have provided a basis for acquittal of murder on grounds of provocation under Holley; and

(b) because fresh medical evidence is now available to suggest that the appellant was suffering from diminished responsibility at the time of the killing.

Accordingly, Mr Taylor seeks to pursue the appeal which the CCRC reference makes available to him on the provocation issue, albeit on modified grounds, and he additionally asks for leave to appeal on the diminished responsibility issue. He accepts that the CCRC considered the latter, and declined to refer upon it, but he contends that it raises good arguable grounds.

The offence, trial and first appeal

3. Hill was 39 at the time of the offence. On the night of Monday 17/Tuesday 18 May 1993, after an evening's heavy drinking, he left the last public house he had attended in the company of the deceased, Ricky Hayman, whom he knew as an occasional drinking companion. Hayman was known, generally and to the appellant, to be homosexual. The two men must have gone together to Hayman's flat. Sometime after arrival there, Hill killed Hayman in that flat by manual strangulation. There were marks on the body suggestive of one or (probably) more blows to the face, but they were of no great severity.
4. The appellant left the body on the floor of the living room, on its back. He stole a television from the flat, sold it, and spent much of the next day drinking on the proceeds. The back pocket of the deceased's trousers was torn off, raising the possibility of theft or attempted theft of cash; that the appellant denied.
5. In the afternoon of the following day, the appellant told a friend what he had done and took him to the flat, where he showed him the body on the floor. The friend extracted a promise from the appellant that he would give himself up to the police. In fact, the appellant did not, on his case because he wanted first to see his young daughter, living with the girl's mother, from whom the appellant was estranged. In the meantime, the appellant had moved the body that afternoon from the floor and put it in a cupboard, and had somewhat tidied up the scene of the killing. The body was found in the cupboard when the friend reported what he knew to the police. The appellant was arrested the same evening. In interview he accepted that he had been responsible for the death of Hayman, but said that he had not meant to kill him.
6. The account given by the appellant was not entirely consistent as to detail as between his police interviews, his proof of evidence to his solicitors, and his evidence at trial. But in essence he said, and consistently, that he had fallen asleep in a chair at Hayman's flat and that he had awoken to find Hayman fiddling with the zip of his trousers as if to attempt to extract and suck the appellant's penis. He had lashed out, not severely, with a backhanded blow, which had hit Hayman, although not hard, in the face. At some stage, Hayman had fallen and struck his head on the wooden arm of a chair; that, said the appellant was the cause of the principal of the facial marks, namely a cut over the right eyebrow. In police interview, the appellant denied strangling the deceased, or in any way putting his hand(s) to his throat; he said that the deceased had made weird gargling noises and had seemed to choke on something. At trial, he insisted that he had no recollection of doing anything to the throat of the deceased, but said that he accepted in the face of the pathologist's evidence that he must have strangled him. He repeated the evidence of the deceased making coughing or gargling noises and said that he had thought that he was choking on something.
