REFERENCE FROM THE CRIMINAL CASES REVIEW COMMISSION
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE FLAUX
and
MR JUSTICE MADDISON
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Regina |
Respondent |
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- and - |
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John Derek Evans |
Appellant |
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Robin Spencer QC and S Medland for the Respondent
Hearing dates: 14, 15 & 16 July 2009
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Crown Copyright ©
Lord Justice Thomas:
i) Was the plea entered on erroneous advice and, if so, were the proceedings a nullity or the conviction unsafe?ii) Is there fresh evidence of provocation?
iii) Is there fresh evidence of diminished responsibility? This issue was not referred by the Commission, as they did not wish to delay the reference by investigating it. We allowed this ground to be argued.
I THE EVIDENCE
(1) The agreed factual background
i) From 1993, he had been regularly prescribed Temazepam, Prozac, dothiapin and seroxat for depression.ii) In February 1996, he attempted suicide after an argument with the deceased, by taking Temazepam and alcohol.
iii) He was away from work for over 20 days in the period between August 1996 and August 1997.
i) On Saturday 12 July 1997, they went drinking with their friends, James and Wendy O'Hare. There was an argument between the appellant and the deceased; the appellant left the house but broke down in front of Mrs O'Hare before he went home on his own. Mrs O'Hare told the deceased that they should go to see the doctor to help him; her response was to say she had had enough of the appellant. On the following Saturday, 19 July 1997, the appellant drank too much; he assaulted and humiliated the deceased in the street. When he returned to their home at Kinmel Bay on the following day, she had left. She telephoned him to tell him she was not coming back. She went to her brother in Manchester, but did not tell the appellant.ii) On Monday 21 July 1997, the appellant took all the Temazepam and Prozac he had in an apparent attempt to commit suicide. He was admitted to the Ablett Psychiatric Unit of the Glan Clwyd Hospital. He stated on admission that he had marital problems, was depressed and took the tablets to kill himself.
iii) On 22 July 1997, Dr Farquar, a senior registrar in psychiatry recommended him for admission for assessment under Part II of the Mental Health Act 1983 on the grounds that he had a depressive illness and the suicide risk was high. He was recorded as having an air of defeat and hopelessness. He was assessed. On 24 July 1997 he was seen by Dr Trevelyan, a consultant psychiatrist. Although noted to be depressed, his compulsory detention was removed on the basis that he stayed for a few days and "got his problems sorted". He saw the deceased; it was this meeting that appeared to have made him consider his problems had been resolved.
iv) On 28 July 1997, he was discharged. His discharge note records "No evidence of depression". In a report sent on 20 August to the appellant's general practitioner, the Senior House Officer to Dr Trevelyan reported that soon after admission he was feeling better and had had a long discussion with the deceased and appeared to have sorted out his marital problems. He was on discharge reported to be well in himself and no evidence of depression was present.
v) The appellant went home to Kinmel Bay; the deceased went with him, but an argument developed and she said she was leaving. He pleaded with her to stay and tried to stop her leaving. She told him she did not love him anymore. He eventually let her leave that same evening.
vi) She went to stay with her brother at Manchester until she moved on 1 August 1997 to a flat at Princes Street, Rhyl with her son Michael. In an account given after the killing, the appellant stated that he resumed cohabitation and sexual relations with the deceased at some stage.
vii) The appellant was seen by his General Practitioner's locum on 1 August 1997; he was prescribed a week's supply of fluoxetine (Prozac) (as an anti-depressant), Diazepam and Temazepam. He was seen by his General Practitioner on 6 August and advised to continue with fluoxetine (Prozac); he was feeling better, going back to work and showed no signs of depression.
viii) The appellant and the deceased met at his son's house on 10 August for a barbecue and appeared to get on fine; the appellant returned to work on 11 August 1997.
ix) On 17 August 1997, the deceased went away on holiday to Cyprus with Alan Sanderson, and returned to North Wales on 26 August 1997. She did not tell the appellant of this. During the period, the appellant tried to find out about her whereabouts without success.
x) On her return, she told her mother she had decided to divorce the appellant. She spoke to the appellant and made arrangements to meet the appellant the following day at the Midland Bank to sort out their financial affairs. She told him she was not returning.
