England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE SEDLEY
T19921260

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/02/2013

Lord Justice Hughes:

1. This defendant was convicted of murder as long ago as December 1992. His case at trial had been that although he killed the victim and clearly intended at the least to do him very serious harm, his mental responsibility for what he did was substantially impaired. The jury considered but rejected that partial defence of diminished responsibility. He never attempted to appeal against that conviction. However, he now seeks a twenty year extension of time for leave to appeal, and he contends that there is new evidence about his condition which makes the conviction unsafe.
2. In April 1992 the defendant was 20 years of age. He had a reputation for aggression and was on bail pending trial for wounding a taxi driver in the neck with a knife. He was living for most of the time on one of a number of boats moored along the riverside in Peterborough. He worked informally for the owner of the boats ("Graham"), in particular as a 'security' man, because the boats were sometimes subject to criminal damage. Graham had recently been living with a girlfriend called Stephanie, but they had parted because she had taken up with a man called Derek Mileham and was living with him on one of the boats, together with her two daughters aged about 8 and 6. Relations between Stephanie and Graham remained somewhat fragile, and the latter and Mileham did not get on. It was the fact that Mileham had been convicted and sentenced in the past for offences of child sex abuse. Stephanie was aware of this.
3. In the first week of April relations between Graham on the one hand and Stephanie and Mileham on the other worsened somewhat. She had helped herself to a CD player from the boat where Graham lived. She and Mileham were said to owe money to Graham for electricity, and perhaps for rent. On Thursday 2 April 1992 at about 6 pm the defendant and at least 3 others arrived outside the boat where she and Mileham lived. One of the others, Chua, went to the door. The others stood on the towpath, one of them holding a bargepole. Chua demanded that Mileham come with them and also wanted the money. Stephanie responded by producing the money for the electricity bill, but also by using a kitchen knife on Chua, whose shoulder was cut. In the ensuing eruption, the boat was smashed by the defendant and it may be by others. When Stephanie and Mileham emerged, each carrying one of the children, in an attempt to leave, the defendant swung the bargepole at Mileham, striking both him and the child. Mileham dropped the child and the defendant set about him first with the pole and then with a large knife he was carrying. He beat him about the head with the pole, causing a large measure of internal bleeding in the brain, although this would not by itself have been fatal. He then stabbed him twice, once on the knee but the second time directly through the heart, killing him. The defendant and his friends made off. He made an unsuccessful attempt to get rid of the knife, but the police rapidly traced him and recovered it.
4. Although the summing up has not survived the passage of years, it looks as if the sole live issue at the trial so far as this defendant was concerned was diminished responsibility. There cannot have been much room for argument about intent and there was no question of self defence. The defendant did not give evidence. He was represented by extremely experienced leading and junior counsel.
5. Two consultant forensic psychiatrists had reported for the court, Drs Pinto and Bowden. They agreed that there was no psychotic or other mental illness, nor any cognitive defect. There were, however, severe personality characteristics. The principal features were marked aggression, impulsivity, irritability, untruthfulness, recklessness, violence and an interest in fires. The doctors recorded that there had been severe behavioural disturbance in the defendant ever since early childhood. His parents had separated when he was very young and he lived with neither, but chiefly with his grandparents, who could not cope with his behaviour. He had been ejected from his nursery, which had concluded that he would not be manageable in mainstream school. He had spent two years between the ages of 5 and 7 in a child psychiatric unit, rather than at school, and at 7 had been placed in a residential school for children with such problems. There had been many episodes of aggression and fighting there. At some stage as a child, he had developed an interest in fires and had started several. He had developed a reputation as a hard man. After being expelled from the residential school at the age of 15, he had been convicted of offences which included arson (throwing a petrol bomb), multiple burglaries, deception and possessing a firearm. He had served a sentence of ten months' custody. He was, on his own account, regularly committing burglaries in the years before the killing of Mileham. He was, as said above, on bail for wounding a taxi driver with a knife when the current offence was committed, and he pleaded guilty to that offence at the court which tried him for the murder. Dr Bowden classified his condition as a severe personality disorder, of the kind which would now be called dissocial or antisocial, and expressed the view that it would have substantially impaired his responsibility (although this was of course a matter for the jury). Dr Pinto, whilst not attaching the same classification, essentially described the same condition. His conclusion was that the defendant fully understood the implications of his actions and that his mental state and responsibility was not significantly diminished.