7. The appellant's account, if accepted, amounted of course to provocative behaviour by Hayman, in the lay sense. As to the legal concept of provocation, the appellant had told the police specifically that he did not lose self control. He gave no evidence to the contrary at trial. Accordingly, the jury was not addressed upon provocation by very experienced leading counsel for the appellant. That is not at all surprising. If the appellant's evidence was or might be true, it was a case of lack of intent; his critical allegation of indecent assault was equally relevant to that issue; a conviction of manslaughter on the grounds of provocation, involving a finding of murderous intent, would have been a far worse outcome for the appellant than a conviction of manslaughter on grounds of lack of intent. The Judge, however, properly left the issue of provocation to the jury, because if it were to reject the appellant's assertion that he had not lost his self control, it needed to go on to consider whether his reaction was such as a reasonable person might have exhibited.
8. Because necessarily the argument in this court has proceeded largely upon the hypothesis that the appellant's assertion that Hayman had made the alleged indecent assault was accurate, we ought to record that it was disputed by the Crown. The evidence of it depended essentially on the appellant's word. There were other pieces of evidence pointing in favour of it or against, but they were, separately or together, inconclusive. Hayman was known to be homosexual. One of the evening's drinking companions said that Hayman had touched his leg in the public house. On the other hand, the appellant had associated contentedly with Hayman both previously and on the night of his death, and according to him had made his disgust clear on a previous occasion when Hayman had tried to kiss him. Hayman was fully dressed, still wearing his outdoor clothing including an (unbuttoned) anorak. The zip of Hayman's trousers was partly down when the body was found, but the appellant admitted to moving it, and to adjusting the scene by, for example, throwing away the deceased's broken spectacles. There were traces of semen on Hayman's private parts, but whether attributable to arousal (and if so when) or to death throes it was impossible to say. The Crown also disputed the appellant's account of the fatal physical encounter. There was blood near the door of the living room, somewhat away from where the body had been seen on the floor, which did not fit with the account given by the appellant. There was no blood on or by the chair on which he said the deceased had cut his eyebrow. The torn pocket and theft from the flat supplied a possible alternative explanation for disagreement between the men.
9. However, beyond the fact that the jury convicted of murder, it is not possible to know what view, if any, it formed of the appellant's assertion that he had been indecently assaulted in his sleep. The defence advanced at trial was lack of murderous intent. The strangulation would not necessarily have taken more than about 15 seconds and might perhaps have been accomplished with one hand, although it must have been pursued whilst the deceased audibly made desperate struggles for breath and until he expired. The jury must have rejected the appellant's assertion that he did not deliberately strangle the deceased, and his case that, if he did, he had no intent to kill or do grievous bodily harm. In so doing, the jury must, we think, have rejected the appellant's account of the mechanics of the physical contact between himself and the deceased which caused the latter's death. But the conviction for murder does not necessarily mean that the jury rejected the assertion of indecent assault. It may have done, but equally could perfectly properly convict on the basis that even if that happened, or may have happened, there followed a killing accompanied by the necessary intent, and not the result, in law, of provocation.
10. An appeal to this court followed. There were two grounds: a suggested flaw in the Judge's direction as to lies, and that the conviction for murder, rather than manslaughter on the basis of lack of intent, was unsafe and unsatisfactory. Those grounds failed and the appeal was dismissed on 19 May 1995.