xi) The appellant worked the night shift of 26/27 August 1997. He returned home where the deceased's son was woken at his request by the appellant. He described the appellant as behaving unusually. He spoke to the controller at his employer's office at about 1 pm about the account into which his wages should be paid. He told the controller he was not all right as the deceased had left him.
xii) They met at the Midland Bank at about 4 pm on 27 August 1997; the clerk who discussed matters with them described the appellant and the deceased as appearing to be fine in her company.
xiii) After that meeting which lasted about 10 minutes, the deceased agreed that the appellant could return to her flat for a cup of tea. At about 5pm, the deceased's mother, Irene Crist, called at the flat. There was no answer; the flat was broken into and the deceased found dead with the appellant lying next to her unconscious. He had in his hand the blade of a carving knife.
xiv) The deceased had received 11 stab wounds to her upper chest; many of those had been inflicted with considerable force as the blade of the carving knife had been bent and detached from the handle. She had died from massive internal haemorrhages caused by 6 of the wounds, one of which had penetrated the aorta and 5 the left lung.
xv) The appellant had stabbed and cut himself 30 times; he was taken to hospital where he was detained until 4 September 1997. He was placed under arrest whilst at hospital
i) In the course of the interviews he made it clear that he could not remember how he or the deceased came to be stabbed. He stated that after his return to her flat, they had had tea. He asked her to return to him, but she had refused and told him that she no longer loved him and did not want to know him anymore. After that point he had no recollection as to what happened.ii) Despite being asked several times, he was very clear he recalled nothing after she told him that she did not want to know him anymore.
iii) He accepted that she had said quite hurtful things to him, but he could not say if it sent him "over the edge", because he loved her too much. When he was asked if it was the end of his world, he said it was; but when asked if he snapped, he said he did not know what happened after that.
iv) He was asked if he was aware she had gone on holiday to Cyprus. His response was that she could not have done as she had not got a passport. He was unaware she had gone. He believed she was in Manchester.
v) He was also asked if she had told him she had met someone else. His response was that she had not and that she would not do that to him. He was very clear in his answers that he did not know that she had been to Cyprus with Alan Sanderson and she had never told him that. He did not believe she had done that.
(2) The evidence relating to the legal advice prior to the plea
i) Dr Boyd saw the appellant on 17 December 1997 and 12 January 1998 and submitted a report for the defence on 13 January 1998. He concluded that he could find no evidence to suggest that at the material time the appellant was suffering from any condition that would have impaired his responsibility for the killing of the deceased. He noted that the appellant's lack of memory made it impossible to know if anything was said or done which could have provoked him in any way. In a further report on 4 February 1998, he gave his opinion that the Prozac and Temazepam which the appellant had been taking had had no significant effect on the appellant's actionsii) Dr Higgins saw the appellant on 26 November 1997 and 14 January 1998. He submitted his report to the Crown on 27 January 1998, concluding in respect of the appellant:
"6. His lack of a formal depressive illness, just a depressive reaction occurring over at least four years, clearly fluctuating with his social circumstances, the apparent absence of any new or more prominent features in the immediate period leading up to the killing and his claimed amnesia for what he or his wife said or did at the material time, especially as his wife had been unfaithful to him and this was not, he claims, known to him, all make it very difficult to make an accurate assessment of what his mental state was at the material time and whether his reactive and understandable emotional distress amounted to an abnormality of mind sufficient for s.2(1) of the Homicide Act 1957.7. Despite his unhappiness, anxiety, preoccupation, difficulty in sleeping and alleged weight loss and protracted treatment with anti-depressants possibly being an indication of a depressive order, I do not consider that the totality of his history substantiates such a view. I do not consider that his understandable emotional distress at a failing marriage, plus what else must have happened prior to the killing, indicate that he was suffering from an abnormality of mind sufficient for the Homicide Act."
i) A note dated 15 January 1998 records Mr Cole reporting that Mr Waldron QC had advised the trial would go ahead. Although the appellant had no recollection, he must have acted under provocation. The realisation that his wife was leaving him probably led him to do the act; realistically the appellant had little to lose by taking that position.ii) A very brief note of a conference with Mr Waldron QC and Mr Cole on 16 January 1998 made clear that every effort would be made to defend the case. It was hoped to get a report which would support a plea of diminished responsibility, as the prosecution had hinted that they would accept such a plea. A further note of 22 January 1998 confirmed this advice and indicated that the prosecution might allow an issue of provocation to go to the jury.
