England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
The Hon Mrs Justice Patterson

		Liverpool Crown Court Queen Elizabeth II Courts LIVERPOOL
		15/01/2016

Lord Thomas of Cwmgiedd, CJ:

Introduction

1. On 5 December 2014 at the Crown Court at Manchester before Patterson J and a jury, the appellant was convicted of the murder of John McHale on 1 March 2014 and of arson with intent to endanger life. He was sentenced to life imprisonment with a minimum term of 30 years, less time on remand, with a concurrent determinate sentence for the offence of arson. His co-defendant, Francis Mitchenson, was acquitted.
2. He appeals by leave of the Single Judge on two grounds:

i) The judge wrongly admitted on the application of his co-defendant under the bad character provision of the Criminal Justice Act 2003 (the CJA 2003) evidence of the bad character of the appellant.

ii) The judge was wrong in refusing to admit on common law principles evidence from a psychiatrist on the mental state of his co-defendant in relation to that defendant's credibility and propensity to violence.

The factual context

3. The deceased, the appellant (who was born in June 1975 and thus 38 at the relevant time) and Mitchenson (who was born in June 1982 and thus 31 at the time) were residents at Syl's Guest House, Manchester. This was a hostel that housed ex-offenders who were dependent on State benefits and many of whom had drug or alcohol related problems. The deceased had been a sex offender and was bullied by many in the house.
4. The hostel had 12 bedrooms. It had been equipped shortly before the fire with a fire alarm and sprinklers. In February 2014, it was undergoing redecoration by a painter; that was continuing on 1 March 2014. Most rooms were on the first floor but rooms 2 and 3 were in an enclave on the second floor.
5. From CCTV evidence of the movements on 1 March 2014, the only residents present in the hostel just before 3.30 p.m., when the murder occurred in room 3, were:

i) Earl Warren, the warden.

ii) Tomasz Skwarek

iii) Michael Niles

iv) Jacinta Davis

v) The appellant who resided in room 2

vi) Mitchenson

vii) The deceased who resided in room 3

There was clear evidence that eliminated Warren and Jacinta Davis as possible murderers of the deceased. Although the prosecution's case was against the appellant and Mitchenson, the involvement of Skwarek and Niles could not be ruled out on the evidence before the jury.

6. Shortly after 3.30 p.m. the fire alarm sounded. False alarms were common. So the warden tried to reset the alarm, but it would not reset. The system showed that the alarm was coming from the second floor. He went to the second floor and found smoke coming from room 3. The fire brigade was telephoned and arrived quickly. Fire officers found the room engulfed in smoke. On entry they found the deceased's body was on the floor. He was still alight on his face and in his groin. A post mortem examination showed that the deceased had received multiple injuries to his face with facial fractures, there was a ligature round his neck and he had 39% carbon monoxide in his blood. The cause of death was solely due to carbon monoxide poisoning.
7. Expert evidence showed accelerant had been poured on to the body. Although it could not be proved the accelerant was white spirit, there was a bottle on the premises for use in the redecorating and it was found in room 3.

The prosecution case against the appellant

8. The prosecution's case was that the appellant had tried to get the deceased's post office card and PIN. When he refused the appellant attacked him, inflicted the serious injuries and then set the body on fire.
9. The prosecution relied upon a number of matters:

i) A single fingerprint of the appellant was found on a white spirit bottle in room 3. It was the prosecution's case that it had been brought by the appellant from the dining room where the painter had left it. The appellant's response was that he had indeed moved the bottle when it had been left in another part of the premises.

ii) The alarm and sprinkler system would have operated within a minute of the fire starting; the person who started the fire must have been in close proximity to room 3. The appellant's case was that the time was not that short. There was time enough for the others to have gone back to their own rooms.

iii) An orange pillow was found at the foot of the deceased which had a spot of blood that completely matched the appellant's DNA. It was the appellant's case that the blood had come from bed bug bites; he had left the pillow in room 3 when he had previously occupied that room.

iv) A duvet was found on the burning body. A matching pillow case was in the appellant's room. The appellant said it was not his; there was no rational distribution of bedding in the house.

v) On 3 March 2014 police seized all the clothing of potential suspects. When this was done, the trainers, which the CCTV had shown the appellant had been wearing on 1 March 2014, were not available. It was the appellant's case that he had agreed to buy the trainers which he was wearing on 1 March 2014 and they had been handed over to him. As he could not pay, he had to return the trainers.

vi) The appellant had given contradictory accounts.

vii) Mitchenson had stated in interview (but not in earlier accounts) that the appellant had gone to the deceased's room and come back with the deceased's post office card, telling Mitchenson that he had been unable to get the PIN. He then left the room again and the alarm went off. At a subsequent interview Mitchenson said that the appellant had told him there had been a little scuffle with the deceased because the deceased would not hand over his PIN.