Subsequent history

11. After the failure of his appeal, the defendant continued to protest his innocence. The basis on which he did so was his continued assertion that the death was accidental, by which he clearly meant he had had no intent to do serious harm. That has continued ever since to be his principal contention. That issue had been fully investigated by the jury and this court had subsequently held that there was very clear evidence on which the jury could find the necessary intent. The appellant's protestations that the deceased met his death by striking his neck on something, or otherwise without intent to do serious harm, remain his case, but rightly form no part of this second appeal in front of us.
12. In August 1995, when discussing this contention with a psychologist in the prison, the defendant said, in the course of insisting that he was not himself homosexual, that he had been sexually abused as a child. He has made a number of witness statements for the Commission, and now for this court, in which he explains that he was abused by his foster father. The exact facts of his fostering are less than entirely clear, but it is known that he was fostered by the Local Authority for two periods, each time with the same foster family. One was when he was about 8 or 9 (thus circa 1961 or 1962) for a short period of a few weeks when his mother was either confined for the birth of his younger brother or suffering from a breakdown. The second was the result of a fit person order made by the juvenile court on 16 March 1967 (aged nearly 14), following offences of burglary and criminal damage, and with a history of other offending including stealing, and of previous probation. He is said to have remained with the fosterers until he was about 16 or 17; he would have been 17 in May 1970. Certainly he must, on his own account, have left the fosterers some months before he had a serious car accident in April 1971, when not quite 18.
13. The appellant's present account is that he was persistently abused by his foster father during both periods of living with the foster family. Even more significantly, he says that he was ever thereafter oppressed by intrusive memories of the abuse, and that when, as he asserts, he woke up to find the deceased interfering with his trousers, he was assailed by a flashback to the similar conduct of the foster father. That, he says, is why he reacted in the way he did.
14. There is potentially independent support for the proposition that this foster father abused boys in his care. In 2004 he was prosecuted for serial offences of that kind, alleged to have been committed over several years from approximately 1967. The trial was aborted because of accidental jury contamination, and there has been no re-trial. It follows that the allegations made against him have never been tested. They may be true, or they may be examples of false late allegations which feed upon each other. However, enquiries by the Commission in the present case reveal that there were about a dozen people who, now adults, have complained of such abuse when either fostered by this man or driven about by him when children. There were formal witness statements dating from about 1988, but the Commission has also found that as early as 1969 one child complained of being abused when the foster father came into his bedroom at night, and that social workers taxed the man about it. At that stage the complaints of that child were accepted to be fantasies. This history of complaints means that it is certainly plausible that this appellant might have been abused in the way he now asserts. It is also possible, and in reality likely, that he would have known, as the foster-brother of the 1969 complainant, of what that boy was then saying, and/or would have learned at some stage after leaving this home of what was being said about the foster father; since, however, he has not addressed this question, there is no direct evidence either that he knew or that he did not.