"The use of a knife and the number of stabs are insufficient to justify an inference of provocation; the assertion is no more than speculation- see Acott [1997] 1 WLR 306"
"I think that the position that would arise if we failed to get the psychiatric evidence has already been discussed with him; but if you feel that he should be seen again before Monday morning, I am quite willing to have a further consultation."
(3) The appellant's plea to murder on 11 February 1998
"The bottom line is that unless the judge allows the provocation to go forward, Mr Evans is going to have to plead guilty. Counsel was very good in explaining it. I updated them as to the work we had done on the Prozac. I contacted the office to get the report from the expert at Bangor University. That was negative. Obviously Evans was upset, but the advantage from our point of view was that it showed him that everything conceivable had been done. In my experience when people are facing such serious charges, they want to make sure that everything that should be done has been done and in this particular case, I am confident that is the case.
The QC went through how the case would work. He is hoping that the judge will let it run, even if it makes the decision to withdraw it from the jury in the end. But I think there is a very great risk that the prosecuting counsel is going to ask the judge to rule on it at an early stage. If he rules against it then that is it. The QC has told Mr Evans that if that is the case then we will appeal to the Court of Appeal, but I suspect that it is not going to be much chance for him.
[The appellant] understands, he has been through the papers, he has taken it as well as can be expected..."
"QC, counsel and I went down to the cells to see client and Mr Waldron explained the situation to client that there was really no option other than pleading guilty to murder. He said he could appeal, but it would not be very successful. Eventually, client agreed to plead guilty but he was still adamant that he was not of sound mind when the incident took place and basically said that it was not fair that he should plead guilty to something he feels he is not guilty of."
(4) The application for leave to appeal in 1998
i) In grounds dated 14 February 1998 drafted by Mr Waldron QC it was contended that the ruling of Sachs J was wrong. It could properly be inferred that it was likely that the deceased had disclosed as a compelling reason for her refusal the association that she had formed on her holiday to Cyprus, though the appellant could only recall her refusal to return and his refusing to take "no" for an answer. The grounds were supported by an advice which elaborated the argument that it would have been open to the jury to infer that the deceased had given a compelling reason why she would not return which in turn caused him to lose his self control.ii) Sometime between then and 12 March 1998, the appellant wrote to his solicitor asking to see him, as he thought that the judge's decision was wrong and he should have had a trial before a jury. More details had come back to him, as he had stopped taking medication for his depression.
"I feel a lot more composed and things have cleared up a lot in my mind as to what [the deceased] said to me, to cause provocation."He wanted to appeal and to fight it all the way.iii) Thereafter his sister visited him in prison; he provided her with a note of what he could recall of the events of the killing. His solicitor responded on 12 March 1998 in some detail to the appellant's letter explaining why the defences of provocation and diminished responsibility were not available; he also drafted a statement which the appellant signed on 13 March 1998 adding some further recollection in manuscript. In that statement the appellant said that things were starting to come back to him about the day on which he killed his wife. He said:
"… I was arguing with my wife about why she would not come back, I asked her what I had done wrong and she said that it was because I was depressed at the time. I can remember that she shouted at me that she had been away with somebody but she had not slept with anyone, but even if she had, it was fuck all to do with me. She also told me that I could kill myself as many times as I wanted and that she would not help me with the debts because she wouldn't be able to afford it on her wages alone."iv) A further advice dated 31 March 1998 was provided by Mr Waldron QC in which it was sought to adduce the statement as fresh evidence under s.23 of the Criminal Appeal Act 1968. He advised that it was unlikely that the statement would be regarded as fresh evidence. Although the statement provided some evidence of provoking words and conduct, it did not address the question of whether the provocation had caused the appellant to lose his self control. He also advised that
"the limited nature of the appellant's recovered memory might raise a question mark in the court's mind as to the veracity of what is now being said".He advised that a fuller statement be taken from the appellant and the advice of Dr Boyd be obtained on recovered memory. He wrote to the Court of Appeal asking for a short period of delay before the submission of the application to the single judge.v) The solicitor saw the appellant on 30 April 1998. His note records:
"Secondly I dealt with the further advice on appeal that had come from William Waldron concerning his further recollection. Unfortunately this is at this stage a dead duck. All he can remember is what is written on the paper, he is vague as to when it came back to him and in what circumstances and he cannot place that in any context of events. He just seems to remember that was said. He does not claim that led him to do anything, he certainly cannot say that it led him to lose his self control. What I am, therefore, left with is I am left with a few words that he seems to remember, no context of when they may have been said, no indication that those words led him to do anything and a certain vagueness about when and how the recollection occurred. My view, and I explained to him is, that he does not have a hope at this stage of that helping his case.…If there are now signs that he is getting his memory back, then whereas of course I can give him no guarantees as to what will happen in the future because of time limits and because of the hurdles that he has to go through to show the case can go back to the Court of Appeal, at least if he does have a further recall of memory, it is something that can be looked at again, medical evidence sought and see whether there is any justification to pursue it because at this stage there is not. In fairness to him, I think he understood the point, he is a sensible and intelligent man, he saw the advice and he saw the problems he had."