6. It is fairly clear, therefore, that the first limb of diminished responsibility, an abnormality of mind, was established by the psychiatric evidence. The issue for the jury was, clearly, whether on all the facts the defendant's mental responsibility for his actions was substantially impaired. The jury decided that it was not.
7. The defendant's present application is based upon the fact that it has emerged subsequently that he (and others) were physically abused by the staff at the residential school. The headmaster and a second teacher have subsequently been convicted of cruelty. The defendant made two witness statements for the Crown, setting out cruel punishments such as being locked in a cellar, or beaten, or made to eat soap. He gave evidence at the trial, although verdicts of not guilty were delivered in relation to counts charging specific offences against him. His complaints of physical abuse had emerged in about 2003. A parent of a boy at the school had made a serious complaint against the headmaster and the police had conducted a trawl of ex-pupils in an effort to see whether other evidence of cruelty existed. The defendant was visited in prison and made the statements mentioned. He also brought a civil action against the school, which was settled in his favour much later in January 2011.
8. In addition, the defendant asserts that he was sexually abused at the same school, not by any adult but by other boys, first when nine and then, after about a four year gap, when he was 13-15. The abuse included forcible buggery. His case is that all this emerged only gradually in the course of therapy in prison in or about 2005; the best information we could glean was that the defendant had not mentioned any sexual abuse by late 2004, but it was a known allegation by February 2006. Previously, he says, he had suppressed it.
9. Now that these complaints have emerged, the defendant has been re-assessed by two further consultant psychiatrists, Drs Nimmagadda and Cumming. They add to the diagnosis made at the time of trial two elements. First, the behaviour of the young defendant as a child would meet the modern classification of Attention Deficit Hyperactive Disorder (ADHD). They do not dissent from the description of it as a personality disorder as an adult of around 20, at the time of the killing, but it is also possible, and in Dr Nimmagadda's view likely, that the ADHD persisted, as it may, into this period of his life. He does not suffer from adult ADHD now. Secondly, he was recorded by the prison and by experienced doctors who saw him in 2003-2006 as reporting symptoms of Post Traumatic Stress Disorder ("PTSD"), such as anxiety, nightmares, flashbacks and interference with sleep. This, they conclude, is consistent with a reaction to abuse as a schoolboy at the residential school. Thus, they agree with the two doctors who reported in 1992 that there is an abnormality of mind, and its characteristics are in most respects the same, but they identify additionally the PTSD, because they have the information about physical and sexual abuse at the school, which was not available to Drs Pinto and Bowden.
10. In their written reports for this court, on the basis of what they had been told, both doctors expressed the view that the killing of Mileham could well be explained as a consequence of, in particular, the PTSD. It was consistent, they advised, with an acute reaction to learning that Mileham had convictions for child sexual abuse, and to seeing him holding a child. That could well have triggered painful memories of his own abuse, and led to displacement to Mileham of his anger and anxiety about it.
11. Ms Wade's careful submission on behalf of the defendant is that this is fresh evidence which casts real doubt on the safety of the verdict rejecting diminished responsibility. If this evidence had been before the court of trial then it is likely, she submits, that a different conclusion would have been reached. There is, she submits, a clear link between the new information about sexual abuse and the killing. We have accordingly heard this evidence de bene esse in order to examine this argument. Both doctors kindly attended to give evidence before us, and we were very grateful to them for their help.
12. The medical reasoning on which this application is based is neatly summarised by Dr Nimmagadda in the following passage from his report:

"Mr Jackson maintains that he had earlier helped the victim in obtaining accommodation on the boat. However, on the day, after learning that the victim was a paedophile and had convictions for child sexual offences, he, along with three others went to the scene to ask him to leave. He maintains that he attributes the bruises he saw on the children of the victim's partner, Stephanie, were caused by the victim (sic). From his description I gained the impression that he believed the children were at risk of abuse from the victim and it reminded him of his own abuse as a child. In this respect I believe his PTSD independent of other mental health conditions is likely to have a significant bearing on his behaviour so as to diminish his responsibility for his actions. Mr Jackson comes across as someone who has serious antipathy towards child offenders in the light of his own childhood abuse. The victim apparently walked out of his accommodation into the sight of Mr Jackson with a child in his hand and that made him think that he was using the child as a shield. This is likely to have led to transference of his anger against his own perpetrators towards the victim."

13. It has to be said that there is reason to be less than sure that the defendant's account of sexual abuse in the school is accurate. It is undoubtedly common experience that those who have been unfortunate enough to experience sexual abuse may suppress it internally, and may be very reluctant to disclose it externally. It is well recognised that they may feel guilty about it, or that it reflects in some way on their own self-worth or manhood. It is, however, a little surprising that when faced with a charge of murder, and at risk of a sentence of life imprisonment from which the only route to escape was the defence of diminished responsibility, and when being interviewed by psychiatrists and his lawyers, the defendant did not mention the history to any of them. If that be explained, as it might be, it is rather more surprising that when events at the school were being gone over, no doubt time and time again, in 2003-2005, the sexual abuse should not have been mentioned then either. Moreover, from about July 2003 the defendant was undergoing no doubt intensive therapy at HMP Dovegate, where the staff will by then have been extremely familiar with the possibility of suppressed child abuse, and the inmates will undoubtedly have included many sex offenders encouraged to talk about their offences and experiences. It might have been expected that any history of his own would emerge then, given that he was speaking of the physical abuse. There are also signs in some of the prison material that a connection between sexual abuse and his offence may at times have been suggested to him. However, those who dealt with this defendant in the prisons in this period appear to have accepted the truth of his account, and the prison material which we have is second or third hand and does not enable us to assess afresh the manner in which the complaint emerged. Despite the reasons for doubt, we think that we ought to assume in his favour, without deciding, that his account of sexual abuse by other boys at school is accurate. We make the same assumption about the complaints of physical abuse, notwithstanding the verdicts in the criminal trial and the manner in which they emerged in response to an invitation from the police; the civil claim was conceded and once again the defendant's account was treated by those in the prisons as persuasive.
14. However, when the case is fully examined, the suggested link which is at the centre of the new analysis disappears.
15. Inspection of the evidence available at the time of trial reveals the following.

i) The defendant disliked Mileham and had done so for some weeks, quite independently of Mileham's offending history. The defendant, and various of his friends, took Graham's part in the breakup of the relationship between Graham and Stephanie, and they blamed Mileham for causing it. The defendant told the police in interview after the killing that Graham had been good to Stephanie and had paid off her debts.

ii) The defendant told the police in interview that Mileham had been responsible for damage to the boats, and thus for his having to stay up at night on guard in the days immediately before the killing. Mileham was, the defendant asserted, either doing it himself or paying someone else to do so. The defendant did not mention this to either Dr Nimmagadda or Dr Cumming and they do not appear to have been aware of it.

iii) There had been fights between the defendant and Mileham in the weeks leading up to the killing. The defendant told Dr Pinto of this back in 1992, but not Dr Nimmagadda in 2011. Dr Cumming in his recent report had discovered this for himself from the contemporaneous records; the defendant minimised it and told him not only that the two men had quickly made up their differences after drunken spats, but that there was no animosity between them; the latter assertion is simply untrue.

iv) The defendant told the police in interview that he also believed that Mileham was about to "be a witness against somebody". In the code of the criminal fraternity of which he was part, that was no doubt a significant complaint about Mileham. Neither Dr Nimmagadda nor Dr Cumming were told of this.