Provocation

15. The first question which arises in this court is whether we should receive this new evidence from the appellant asserting childhood sexual abuse and that a flashback to it was the cause of his killing the deceased. By section 23 Criminal Appeal Act 1968, this court has power to receive it if it is in the interests of justice to do so. In deciding whether to receive it or not, our attention is directed, as non-exhaustive factors, to the questions:

"(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which the subject of the appeal; and ….

(d) whether there is a reasonable explanation for the failure to adduce the evidence those proceedings."

16. It is clear law that the appellant's assertion of childhood sexual abuse, and flashback to it, would have been admissible evidence at his trial and relevant to provocation under Holley. It would have provided evidence of particular sensitivity to the kind of indecent assault which the appellant was saying prompted his killing of the deceased. It would have been relevant to the gravity of the provocation.
17. The reason why this assertion was not before the jury was that the appellant did not say it. His case in this court thirteen or fourteen years later has been that he did not do so because (a) he was not asked about it, (b) he did not realise its significance and (c) he was embarrassed and inhibited to talk about his experiences, especially to men.
18. It is not quite the whole story to say that the appellant was not asked about this matter. The two psychiatrists reporting prior to trial upon him on behalf respectively of the Crown and himself, were aware of his assertion that there had been an unwanted indecent assault by the deceased, and were also aware that the appellant had, in addition to a very long criminal record for fraud and theft, a significant number of convictions for indecent exposure. They did ask questions about his sexual orientation, and one (Dr Canning) specifically asked him if there was an element of bi-sexualism, which he denied. That might have been thought to raise questions of sexual experience such as might have prompted a history of childhood abuse. But it would not necessarily do so, and it is certainly true that the appellant was not asked directly whether he had ever been abused. It is also true that the possibility of abuse, unremembered or suppressed by the appellant, occurred to Dr Sugarman, though as we now know, this is not a case where the appellant suggests that any abuse was unremembered or suppressed; quite the reverse.
19. Next, the appellant was not silent about his period in care in the run up to his trial. His experienced criminal solicitors had represented him over several years. Now that he was faced with a charge of murder they took from him a careful proof of evidence covering his life history. He related to them his period(s) in care. Far from revealing what he now says was a long history of frightening sexual abuse by his foster father, he went out of his way to say that that man had been kind to him, that he had helped him financially, and that he, the appellant, had kept in touch subsequently. The appellant told his solicitors that he had taken his own children to visit his erstwhile foster father. That included, said the appellant, a daughter not born until 1991. He was therefore telling his solicitors that he had kept in amicable touch with his alleged abuser for twenty years until only a year or two before this killing, and throughout a period when on his new account he had been constantly oppressed by frightening intrusive memories of his abuse.
20. We are perfectly prepared to accept that the appellant may not have appreciated the legal complications of the issues of lack of intent and provocation. If he did understand the difference between a partial defence of provocation and a partial defence of lack of intent, then it is probable that the failure to mention the matter was a deliberate tactical choice on his part, for to admit a violent reaction triggered by memory of childhood abuse would have been likely to demolish the defence of lack of intent run at trial. It is, however, not safe to conclude that this was his understanding.
21. But even if he did not understand the legal ramifications of his memories and flashback, it by no means follows that he would not appreciate the significance of what he now says. Precisely the reverse is the case. It constituted, if true, the very reason why he killed Hayman. It matters not for this purpose what were the mechanics of the killing. Whatever it was he did, the reason why he did it is, he now says, because he was a victim of childhood sexual abuse, had been oppressed by it for twenty years and more, and had a flashback to it when finding himself indecently assaulted. If that were true, no sane person facing a charge of murder could fail to appreciate its central importance. It went, on his account, to his excuse, or reason, for killing. It went as much to lack of intent as to the legal concept of provocation. In lay language he is saying he was the more affected by an indecent assault because of his experiences as a child. We are quite satisfied that there is no possible reasonable explanation for this appellant failing to advance the oppressive history and flashback if that were truthfully the reason for the killing. Accordingly we decline to receive the new evidence. Moreover, the fact that he did not give this evidence at the time means that, whilst it may be impossible in the abstract to reject the possibility that this foster father misbehaved towards him, his new evidence that the killing resulted from a flashback of childhood abuse, persisting over twenty years and more, is not capable of belief.
22. It is of central importance to the law that a person charged should advance whatever material is available to him at trial. This court will not ordinarily so exercise its powers to admit fresh evidence as to permit a defendant to change his account after trial in order to run a different defence on appeal, in the absence of the witnesses and of the jury: see, among many statements to similar effect, Campbell [1997] 1 Cr App R 199 at 204 and Jane Andrews [2004] Crim LR 376.
23. For those reasons we refused to receive the statements of the appellant made since the trial. The proposed grounds of appeal based upon provocation could only be advanced if that evidence was received. Accordingly the appeal on that ground must be dismissed.