(5) The evidence relating to the claim by the appellant that he had recovered his memory
i) Prison medical records for 27 December 1999 note that he had a flash back to the offence, that he realised that he had killed his wife, but had been blanking it out for 2½ years. The record for the following day noted that he thought that the flash back had been triggered by the image of a man stabbing a woman with a combat knife in a film he had seen on Boxing Day.ii) On 29 December 1999, he wrote to Ms Jain asking her to see him as he had had a full memory return of everything that happened on the day of his wife's death :
"On Boxing night I had a full memory return of everything that happened on the day of my wife's death….It was all triggered off by a television programme where I saw a woman getting stabbed and it turned me sick and the following night my nightmare all came back to me to very near the last detail, so I would like to discuss it with you…I know now that I was provoked into it as well as the deep depression I was suffering at the time."iii) No statement was taken from him about this until 18 January 2001, just over a year later. However, in a letter written by him to Ms Jain in the summer of 2000 in response to a letter which was not available to the court, he did not set out any further detail of the recall he claimed had occurred on Boxing Day 1999. His letter seeks at length to respond to a report of a Dr Healey (apparently dated 26 June 2000) who had seen him and reported on him. A copy of that report was not available to the court.
iv) He expressly made the statement on 18 January 2001 to enable his solicitors to consider whether
"I can appeal against the conviction for Murder and reduce it to Manslaughter on the ground of either Diminished Responsibility or Provocation."He referred to his recall coming back to him on Boxing Day 1999. He said he recalled discussing their debts after the return from the bank; she refused to pay and said she did not care how he paid."[The deceased] then told me that she had a new and younger boyfriend and teased me that I could not get an erection. She knew that this was due to Prozac and not age.When she said this everything built up inside me and I lost my rag. She went into the kitchen and I followed her. I picked up a knife off the floor with my right hand. I remember that it was in a bag or container but I do not know what. [The deceased] was at the sink with a metal spatula in her hand. I went to take it off her but I do not remember what I did with the spatula. She ran off and I caught her on the shoulder with my left hand and pulled her down onto the floor of the living room. I remember I had my left hand around her throat and then stabbed her with my right hand. I do not remember how many times, but I do not believe it was 11."He then set out how he stabbed himself, but everything had gone blank. He had been on Prozac and Temazepam. He explained that Dr Healey had got some things wrong; he did not show remorse about the deceased's death as the police had told him she had been to Cyprus with another man, but he did feel remorse after stopping taking Prozac.
i) The first was made on 3 January 2002, by Dr Geelan, a consultant psychiatrist who had seen him the day before. Although his report was primarily directed at his lifer planning, the report set out the appellant's recall of the circumstances of the killing as recounted to Dr Geelan. The appellant told him that he could not remember the details. There was no mention of problems with impotence or of his having been told by the deceased that she had a younger boyfriend. He merely recounted that she had abused him and told him that she was going to leave him. He recalled going into the kitchen, the deceased picking up a cooking utensil and he picked up a knife. When the deceased lunged at him, he grabbed her by the throat and stabbed her.ii) His account of events set out a report made by Ms Robbins, a probation officer, on 25 July 2002 mentioned the matters he had set out in his statement of 18 January 2001, but in different terms. The deceased had told him that she wanted nothing to do with their debts and that she was not coming back to him. When he told her that he was confused, she told him she did not care at all for him, he was far too old and that she had got someone younger. When he enquired how long she had been seeing the other man, she told him that it had nothing to do with him adding "let's face it you can't get a hard on anymore". This comment really hurt him and led to him acting as he did. He recalled vaguely picking up the knife; the deceased had a fish spatula in her hand. He knocked it away and when she tried to run to the front door he pulled her back, grabbed her shoulder and she came down on the floor. It was then that he stabbed her. He thought that it was 4 times, but he knew it was 11.
