England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL Friday, 13 December 2013

1. LORD JUSTICE LAWS: This is a Reference by the Criminal Cases Review Commission. On 5th October 2005 before His Honour Judge McKinnon at the Maidstone Crown Court, the appellant was convicted of a single offence of murder and sentenced to imprisonment for life. The judge specified a minimum term of 20 years less 240 days spent in custody on remand. He appealed his conviction and sentence with leave to this court complaining of the admission of bad character evidence from his former partner. On 29th June 2006 the full court, The President of the Queen's Bench Division, Crane and Jack JJ dismissed his appeal.
2. The basis of the Reference by the CCRC is that there is now fresh evidence which may support a defence of diminished responsibility, a defence that was not relied upon at trial. The appellant's advisers at that time had a psychiatric report from a Dr Llewellyn-Jones. She however did not support a defence of diminished responsibility. Her report was not relied on and she was not called to give evidence.
3. The essential facts, leaving aside for the moment the proposed new evidence, may be shortly stated. On 29th January 2005 a woman called Mary Malkin was found dead at No.2 Invicta House, a council flat in Margate. She had shared the flat with the appellant, who was her long-term partner. She had been strangled. The appellant had left the flat at about 8 am that day and had taken a train from Margate to Dover Priory. At 11 am, when he was on the train, he telephoned police to report the death. Outside Dover Station he begged a pound from a passer-by and mumbled something to the effect that his girlfriend had been strangled. He had facial injuries which he said had occurred in a road accident. In six calls to the police between noon and 1.35 in the afternoon he stated that someone had strangled his wife in their flat and he knew who had done it. He was arrested at 1.40 pm on suspicion of murder in an alleyway in Dover.
4. The prosecution case was that the appellant had killed the deceased in the course of a violent argument. CCTV footage at Invicta House excluded the possibility that anyone else might have been responsible. Both of them had been heavy drinkers and had a turbulent relationship. He had a history of violence towards partners. His former partner, Kate Clarke, gave Crown evidence to the effect that he had been controlling and violent and had tried to strangle her. After his arrest his blood alcohol level was found to be 363 milligrammes per 100 millilitres of blood, over four times the driving limit. The evidence of Kate Clarke was the subject of the first appeal to which we have referred.
5. The defence case at the outset was that someone else must have broken in and killed the deceased woman. Later however the appellant's contention was that he had been drinking and that if he had killed her he had no memory of it and no intention to do it. Professor Henry, a consultant physician, gave evidence that in his view an alcoholic blackout would not obliterate an event so terrible as a strangulation.
6. That then was the position at trial. The appellant applied to the CCRC for a review of his conviction on 7th January 2008. Grounds were advanced which however did not include or refer to fresh psychiatric evidence. The Commission made a provisional decision not to refer the case to this court and issued a provisional statement of reasons on 25th May 2010. The final decision followed. The Commission however agreed to reopen the case after judicial review proceedings were issued. Revised submissions were received.
7. The CCRC's effective statement of reasons now before this court is dated 20th September 2012. By that date the CCRC had obtained three reports from Dr Dinesh Maganty, a consultant forensic psychiatrist, respectively dated 15th July 2009, 8th January 2010 and 30th April 2012. There is also a letter from Dr Maganty to the CCRC. The CCRC concluded (see paragraph 91) that this fresh evidence supports a diminished responsibility defence.
8. It is convenient first briefly to review the relevant law relating to diminished responsibility. Section 2(1) of the Homicide Act 1957 was at the time of trial in this form:

"Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing."

There has been a good deal of learning relating to diminished responsibility and alcoholism. As is well-known, drunkenness is not generally a defence to any criminal charge, although it may negate a specific intent to do an act or produce a result where that is something that the Crown is required to prove. However, that tells us little about the law of diminished responsibility.