Diminished responsibility

24. The appellant had had a serious road accident in April 1971. He had been unconscious for the prolonged period of about 18 days thereafter. This was known to the reporting psychiatrists prior to trial. They addressed the question of diminished responsibility. EEG tests carried out over the intervening years had been normal. There was some reporting from the appellant's mother of a change of personality and greater aggression after the accident. Otherwise the evidence of the appellant himself and of those who had known him over a period of years was that he had held a number of jobs in a different fields, including assistant management of licensed premises, had engaged in two or three long term domestic relationships, had a history of repeated offences of fraud and consequent periods in prison, and was regarded by his associates as a pleasant ordinary man except when drunk, when he became aggressive and violent. The reporting forensic psychiatrists, both very experienced, concluded that there was no prima facie case for a defence of diminished responsibility. Accordingly, it was not ventilated at trial.
25. Nearly fourteen years later, the appellant sought in this court to rely upon the evidence of Dr Peter Fenwick, an experienced neuro-psychiatrist, supported by that of Dr Somekh, a forensic psychiatrist. The evidence which was tendered was to some extent the same as was available at the time of trial, but in two respects it was based on scientific advances made since that time and was thus not then available. Those were (i) new scanning techniques considerably more extensive than an EEG, notably by MRI, and (ii) new scientific analysis of the physiology of sleep and of awakening from it. We were satisfied that there was, to that extent, a reasonable explanation for the fact that this evidence was not tendered at the time of trial. It is also evidence which would have been admissible at trial if the issue of diminished responsibility had been raised. Accordingly we invited Mr Taylor to call, de bene esse, the evidence on which he sought to rely, so that we could judge whether or not it might afford grounds for allowing an appeal against conviction. In the event, the evidence was given by Dr Fenwick.
26. On MRI scan the appellant can be seen to have a small area of localised atrophy in the corpus callosum. This could well be (although not necessarily) the result of the severe road traffic accident in April 1971. For present purposes, we proceed upon the basis that it is. Secondly, there is a degree of generalised atrophy in the brain. We should record that there is a difference of opinion between Dr Fenwick on the one hand and the consultant radiologist instructed by the Crown as to the significance of this. Dr Fenwick argues that it is somewhat beyond what would be normal in the brain of a man of this age, and that it is entirely consistent with being the result of the trauma in the accident. Dr Nixon, consulted by the Crown, takes the view that it is essentially normal, or within normal range. For present purposes, without resolving that difference of opinion, we proceed upon the basis that Dr Fenwick might be right. The damage includes the frontal lobes of the brain, which are those particularly relevant to (inter alia) impulse control, planning, and sequencing. Next, there have been psychometric tests of the appellant. His performance on verbal comprehension, thinking with symbols and processing speed, were poor. Notwithstanding that the experienced consultant neuropsychologist tester is of opinion that these results show abilities in the low average range without any significant cognitive impairment, Dr Fenwick disagrees; his view is that they do demonstrate significant cognitive disability. Once again, for present purposes, without resolving the difference, we proceed upon the basis that he might be right.
27. As to the physiology of sleep, Dr Fenwick explained that it is now known that sleep proceeds by alternating cycles of 'slow wave' (ie deep) sleep and dreaming sleep. During the slow wave phases, the blood flow to the frontal lobes is reduced and the brain rhythms alter. If one is awakened suddenly from slow wave sleep, then this can result in either (i) a serious 'confusional state' with complete absence of memory for what happens, or (ii) a lesser degree of confusion as to what is going on. This is not, he says, a case of (i), but is a case of (ii). His opinion is that the interaction of this process with existing organic damage to the frontal lobes would significantly reduce the appellant's responsibility, indeed his culpability, for the killing.
28. We were somewhat concerned about Dr Fenwick's approach to the issue of diminished responsibility. He began with the (uncontroversial) proposition that a severe road accident made organic brain damage likely. From there he proceeded to the assertion that organic brain damage, especially in the frontal lobes, was responsible, or likely to be responsible, for criminal conduct. At one stage he volunteered the opinion that it was highly likely that a record for persistent fraud, such as this appellant has, would be attributable to brain damage, even though, as we understood him to say, frontal lobe damage is apt to impair planning and organisation, which might be thought to be characteristics of fraud, such as (in this case) forgery of employers' credit card slips to generate a surplus of money to steal. To the extent that that involved the implicit assertion that a large proportion of persistent fraudsters suffer from a condition which would amount to substantial impairment of their responsibility for their crimes, we cannot avoid saying that this is very surprising. The next step in the reasoning appeared at first to be that if organic brain damage of this kind is found, at least if coupled with evidence of poor performance upon psychometric testing for verbal comprehension, word use and processing speed, that produces a prima facie case of diminished responsibility. He felt able to give the formal opinion that there were 'clear grounds' for a plea of diminished responsibility in a report written in 1996 when no MRI scan or psychometric tests had been carried out, and he had not seen the appellant. That involved the assertion that 'the offence took place when he was aroused from the deepest stages of sleep', although so far as we can see that could not possibly be known, even if one accepted everything the appellant had said at face value. At best it was founded on the appellant's estimate of time passing whilst he was asleep, but even if that, inherently unreliable, estimate were accurate the sleep patterns could not accurately be predicted because of the effects of the intake of alcohol.