Case against Mitchenson

10. The prosecution case against Mitchenson on its submissions depended upon establishing the case against the appellant. The case was further advanced by the following:

i) He had equal opportunity to go into the deceased's room.

ii) His accounts to the police were inconsistent and contradictory.

iii) He admitted lying in his first and second statements to the police.

iv) It must have been a joint attack because of the speed with which it was executed.

11. Mitchenson ran a "cut throat" defence against the appellant saying, as we have set out, that the appellant left the room, came back with the post office card and left again and that he had made various inculpatory comments.
12. The position of the appellant was that, as he had maintained he had not gone into the deceased's room and was not involved, he was in effect saying that Mitchenson was likely to have killed the deceased. He was not, however, making a positive case that Mitchenson was the murderer, but he was amongst those, together with Niles and/or Skwarek, who might have killed the deceased.

The ruling to admit the evidence of the bad character of the appellant on the application of the co-accused

13. The appellant had a substantial list of previous convictions, running to some 15 pages. He had first begun his offending in 1990 and there were numerous offences, including those to which we refer at paragraph 16 below and many offences of dishonesty, including burglary, theft, and possession of offensive weapons.

(a) The application by his co-defendant

14. The prosecution made no application to admit the convictions, either in relation to a propensity to lie or a propensity to violence, under s.101(1)(d) of the CJA 2003 as being relevant to an important issue between the defendant and the prosecution. We were told that one of the considerations which the prosecution took into account was the provision in s.101(4) which required the court to have regard to the length of time between the matters to which the evidence of bad character related and the matters which formed the subject matter of the trial.
15. However, shortly before the trial began, on 12 November 2014, Mitchenson applied to adduce the evidence of the previous convictions of the appellant under s.101(1)(e) on the basis that, the evidence "had substantial probative value in relation to an important matter in issue between the defendant and the co-defendant".
16. The judge granted the application in part and admitted three of the appellant's previous convictions:

i) A conviction for arson when the appellant was 15, some 23 years before the offence for which he was being tried. The facts were that the appellant, with other youngsters, had gone to a wood yard and set some of the wood on fire using a can of petrol; the can had then been kicked causing a larger fire.

ii) Two convictions under s.20 of Offences Against the Person Act 1861 for causing grievous bodily harm. The first arose out of an assault during a football match in 1995. The second was in 2003; on the appellant's account which was not challenged, it occurred when he had punched a man who had jumped at him and broken his jaw.

(b) The ruling

17. The judge gave a detailed ruling. The appellant had by implication put in issue the credibility of Mitchenson and had cast Mitchenson amongst a group of people who, on his own account, were suspected of murdering the deceased. In those circumstances evidence relevant to whether the appellant had a propensity to be untruthful might be admissible under s.101(1)(e) of the CJA 2003.
18. She considered that the matter in issue between the defendants were disputes of fact as to where they were at the material time and as to credibility. The evidence in the form of previous convictions had substantial probative value. She referred to the decision in R v Randall [2004] 1WLR 1413, [2004] 1 Cr App R 26, a decision of the House of Lords on the common law. Applying that decision, she concluded that, although the prosecution might be precluded from leading evidence that did no more than show a defendant's propensity to commit the crime charged, no reason of policy or fairness required the exclusion of evidence when tendered by a co-accused to disprove his guilt. A defendant was entitled to disprove his guilt and might do so by tendering evidence of a propensity on the part of a co-accused where to do so would show that his version of the facts was more probable than that of the accused.
19. On that basis the previous conviction of arson involving an accelerant was sufficiently unusual for it to have substantial probative value under s.101(1)(e). Similarly the convictions for offences of causing grievous bodily harm in 1995 and 2003 were of substantial probative value as they would tend to show that Mitchenson's version of the facts was more probable than that of his co-accused.

(c) The admission of the other convictions

20. It had been made clear by the appellant that if the application was refused, then there would be no bad character application by the appellant. If it was granted, such an application would follow. Following the ruling, applications were made on behalf of the appellant to adduce evidence of bad character against Mitchenson, Skwarek and Niles. These were granted in part with the consequence that the appellant's dishonesty convictions were admitted.