v) It is certainly true that an additional reason why the defendant disliked Mileham was because he had been convicted of sex offences against children. In the universal contemporaneous criminal argot, Mileham was "a nonce" (shorthand for the euphemism 'a bit of nonsense'). Such people were, and are, regarded by many in the criminal world as beneath contempt, and whether or not they have themselves suffered abuse. However, very importantly, the defendant did not learn on the day of the killing that Mileham was a sex offender. This had been general knowledge amongst his set for at least a month. It had been discussed on several occasions. The evidence was that around Christmas time Mileham had called the defendant a 'nonce', which would have been a serious insult as well as inaccurate. The defendant had told a girl in their set that he was 'going to get' Mileham. It was her evidence that he had said this time and time again from about the third week in February onwards when his group was drinking together. The defendant's account to both Dr Nimmagadda and Dr Cumming, that he learned of Mileham's past only on the day of the killing, cannot be true.

vi) The defendant's accounts to Dr Nimmagadda and Dr Cumming were both circumstantial but they are consistent neither with each other nor with the evidence from 1992. He told Dr Nimmagadda that he had found out on the day of the killing about Mileham's history, and had in consequence gone to the boat "to ask him to leave". He told Dr Cumming that his friend Chua had arrived in the public house where he was drinking to say that Graham had asked him (Chua) to fetch Mileham to him and to collect the rent money, and that Chua had then revealed Mileham's history. The 1992 evidence makes it clear that Chua had indeed been asked by Graham to fetch Mileham and to collect money, and this is what Chua actually demanded on arrival. There was no question of a plan to eject Mileham there and then from his home on the boat, much as the defendant may well have wished to deprive him of it. On the contrary, the defendant told the police in interview that Graham had warned him not to beat Mileham up, because it might rebound against the interests of whoever it was that Mileham was thought to be going to give evidence about.

vii) The 1992 evidence makes it clear that the day of the killing was giro collection day for the defendant and his friends. After obtaining their benefit money they had adjourned to the public house. It was there that Chua arrived, with the message from Graham that Mileham should be asked for money and to be taken to see Graham. At this, the defendant drew out from his clothing two separate knives which he was carrying and announced "I'll kill the bastard". Some time later in the early evening he, Chua and at least two others went to the boat. There was violence in the air before there was any sight of Mileham carrying a child. From the beginning, when Chua went to the door, the other three were standing menacingly on the towpath and one of them, probably the defendant, carrying a bargepole. It is certainly true that Stephanie then reacted violently herself, using a knife on Chua, but the defendant then smashed all the windows in the boat with the bargepole; this was before there was any sighting of Mileham.

viii) In interview the defendant told the police that he did not regret what had happened. The boat owner, he said, had been good to Stephanie, and now she had taken up with a sex offender. Mileham had been trying to take over and acting as if he owned the place. The dispute with him, he said, went back months and had been building up. The children, he said, were in danger; Mileham was a sex offender and also smoked cannabis in front of them. The defendant had, he said "just blacked out, I was that mad." He had broken all the windows in the boat in his anger. He said that Mileham had been standing in front of him when he stabbed him; he had "just plunged the knife in".