29. Diminished responsibility must be established by a defendant on the balance of probabilities. The question here is not whether there is some organic brain injury, nor even whether there has been some change of personality since the accident. It is no more, but no less, than whether there was such an abnormality of mind as substantially reduced (diminished) the appellant's responsibility for killing Hayman. Whether there is or is not a substantial reduction in the responsibility of the killer is always a broad question of fact and degree. It is not determined by the medical evidence, although there are of course some clear cases where the medical evidence is such that no one could doubt the answer. It is determined at trial by the jury. If it arises on appeal for the first time by way of fresh evidence, the question is one for this court: see Pendleton [2002] 1 Cr App R 441 as explained in Dial [2005] UKPC 4; [2005] 1 WLR 1660 at paragraph 31.
30. In this case the evidence of any organic brain injury having an effect on the appellant's behaviour so as to show substantial reduction in his responsibility for his actions, and for this killing, is very limited indeed. No-one has been able to find out what his mother meant by greater aggression. But the appellant's own evidence, and that of those who knew him well, plainly suggested ordinary functioning, and an absence of aggression or impulsiveness except when drunk: see paragraph 24 above. That related to a period of 22 years or thereabouts between the accident and the killing.
31. In his evidence in this court, Dr Fenwick's opinion was refined. It was that the organic brain injury would not constitute significant impairment of the appellant's responsibility for the killing until it interacted with (i) alcohol intake and (ii) awakening from deep sleep, but then it would.
32. There is no suggestion that there was any involuntary drinking in this case. The appellant does not suffer from any alcoholic condition such as to make him unable to control his drinking. He simply sometimes drinks too much. On his own account, he did on the night of the killing. His own account is that he was still drunk when he woke up. He gave drink as an inherent part of his explanation for what he did. The law is clear. (1) The voluntary consumption of alcohol cannot be taken as something which contributes to mental abnormality and consequent significant reduction in responsibility for a killing. (2) If the mental abnormality would, independently of the drink, have significantly reduced mental responsibility for the killing, then the additional taking of drink does not take away the defence of diminished responsibility: see Deitschmann [2003] UKHL 10; [2003] 2 Cr App R 4 at 54. This, on the evidence of Dr Fenwick, is a case not of (2) but of (1). It follows that the reasoning that drink creates diminished responsibility by interaction with whatever organic brain damage there was is not, in law, open to the appellant.
33. As to sleep, it remains wholly speculative, assuming the appellant's account of being woken up to be true, which stage of sleep he was in. But quite apart from that, the appellant's description of being woken up is not a description of any degree of confusion at all. On the contrary, it is a description of knowing exactly what was happening, and reacting to it out of offence. He gave a consecutive account of events from his awakening to concluding that Hayman was dead, save only for professing an absence of memory for the strangling. His recollection included what the deceased said when he struck out. There are of course many reasons why a man who has killed may have, or profess to have, an absence of memory for the exact physical process of the killing. Such a memory gap, assuming it truly to exist, is no indication in the context of this case of any element of confusion as to what was going on, attributable to the interaction of whatever organic brain injury there was and sudden awakening. There is simply no evidential basis for the proposition that this killing was explained by confusion on awakening. That is sufficient to dispose of this case. We think we ought to add that a jury would be very familiar with sudden awakening and the possibility of some element of momentary confusion. It would not know the physiology of the process, but that would not prevent it knowing what effect it has. We have no doubt that it would take strong evidence of mental impairment to satisfy a jury that a killing committed on sudden awakening was one for which the responsibility of the defendant was substantially diminished.
34. For these reasons, we are satisfied that the evidence of Dr Fenwick, assuming him to be correct on the various points where there is disagreement, would not afford grounds for allowing an appeal against conviction. Accordingly we declined to receive his evidence. We should observe that in arriving at that conclusion, we share that of the Commission, which declined to refer this case on the diminished responsibility ground.
35. It follows that the application for leave to appeal on the diminished responsibility ground must be refused.