(d) The appellant's submission on appeal

21. It was submitted on behalf of the appellant that the appellant's convictions should only have been admitted if they had substantial probative value in relation to an important matter in issue between the parties. The convictions could only have probative value in relation to propensity to arson or violence. Given the different nature of the two previous convictions for violence and the murder and the time interval between them, it was difficult to see that those two convictions gave rise to a propensity to commit murder. In relation to the arson conviction, the nature of the arson offence committed when the appellant was 15 was very different to the circumstances of the murder 23 years later. Although an accelerant had been used in both, it was clear that the first offence had been an offence of the more common kind arson committed by youths whereas the second had been an attempt to burn the body to disguise the injuries or to destroy the body. The convictions could not be relevant to credibility which was the ground upon which the judge had admitted the convictions.
22. Furthermore, in relying on the decision in Randall, the judge had relied on a decision under the common law. The common law had been abolished by s.99 of the CJA 2003. The test was that set out in s.101(1)(e).

(e) Our conclusion

23. It is clear in our view that the judge was bound to determine the issue of admissibility entirely by reference to the bad character provisions of the CJA 2003 and not by reference to the common law principles set out in Randall, as the provisions of the Act abolished the common law rules.
24. Although the decision in Randal and other common law cases are referred to in Archbold (2016 edition at paragraphs 13-69 – 13-72a), they are not relevant to the determination of the admissibility which is governed by the statutory provisions. It is particularly important that the test set out in the CJA 2003 is the test solely applied for admissibility as, unlike the position between the prosecution and the defendant, the court has no discretion to refuse the admission of the evidence where the statutory conditions for admissibility are met: see De Vos [2006] EWCA Crim 1688 at paragraph 11 for an illustration of application of this provision. The test of "substantial probative value" to an important matter in issue between a defendant and a co-defendant under s.101(1)(e) is a higher test than that applicable under s.101(1)(d) of "relevance" to an important matter in issue where the issue arises between the defendant and the prosecution. The rationale for this distinction was explained by the Law Commission in its Report Evidence of Bad Character in Criminal Proceedings (2001, Law Com No 273 at paragraphs 14.41 to 14.46). The summary of the law in Blackstone at paragraph F.12-70 emphasises the difference between the statutory regime and Randall.
25. It was rightly not argued by the prosecution on the appeal that the admissibility of the convictions could be based on substantial probative value in relation to credibility. The provisions of s.104 (1) were therefore not in play, as those provisions relate only to the position where the matter in issue between the defendants is propensity to untruthfulness or credibility: see Daly [2014] EWCA Crim 2117 [2015] 179 JP 114 at paragraph 14.
26. Thus, as this court explained in R v Phillips (Paul Andrew) [2011] EWCA Crim 2935, [2012] 1 Cr App R 25 at paragraph 37, following the earlier decision in Braithwaite [2101] EWCA Crim 1082, [2010] 2 Cr App R 18 (in respect of s.101(1) (b)), the judge had to answer two questions in relation to propensity: (1) whether the evidence had substantial probative value and (2) whether the matter in respect of which the evidence was substantially probative was a matter of substantial importance in the context of the case as a whole. There are decisions of this court that have suggested a gloss to the word "substantial", but it is an ordinary word and needs no gloss. As was pointed out in Phillips (Paul Andrew) at paragraph 40, attempts to add the gloss of "more than merely trivial" were potentially misleading. The word "substantial" should not be paraphrased or the subject of exegesis; it should be given it ordinary unelaborated meaning.
27. Furthermore where a statute has abolished the common law applicable to a subject and provided a clear statutory code, it was neither necessary nor desirable to refer to the old law, particularly some 10 years after the coming into force of the statutory code in the CJA 2003. When the law is changed by the introduction of a new statutory regime, the clear and logical application of the new law is not assisted by encrustation with authority decided under the common law. As Professor John Spencer has pointed out in Evidence of Bad Character, the proper approach to a codification is that set out in Vagliano v Bank of England [1891] AC 107 by Lord Herschell at page 144:

I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence.