9. In Tandy [1989] 1 WLR 350 it was held in this court that a craving for alcohol would only give rise to an abnormality of mind for the purpose of section 2(1) of the Homicide Act if it was such that the defendant's use of alcohol was involuntary. Tandy has been reconsidered in Dietschmann [2003] 1 AC 1209, Wood [2009] 1 WLR 486 and Stewart [2009] 2 CrAppR 30. In consequence the law has moved on. Dietschmann shows that the defence of diminished responsibility does not require that abnormality of mind must be the sole cause of the defendant's acts in killing the victim - see per Lord Hutton at paragraph 18. Wood shows that Alcohol Dependency Syndrome, which is recognised as a disease which may fall within the scope of section 2(1) of the Homicide Act, may constitute an abnormality of mind even in a case where there is no brain damage (see paragraph 41, per Sir Igor Judge, President). Stewart recommends a stepped approach in summing-up in an alcohol diminished responsibility case to the jury as follows:

1. Was the defendant suffering from an abnormality of mind at the time of the killing?

2. If so, was it caused by disease or illness? As we have said, Alcohol Dependency Syndrome may qualify.

3. If it was so caused, did the abnormality of mind substantially impair the defendant's mental responsibility for his acts or omissions in being a party to the killing?

On this last question, impairment of responsibility, there is an important passage in the case of Wood which recalls the distinction between the voluntary and involuntary consumption of alcohol, a distinction which seems otherwise to have been rather side-lined in the cases after Tandy. Sir Igor Judge, President, said at paragraph 41 of Wood:

" If the syndrome does not constitute such an abnormality of mind, diminished responsibility based on the consumption of alcohol will fail. If, on the other hand, it does, the jury must then be directed to address the question whether the defendant's mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. In deciding that question the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily. Assuming that the jury has decided that the syndrome constitutes an abnormality of mind induced by disease or illness, its possible impact and significance in the individual case must be addressed. The resolution of this issue embraces questions such as whether the defendant's craving for alcohol was or was not irresistible, and whether his consumption of alcohol in the period leading up to the killing was voluntary (and if so, to what extent) or was not voluntary, and leads to the ultimate decision, which is whether the defendant's mental responsibility for his actions when killing the deceased was substantially impaired as a result of the alcohol consumed under the baneful influence of the syndrome."

10. As we have said, the CCRC concluded that the fresh evidence from Dr Maganty supports a defence of diminished responsibility in this case. We agree that it does so. Dr Maganty reviewed CT scans of the appellant's brain taken prior to the killing. They showed "clear atrophy of the brain which is fully consistent with alcohol related brain damage" (3rd report, page 6, paragraph 2). His alcohol dependence had been objectively documented for over 20 years (1st report, page 38, paragraph 1). He had been observed as suffering severe physical damage back to 6th January 1992 when liver damage secondary to alcohol consumption had been noted (2nd report, paragraph 1). He had renal failure on 18th January 2002 (3rd report, page 5). By the time of the offence abstinence from alcohol would lead to withdrawal symptoms and delirium tremors, Dr Maganty opined (1st report, page 43).

"If the defence of diminished responsibility is to be available to an individual who suffers with ADS [Alcohol Dependency Syndrome] at all, in my opinion the appellant would be a classical case ... from a medical perspective." (3rd report, page 9).

He was suffering from an abnormality of mind, that is to say Alcohol Dependency Syndrome, together with associated cognitive impairment (1st report, pages 38 to 43). His ability to control his drinking was practically non-existent (1st report, page 41). As for substantial impairment of responsibility, Dr Maganty considered that the appellant's judgment and ability to control his impulses were seriously and significantly impaired by the damage to his brain inflicted by alcohol dependence (1st report, page 43).