16. It follows that this was not a killing committed as an acute reaction to recent discovery that Mileham was a sex offender followed immediately by seeing him carrying a child, and thus arguably a sudden displacement of anger about the defendant's own past abuse. It is certainly true that one of several reasons which the defendant invoked for active dislike of Mileham was that he was a 'nonce', but this was only a part of the story. Moreover, the defendant had been planning to hurt Mileham for some considerable time.
17. Dr Nimmagadda and Dr Cumming were asked about the 1992 evidence before us. Both believed that their diagnosis of PTSD could stand with it. But both also immediately expressed the opinion that the history of events would be extremely relevant to whether the defendant's mental responsibility for the killing was substantially impaired. Dr Cumming said that it affected the 'causality', in other words the suggested link between the past abuse, and the PTSD consequent upon it, and the offence.
18. There are some difficulties about the proposition that the defendant was affected by PTSD in 1992. There is no evidence from any source of any symptoms of anxiety or otherwise of PTSD at that time, and despite the examination by two psychiatrists for the purpose of considering diminished responsibility. Nor is there any sign of PTSD now, or at any time except in the period of about 2003-2006 when there was intensive discussion in the prison about the defendant's time at the school. However, we accept that psychiatric understanding of PTSD has developed over the past 20 years, and we do not think that we should reject the considered evidence of Drs Nimmagadda and Cumming that there is a possibility that the condition existed in this defendant in 1992 and could have been triggered by the kind of sudden discovery that Mileham had an abusing past together with seeing him carrying a child. However, assuming the diagnosis, it is, for the reasons which we have set out, quite clear that the killing was not triggered by such a combination of sudden events.
19. There is a separate additional factor which appears to have been an important one in the killing. The defendant was undoubtedly at the time an extremely heavy drinker and cannabis user. He told Dr Pinto that he had consumed so much alcohol and cannabis on the day of the killing that he could remember only vaguely what had happened. The assertion of lost memory was false, as the police interview demonstrated and as Dr Bowden pointed out. But the history of gross drinking was accurate. Dr Bowden set out his reported symptoms of amnesia, shakes and relief drinking, as well as the defendant's acceptance that he was more likely to commit offences when drunk. However, twenty years on the defendant told Dr Nimmagadda that he had had only 'a couple of pints' on the day of the killing, and Dr Nimmagadda, who knew of the history of alcohol dependence, accordingly discounted alcohol as a factor, because if that was all the defendant had had he would, as a hardened drinker, scarcely have been affected by it. But the 1992 history shows that the defendant's account to Dr Nimmagadda cannot be true; on the day he killed Mileham he had had a lot to drink and on his own account a lot of cannabis also. Certainly the group had been in the public house from the time they collected their giros in the morning until sometime in late afternoon; where else they might have been after the public house closed history does not relate. To the extent that the defendant's inhibitions were reduced by intoxication, as it seems that they must have been, that is an explanation for his killing which is not diminished responsibility in law.
20. Lastly, the evidence makes it clear that there is no question of the defendant's abnormality of mind, whatever its best description, being attributable entirely to events at his residential school. He had an established pattern of very serious antisocial behaviour long before he went there.
21. The question for this court is whether the conviction is safe or unsafe. The decision about that is inescapably laid on this court: see Leveson LJ in Burridge [2010] EWCA Crim 2847 at [99]-101] and the cases there reviewed. That is especially so where, as here, there is fresh evidence advanced twenty years after the event. Having reviewed the evidence as a whole, we think that we should assume in favour of the defendant (without deciding) (i) that his experiences at the school included the physical and sexual abuse of which he has spoken and (ii) that he may well have been subject to PTSD at the time of the offence, albeit largely or wholly asymptomatic. We are, however, wholly satisfied that the fresh evidence advanced to us provides no reason for doubting the jury's conclusion that his mental responsibility for this killing was not substantially impaired. The conviction is not unsafe.
22. Given the contents of the new psychiatric reports, we take the view that the case was arguable. Accordingly we grant leave to appeal and the necessary very long extension of time. We formally receive the fresh psychiatric evidence under section 23 Criminal Appeal Act 1968. However, for the reasons given, the appeal must be dismissed.
23. We should add this. First, had this appeal been allowed and a conviction for manslaughter substituted, it is clear to us that the only proper sentence would have been a discretionary life sentence. The defendant's serious personality disorder and/or other conditions, combined with his history of unpredictable violence and fire setting meant that he presented a danger of very serious future offending for a period which could not be estimated. He has, we know, now passed the end of the minimum term which was set as part of his 1992 sentence. It follows that in practice his position would not greatly have altered even if the conviction for murder had been unsafe and had been replaced with a conviction for manslaughter. Whether and when he is released is a matter depending on the assessment of current risk and that is a decision committed to the Parole Board. It is not for us and we do not have the materials to consider it. No doubt the fact that his present assertions about events 20 years ago are unreliable may have some relevance to that question. We record, however, that we are conscious that over that very long period he has been subject to intensive counselling and repeated discussion of his history. How far that has altered his memory we simply do not know.