28. This court has emphasised the significant change effected by the 2003 Act. For example, in Chopra [2006] EWCA Crim 2133, [2007] 1 Cr App R 225 at paragraph 12 it was pointed out that there had been a sea-change in the law; it was not necessary to ask what the position would have been under the old law. In Bullen [2008] 2 Cr App R 364, the court emphasised at paragraph 29 that the old law was not to be brought back by a restrictive interpretation. In Zafan Akhtar Saleem [2007] EWCA Crim 1923, the court noted one year after the coming into force of the new provisions the different approaches that were to be applied and emphasised the need to concentrate on the statutory language (see paragraphs 22 and 23).
29. It seems to us that ten years after the coming into force of the CJA 2003 and with all the new authority on the new statutory code provided for in the bad character provisions of that Act as to the admissibility of the bad character evidence, there should be no need to refer to the old law on admissibility of such evidence Those editing the textbooks might well consider that the time has come for a substantial revision to remove the old law where it has been replaced by the code set out in the CJA 2003.
30. Thus the proper course that the judge should have followed on the question of admissibility was solely to consider the two questions identified in Phillips. If the judge had followed that course in relation to the question as to the probative value of the convictions in relation to propensity, we are of the clear view that she would have concluded that the previous convictions for arson and under s.20 were not of substantial probative value to that issue. The conviction for arson was a conviction when the appellant was 15 and, although accelerant was used, it was a completely different type of offence to the offence in the present case, where accelerant was used to start a fire to attempt to destroy evidence. The offences under s.20 were of some age and in a completely different context. None was of substantial probative value and therefore should not have been admitted.
31. Although this court always recognises that there is a wide area of judgment in relation to the issues under the bad character provisions as this court explained at paragraph 3 of R v Renda [2005] EWCA Crim 2826, [2006] 2 All ER 553, this is not a case where we can apply that principle, as the judge did not follow the correct approach. For the reasons we have given, the three convictions did not have substantial probative value in relation to propensity. We would add that, as this court has often pointed out, it is usually the better course to postpone such applications until after some evidence had been heard. Such a course enables the parties and the court to form a clear judgment as to the significance and value of the bad character evidence.
32. Although we have reached this clear view, the error will require us to quash the conviction only if the conviction was unsafe. We consider that question at paragraph 45 below after we have considered the second ruling that is challenged.

(2) The ruling excluding the psychiatric evidence

(a) The psychiatric evidence

33. Prior to the trial the appellant sought documentation relating to Mitchenson's mental state. The judge was provided with various documents which she examined and directed be passed to the appellant. On the basis of these documents, those advising the appellant sought the opinion of Dr Tint, a consultant forensic psychiatrist, practising at the Blackfriars Medical Practice in Manchester and Leighton Hospital in Crewe. He produced two reports, one dated 21 November 2014 and the second dated 24 November 2014.
34. The reports were based only on a review of the documents, including a psychiatric report dated 23 July 2012 by Dr Tim Garvey, a consultant psychiatrist. Dr Tint concluded on the basis of the documents that Mitchenson suffered from paranoid schizophrenia and alcohol dependency syndrome, as well as problematic and dependent use of multiple psychoactive substances.

i) In his first report, Dr Tint expressed the view that, although it was not possible to draw specific conclusions on Mitchenson, the general conclusion that individuals with alcohol dependence and substance misuse might have a higher propensity to the risk of being untruthful than the general population, due to memory and brain cognitive function impairment or due to deliberate lying to acquire gains. He also expressed the view that if Mitchenson had continued to hear auditory hallucinations and continued to be unwell in mental state at any point and continued to drink excessive amounts of alcohol and use drugs, it was more likely that he would blame another person, particularly one that he had been drinking with on the day of the alleged offences.

ii) In his second report dated 24 November 2014 he expressed the view that there was a correlation between having a schizophrenic syndrome and increased rates of anti-social behaviour; that there was a substantial body of evidence that the major driver of crime and violence in people with and without mental disorder was substance misuse; that individuals with schizophrenia who misused drugs and alcohol were more predisposed to offending behaviour. He then concluded:

"Therefore it can be concluded from the available evidence that Francis Mitchenson is predisposed by his condition of mental disorder of paranoid schizophrenia, alcohol dependence and cocaine misuse to act in a violent manner either by each individual factor in their own right or due to comorbidity of schizophrenia plus substance misuse.

If and when Mr Mitchenson is ill with signs and symptoms of psychosis due to relapse of schizophrenia, intoxicated by alcohol, heroin or cocaine, he also has predisposition to act in an irrational manner."