11. These conclusions are far distant from the view taken by Dr Llewellyn-Jones in her unused report which as we have said was in the hands of the defence at the trial. She did not then consider that the appellant's alcoholism constituted an abnormality of mind and as we have said she did not support the defence of diminished responsibility. The appellant has levelled substantial criticisms of her views. She did not consider the General Practitioner's records, or the CT scans taken shortly before the killing. It is not clear perhaps how much she knew of those. Relying on the Tandy case it seems she misunderstood the law of diminished responsibility. Dr Llewellyn-Jones has considered the case again. She has produced a second report dated 25th march 2010. This too is criticised. She now accepts that the appellant suffered from an abnormality of mind but her change of view is not really explained and in other respects her reasoning is flawed.
12. The Crown sought in writing to rely on Dr Llewellyn-Jones' explanations on accounts given by the appellant himself of the killing which led her to state (2nd report, page 5) that:

"Predominantly, [the appellant] was inebriated, jealous and angry at the time of the killing. I do not regard these states as beyond the ordinary."

This went of course primarily to the question of substantial impairment. What the appellant himself said forms an important part of the respondent's argument on this appeal. Mr Forgan this morning acting for the Crown made it plain that the focus of his submissions was not on abnormality of mind but on impairment of the appellant's responsibility for his acts.

13. Having had sight of Dr Maganty's reports the Crown instructed a consultant forensic psychiatrist themselves, Dr Joseph. He produced a report on 26th March 2013. He included among other things that Mr Williams has "an established psychiatric diagnosis of Alcohol Dependence Syndrome" which can be classified as an "abnormality of mind" and that "it is likely that the defendant was suffering from this abnormality of mind at the time of the killing of Mary Malkin." He also stated that he was unable to give an opinion as to whether his mental responsibility was substantially impaired at the time of the killing "because so little is known of the circumstances of the killing."
14. Following a directions hearing on 3rd June 2013, Dr Maganty and Dr Joseph helpfully produced an agreed note of answers to certain questions that were put to them. We shall refer to that shortly.
15. The first question for this court is whether the fresh evidence, that of Dr Maganty and in consequence that of Dr Joseph and indeed for completeness the further material from Dr Llewellyn-Jones, ought to be admitted given the terms of section 23 of the Criminal Appeal Act 1968. In this case the answer to that question is more straightforward than in some and we need not, with respect, set out the statute's details. The overriding question is whether admission of the fresh evidence is "necessary or expedient in the interests of justice". This has to be assessed against the jurisprudence as to the approach which this court should take to fresh evidence cases: see Ahmed [2010] EWCA Crim 2899. In that case Hughes LJ (as he then was) said this at paragraph 24:

"The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. ... Where fresh evidence is under consideration the primary question 'is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury'."

The learned Lord Justice was there citing an earlier case, Dial [2005] 1 WLR 1660 in the Privy Council.

16. It seems to us obvious that Dr Maganty's evidence is not to be ruled out as incapable of belief. So much is of course not contended by the Crown. Equally, it is clear that it cannot be castigated as something which ought to have been available at the trial. The defence had psychiatric evidence which did not, as we have said more than once, support a diminished responsibility defence. Moreover, Dr Maganty's evidence is surely capable of affecting the result had it been before the jury. We acknowledge however that we should view with a certain scepticism a defence that was not run in the court below at all; it must be right, however, on the particular facts here that we should consider the new material. We will admit Dr Maganty's reports and his letter to the Commission, Dr Joseph's and Dr Llewellyn-Jones' new material and Dr Maganty's and Dr Joseph's joint answers to the questionnaire as evidence in this appeal. We have considered all of these materials.
17. What then of Hughes LJ's question? Does the fresh evidence cause this court to doubt the safety of the verdict of guilty? The Crown acknowledged that where there is a disagreement between Dr Llewellyn-Jones and Dr Joseph, Dr Joseph is to be preferred. Indeed this morning it has been made clear to us that the Crown do not specifically rely on conclusions arrived at by Dr Llewellyn-Jones at all. There is accordingly no dispute, certainly no real dispute, but that there is here an established diagnosis of Alcohol Dependency Syndrome in the appellant's case and that this is capable of amounting to an abnormality of mind: See Dr Joseph's report, page 5 at paragraph C1 and C2. The real question in the case is whether this abnormality of mind substantially impaired the appellant's mental responsibility for his acts in killing the deceased woman. As we have said, that was the focus of Mr Forgan's submissions before us.
18. The Crown placed considerable emphasis on what they say were comprehensive lies told by the appellant about the circumstances of the killing as well as substantial evidence of a predisposition on his part to violence against his female partners, including but not limited to the deceased. We can best do justice to this part of the argument by citing this extract, with one amendment for accuracy's sake, from the Crown's further written submissions:

"The defendant's case was not that he did remember events on the night of the murder. On the contrary in his police interviews he described a peaceful evening ending with everything 'ok' between him and Mary Malkin. They had a cuddle and then had sex. Then because the flat was cold they got dressed and she put on jeans, a bra and a fleece. At first they lay facing each other, then he turned round and she cuddled into him. Before trial he served a defence statement on the prosecution confirming that his account was as set out in his interview. At trial this remained his defence. He stated that he had 'no memory of any argument with Mary on the 28th ... I do not recall any violent incident with Mary.' However, he came to accept that his account was not right and it changed from a denial of the killing to an acceptance that he must have been the killer. Evidence that has now become available since the trial is not only the medical evidence it is also the accounts that the appellant has given of events to Dr Llewellyn-Jones and to Dr Maganty. To Dr Llewellyn-Jones (before trial and before his defence statement) he said there had been an argument between the two of them 'precipitated by Miss Malkin's disclosure of a sexual liaison with another person.' He had felt extremely angry and jealous. He had tried to leave and she had tried to stop him. 'This had been the context of the killing.' The Crown submit that this cannot sit with the account given to the police in interview or the court in evidence. In his witness statement he again stated that there was an argument about her having sex with someone else and that he recalls 'vaguely' putting his hands out in front of himself and pushing her. There is no reference to them having had sex that evening."

19. This has to be considered in light of a document drawn to our attention this morning by Miss Trowler QC for the appellant. This is an attendance note of a conference held between the appellant and counsel on 1st September 2005, not long before the trial. In it the appellant said plainly enough: "I must have done it". That seems to us to be an important element in the facts which concern accounts given by the appellant himself of what had happened. We should add that we cannot conclude, as was suggested by Mr Forgan for the Crown, that had the fresh evidence been available at trial still no defence of diminished responsibility would have been run. That depends in part on an observation in a letter written by defence counsel to the CCRC. That letter however, which we need not read out, produces no such conclusion. In any case it seems to us plain that if there was proper expert material to support a defence of diminished responsibility, then subject to some extraordinary state of their client's instructions it would clearly have been counsel's duty to run such a defence.
20. These points about what was said by the appellant before and during the trial are of course important. Importance is also however to be attached to this joint observation of Dr Maganty and Dr Joseph in answer to question 3 in the questionnaire to which we have referred. This is what was said:

"Is there any psychiatric factor to support or undermine a finding of substantial impairment?

Answer: As a result of his alcohol dependence, the appellant's consumption of alcohol was not under his control and therefore any subsequent intoxication was involuntary. If the appellant was intoxicated with alcohol at the time of the killing and that intoxication was involuntary, then this could support a finding of substantial impairment. However such a finding is not inevitable but depends on the facts of the case. The appellant has not provided sufficient details of the killing to allow any psychiatrist to conclude whether his responsibility was substantially impaired or not. For example it is not possible to state whether, as a result of his involuntary intoxication with alcohol, his ability to form a rational judgment or exercise self control were substantially impaired.

If the appellant is aggressive and violent as part of his personality, independent of alcohol consumption, then this psychiatric factor would undermine a finding of substantial impairment, even if the defendant was intoxicated at the time of the killing."

We observe that these comments by the doctors perhaps tend to demonstrate the complexity of the substantial impairment issue.