(6) The subsequent events
i) Professor Eastman, Professor of Law and Psychiatry at the University of London and Head of Forensic Psychiatry at St George's, University of London interviewed the appellant on 5 March 2008. He is an eminent authority on psychiatry.ii) Dr Chesterman, Consultant Forensic Psychiatrist to the North Wales Forensic Psychiatric Service interviewed the appellant on 13 October 2008.
II: ISSUE 1: WAS THE PLEA ENTERED ON ERRONEOUS ADVICE? IF SO, WERE THE PROCEEDINGS A NULLITY OR THE CONVICTION UNSAFE?
(1) Our findings on the advice given
i) Provocation was referred to in general terms in the defence case statement to which we have referred at paragraph 17.ii) We cannot accept the submission made on behalf of the appellant that a case could have been advanced on the basis of what he had recounted in interview, namely that the deceased had told him that she did not love him and was not coming back. Without the evidence in relation to going to Cyprus with another man, the defence of provocation had not the remotest chance of success.
a) The evidence was clear. The appellant had been violent to the deceased before. He had previously said that he would kill her if she left him, although the evidence which is now admissible is much more extensive than that which would have been admissible in 1998. He never said in the police interview that he was provoked by her saying that she did not love him and was not coming back. She had said the same before, but he had not previously lost his self control. It was impossible to say how long had elapsed between her saying that she did not love him and would not be coming back and the time of the stabbing and in the meantime he had taken possession of the knife.b) He did not give instructions to his defence team to any other effect. The defence team had to proceed on the basis that if he were called to give evidence the appellant would say the same to the jury.c) In any event there was no prospect of a jury finding that a reasonable man, on hearing such words, would or might have lost his self control and reacted as the appellant did.iii) As the advice we have set out would without doubt have been correct, we are in effect being asked to infer that the experienced defence team failed to advise him that there was a defence of provocation which might have had a prospect of success, however slim, before the jury on the basis of what he had said in interview.
iv) The notes kept by the solicitor are sketchy. It would appear from the note of the conversation with Mr Cole on 15 January 1998 (to which we have referred at paragraph 16.i) that Mr Waldron was considering advancing a case of provocation on the basis that the realisation that his wife was leaving him probably led him to this act. There is no record of provocation being discussed at the consultation with the appellant on the following day (see paragraph 16.ii)) as a possible defence apart from the reference to the defence case statement. The note recording the report of a discussion with the Crown on 22 January 1998 (see paragraph 18), the letter of advice of 2 February 1998 (see paragraph 19) and the note further conference on 6 February 1998 (see paragraph 20) all make it clear that the focus was on the defence of diminished responsibility.
v) At the consultation on 11 February 1998 before the Crown's application was heard by the judge, the note records the appellant being advised that he would have to plead guilty unless the judge allowed 'the provocation' to go forward (see paragraph 23).
vi) In the submissions made to Sachs J the Crown drew attention to the fact that the only matter the appellant could recall that the deceased had said was that she did not love him and she was not coming back to him. The Crown had made it very clear (see paragraph 18) that they did not consider that this amounted to a defence of provocation. It is inconceivable that the appellant's legal team would have ignored this way of putting the case for provocation, if they thought that there was even a remote prospect of contending that these words amounted to provoking conduct.
vii) It is the inescapable inference from the note of 11 February 1998 and the argument before Sachs J that followed, that it was clearly Mr Waldron QC's view that the defence of provocation would fail unless the inference in relation to the appellant being told of the deceased's visit to Cyprus with another man could be drawn by the jury.
viii) We consider for these reasons that it is clear that the appellant was given clear advice that the defence of provocation would fail unless the jury were allowed to infer that the deceased had told him of her going to Cyprus with another man.