21. That issue in our judgment cannot be sensibly addressed without some consideration of the question what is meant by the term "mental responsibility". This has received rather less attention in the cases than the meaning of abnormality of mind. The concept of mental responsibility, quite different of course from moral responsibility, describes in our judgment the extent to which a person's acts are the choice of a free and rational mind. As it happens that is close to the statute in its current form (see section 52(1) of the Coroners and Justice Act 2009). Such a choice may be inhibited by many things. The effect of drink is plainly one. But the effect of drink on its own will not necessarily bring the case within section 2(1) of the Homicide Act for of itself the use of drink, even excessive use, is not an abnormality of mind. Here, in this case, the preponderance of the evidence however is that there was an abnormality of mind. We have given some of the references to the fresh evidence. Whether that caused a substantial impairment of the appellant's ability to bring a free and rational mind to bear on what he did is not necessarily concluded in favour of the Crown by lies he may have told or did tell or shifts of ground after the event. It is pre-eminently a jury question. We cannot decide pro or con the Crown or the defence. However, in Hughes LJ's words, the fresh material causes us to doubt the safety of the guilty verdict.
22. For those reasons, the appeal must be allowed. In the circumstances it is unnecessary to go into the second ground of appeal, namely the proposition that the fresh evidence undermines Professor Henry's testimony that an alcoholic blackout would not obliterate the recollection of a strangling, indeed Miss Trowler indicated this morning that she did not regard that as a freestanding ground. It is unnecessary also to say anything about the assault proposed to be made on Dr Llewellyn-Jones' character, by the appellant by reference to an incident unrelated to this case. For the reasons we have given, this appeal against conviction is allowed.
23. MR FORGAN: My Lord, I have already indicated the Crown's position in the light of such a ruling was going to be to seek a retrial. May I make the formal application?
24. LORD JUSTICE LAWS: Miss Trowler?
25. MISS TROWLER: My Lord, we do not see that we can oppose that. We accept because of the seriousness of this allegation and because there are issues to be determined, then it must be in the interests of justice that there be a retrial.
26. LORD JUSTICE LAWS: We provisionally of course have thought about that and it also represents our own view. So we would make such an order. Before I deal with this are there any other matters?
27. MR FORGAN: We will have to lodge a new indictment.
28. LORD JUSTICE LAWS: I will deal with that.
29. MR FORGAN: The Crown certainly apply that Mr Williams remain in custody until the new trial.
30. LORD JUSTICE LAWS: Very well. We allow the appeal and quash the conviction. We have to specify the counts on which there is to be a retrial. Plainly that is the only count, the count of murder. We direct that a fresh indictment be served pursuant to section 8(1) of the Criminal Appeal Act and we direct that the appellant be arraigned on the fresh indictment within two months of today's date. Section 8(1). We need to decide whether he is to be held in custody or released on bail. Presumably there is no application to this court for bail?
31. MISS TROWLER: No application.
32. LORD JUSTICE LAWS: We are to consider whether we should make an order under section 4(2) of the Contempt of Court Act. That would be to restrict reporting of these proceedings until after the new trial. I do not see the necessity for it in this case, speaking entirely for myself. Any submissions?
33. MR FORGAN: I make no submission on that.
34. MISS TROWLER: My Lord, no.
35. LORD JUSTICE LAWS: We make no section 4(2) order. We are asked to direct that the venue for retrial should be determined by the Presiding Judge of the relevant circuit. That will be the South Eastern Circuit. There is no particular reason why it should not go back to Maidstone is there?
36. MR FORGAN: My Lord, no.
37. LORD JUSTICE LAWS: Formally it will be a matter for the Presiding Judge if it is likely to be heard there. We are supposed to indicate, although you no doubt know it already, that the original Crown Court legal aid order does not cover a retrial. Since the end of June 2010 representation orders for a retrial in these circumstances cannot be made any longer by this court. Legal representatives should be told that applications for such orders should be made to the Highbury Corner Magistrates' Court.
38. I do not think there is anything else? Unless I am much mistaken those are all the procedural and administrative matters with which we are obliged to deal. Is there anything else?
39. MR FORGAN: Not from the Crown.
40. LORD JUSTICE LAWS: In this very unhappy case it only remains for us to thank counsel for their assistance.