(2) The effect of incorrect advice
"For an appeal against conviction to succeed on the basis that the plea was tendered following erroneous advice it seems to us that the facts must be so strong as to show that the plea of guilty was not a true acknowledgment of guilt. The advice must go to the heart of the plea, so that as in the cases of Inns and Turner the plea would not be a free plea and what followed would be a nullity"
(3) The safety of the conviction
III: ISSUE 2: IS THERE FRESH EVIDENCE OF PROVOCATION?
(1) The appellant's case: his recovered memory provided evidence of provocation
(2) The science of recovered memory
i) Professor Kopelman in his report, supplementary report and evidence explained the conclusions that he had reached in respect of the appellant. He concluded that, as amnesia was reported as commonly occurring in crimes of passion where the crime took place in a state of emotional arousal and stress, it was plausible, particularly in the light of the appellant's history of depression and his loss of consciousness, that he had suffered from amnesia. It was possible that the recovered memory was fabricated, but he did not consider it was. The history of an incremental recovery was plausible, but it was much more difficult to determine whether the content of his recall was accurate. What he had recalled earlier was likely to be more accurate than that which he recovered later.ii) Dr Somekh considered that the memory loss and recall was genuine; it made no sense for him to withhold matters at trial which deprived the appellant of a defence of provocation and he could not have fabricated his subsequent recall. Professor Eastman adopted Professor Kopelman's opinion; he simply added that the loss of memory was not in his view self serving as he could have fabricated a defence of provocation at the time, if the loss of memory had not been genuine.
iii) Dr Chesterman considered that there was no evidence that the amnesia was genuine as no tests had been carried out contemporaneously. He could not accept that the alleged recovered memory was either accurate or genuine; he pointed to the inconsistencies in the various accounts.
(3) Our conclusions on the genuineness and reliability of the recovered memory
i) We cannot accept that there is credible evidence that the recovered memory is genuine:a) It is very difficult to accept that he had genuine amnesia; the far more likely explanation is that he did not wish to reveal what had happened, as he knew that would not provide him with a defence. It is significant that what he wished to advance was a defence of diminished responsibility on the basis that his actions had been influenced by Prozac.b) He claimed his memory began to recover as early as 13 March 1998 – see paragraph 28.iii). The timing is of striking significance as he was attempting to find a ground on which to appeal. He purported to remember that the deceased had told him she had been away with someone, but had not slept with him. He did not mention any taunts of impotence or how he had killed his wife.c) When in about June 1999 he next gave an account (see paragraph 32), his recall was of the deceased telling him of his impotence, but nothing of her going away with another man. He did not know where the knife had come from.d) When he claimed a much greater recall had occurred in December 1999 (see paragraph 33) the appellant was unable to say in what film or TV programme he saw the images of a man stabbing a woman, said to have been the 'trigger'. This was despite the fact that he reported flashbacks only a day or so after he said he had viewed the images.e) In his letter written immediately after on 29 December 1999 to his new solicitor Ms. Jain (see paragraph 33.ii)) he said "I now know I was provoked into it". We are driven to the conclusion that what he alleges he recalled was an attempt to resurrect the defence of provocation which had previously failed when he sought leave to appeal in 1998. He gave no details, merely asserting that he had been provoked.f) When he gave details in his statement of 18 January 2001 (see paragraph 33.iv), it was avowedly made for the purpose of an appeal. It recounted an elaborate account of the killing with the causes of his loss of control being then attributed to her speaking of her disinterestedness in their debts, her having a new and younger boyfriend and his inability to get an erection. The addition at this stage of his purported recall of her telling him about her new boyfriend and his impotence is explicable against the background only of an attempt to find a better case than those which had not previously sufficed.g) The whole of his actions are consistent only with an attempt to find a ground to escape from his plea of guilt to murder which he had never accepted he had committed. From very shortly after his plea, his sole motivation was to find a way out. When his first attempt was dismissed by the Single Judge in 1998 as self serving, he tried and tried again.h) It is difficult to accept that his account of her mentioning his impotence is genuine or that it could have contributed to his alleged loss of control. Although he mentioned in the letter found after the killing that that his ability to have sexual intercourse with the deceased was beginning to fail and Dr Higgins's notes indicated that he mentioned that he had had difficulties a month before the killing, it is clear from those notes and the report that he told Dr Higgins that the sexual aspect of his marriage had always been very good and his wife had been pleased with his sexual performance. In complete contrast, when he gave an account of his impotence to Professor Eastman, the elaborate details in that account are consistent only with an attempt to embellish a version of events which would fit with what he claimed the deceased had said to him about his impotency. A further confirmation of that fabrication is his explanation of his "wife swapping" given to Professor Eastman; his explanation of that to Professor Eastman was his inability to provide sex for his wife. However his account given in his police interview of this activity makes clear that he instigated it for his own purposes and was apologetic for having done so.ii) Nor, even if the recovered account was genuine, could we accept it as a basis on which a jury could consider that they might rely.
a) Professor Kopelman pointed out that the longer after the event the memories were recovered the less reliable they were likely to be, though there was no cut off point.b) Many of the memories in Mr. Evans's case were recovered years after the event. His purported earliest recovered memories in 1998 did not provide a basis for a case of provocation.c) The later purported recovered memories, if genuine, might have done, but they could not, given the lapse of time and the way in which they emerged be regarded as reliable. We have set out why we regard the evidence in relation to impotence as fabricated, but even if it was not fabricated, it is impossible to see how it could be reliable, given his contemporary evidence to Dr Higgins that the sexual aspect of his marriage had always been good. It is also inconsistent with his account in his statement of 26 August 2002 (to which we referred at paragraph 35) in which he stated that at the end of July 1997 – after his discharge from hospital and shortly before the deceased finally left him - " we slept together and made love".iii) In assessing the genuineness of the recovered memory, we have also taken into account the pathology evidence which is said to provide independent supporting evidence of the truth and accuracy of part of the recovered memory. It was contended that a report by Dr Shorrock, a consultant forensic pathologist, provided for solicitors instructed on behalf of the appellant in December 2003, showed that the deceased was on her back when she was stabbed; this was consistent with his account that he had stabbed her whilst she was on the floor.
a) Dr Wayte, the forensic pathologist called at trial, expressed the view that the deceased must have had the upper part of her body in an upright position after receiving one or more of the stab wounds. As blood had fallen onto the front thigh area of her trousers, she must have been standing or sitting when the bleeding occurred.b) Dr Shorrock concluded that the stab wounds were all inflicted when the deceased was in the same position. This was unlikely to have been when she was standing. As she was unlikely to have remained motionless and must have collapsed at some stage, the explanation for the stab wounds being when she was in the same position was that she must have been on her back. The blood on her trousers could have been caused by dripping from the knife, from the appellant's wounds or been expelled from the air passages.c) Derek Wakley, an expert on blood pattern distribution, was asked by the Criminal Cases Review Commission during their very thorough investigation to review the contemporary evidence and the reports of the forensic pathologists. Although he accepted the view of Dr Shorrock that some of the injuries sustained by the deceased were most likely to have occurred whilst she was lying on her back on the floor, it was possible that one strike had occurred whilst she was still standing before falling or being forced to the floor. There was clear evidence that there were downward drops of blood on the trousers, but no attempts had been made at the time to determine whether they had come from the appellant or the deceased. If they had come from the deceased, then she must have been sitting or standing.Given the state of the evidence, it is not possible to reach a concluded view. Assuming however, that the blood did come from the knife held by the appellant, it would show that that the account given by the appellant as to the killing was consistent with the wounds on the body. However, it does not in any way show that the account of what led the appellant to kill his wife is either true or accurate and cannot displace the compelling factors to which we have referred.
IV:ISSUE 3: IS THERE FRESH EVIDENCE OF DIMINISHED RESPONSIBILITY?
(1) The appellant's case
(2) The evidence called before us
i) Dr Somekh considered that he was suffering from a moderate depression.ii) Professor Eastman considered that he was suffering from a moderately severe depressive illness; he reached this conclusion by a thorough review of the general practitioner and hospital notes and his examination of the appellant.
Professor Kopelman agreed with their views, but as we have noted did not examine the appellant for his first report, but only on 29 April 2009 for his second report.
(3) Our conclusion
CONCLUSION