35. Dr P R Snowden was instructed on behalf of Mitchenson to report on his mental state. Dr Snowden had been Clinical Director at Ashworth, subsequently Director of Secure Services at the Priory Hospital Group and at the time of writing his report was in private medico-legal practice. Dr Snowden examined him in the court cells at Manchester Crown Court on 21 November and produced his report on 23 November 2014. It is apparent that Dr Tint had not seen this report when he wrote his second report dated 24 November 2014.
36. In his report Dr Snowden drew attention to the report of Dr Garvey dated 23 July 2012 which Dr Tint had seen. Dr Garvey who had examined Mitchenson on 23 July 2012 had stated in his report that, apart from hearing voices, there was no evidence of any other symptom to suggest a serious mental illness such as schizophrenia; the most appropriate diagnosis was an emotionally unstable personality disorder complicated by abuse of alcohol and drugs. Dr Snowden's own opinion was that Mitchenson was not suffering from any of the symptoms characteristic of schizophrenia; he had an alcohol dependency syndrome. Dr Snowden pointed out that, although Mitchenson had a significant history of convictions from 1997 for theft, public order and possession of a knife, there was no criminal history of serious violence.

(b) The application to the judge

37. On 28 November 2014 an application was made to adduce the evidence set out in the reports of Dr Tint. It was accepted that Dr Tint had not seen Mitchenson, but that was explained on the basis that requests had been made to Mitchenson's lawyers to see him but had been refused.
38. The application was not made under the bad character provisions of the CJA 2003, but on ordinary principles of common law that the evidence was relevant to credibility of Mr Mitchenson and his propensity to act as he did. It was argued on behalf of Mitchenson that the evidence could not be admitted unless it was of substantial probative value on an important matter at issue between the defendants, namely the test under s.101(1)(e) of the CJA 2003. It was also argued on Mitchenson's behalf that the evidence of Dr Tint was of little value as he had not examined Mr Mitchenson and that the jury would be sidetracked.
39. The prosecution played little part in the issue, submitting that the test was one of fairness and therefore a lower threshold than one on a bad character application under the CJA 2003.

(c) The judge's ruling

40. In a careful ruling, the judge concluded that the submission on behalf of Mitchenson that this was an application under the bad character provisions of the CJA 2003 was wrong. It was an application to adduce evidence that came within the broad head of general expert evidence considered in R v Stephen H [2014] EWCA Crim 1555. The real question was its relevance and fairness. She gave a number of reasons for declining to admit it. First the evidence by Dr Tint of an association between schizophrenia, anti-social behaviour and violence was limited. Second, there had been no examination of Mitchenson by Dr Tint. Thirdly Dr Snowden contradicted Dr Tint's evidence. Fourthly if the evidence was to be admitted there would be a contest between two psychiatrists. Fifthly the issue of credibility was a matter for the jury; the admission of Dr Tint's evidence would usurp that. Sixth, the evidence did not establish any propensity on the part of Mitchenson to act in a violent and extreme manner at the level that was alleged in the case. He had no convictions for violent offences and there was no evidence that Mitchenson was experiencing a psychotic episode or other symptoms of schizophrenia at the relevant time. Seventh, the introduction of the evidence would distract the jury rather than help them. Eighth the psychiatric evidence was not relevant to the issues the jury had to determine. A fair trial could proceed without it.

(d) The submission on the appeal

41. It was submitted on behalf of the appellant that the judge had been wrong in her analysis. The question was whether the evidence was admissible. It did not matter that it might be disputed, particularly in the light of the refusal of Mitchenson's lawyers to allow him to be examined by Dr Tint. It was for the jury to determine any dispute between the psychiatrists. The judge had accordingly confused admissibility and weight. The evidence was relevant to propensity and should have been admitted.

(e) Our conclusion

42. In our view the judge was right to conclude in relation to relevance on credibility, there was insufficient in the evidence of Dr Tint to provide a basis for saying that the mental state of the appellant had any particular features that would make expert evidence necessary: see R v Stephen H [2014] EWCA Crim 1555 at paragraphs 25-29.
43. She was also right to determine that there was no evidence to establish propensity to murder or to cause really serious bodily injury. Dr Tint had opined only in very general terms. It was clear from Dr Garvey's report that the appellant did not have schizophrenia; he was the only fully qualified person who had undertaken a detailed diagnosis in the period prior to the commission of the offence. Dr Tint had not dealt with that report. Although Mitchenson's previous convictions were lengthy, there was no history of serious violence. The conviction for possession of a bladed article was in the context of a public order offence. There was nothing to suggest that Mitchenson was undergoing a psychotic episode on 1 March 2014.
44. In our view, the evidence of Dr Tint was inadmissible on common law principles, as the judge rightly ruled.

Safety

45. The judge was, for the reasons we have set out, in error in allowing the limited evidence of the appellant's bad character to go before the jury. Her direction to the jury, however, stressed its limited value to propensity. She emphasised the age of the convictions, the very different circumstances of the conviction for arson and the convictions for the offences under s.20. She stressed the limited assistance that the jury would obtain from the convictions for dishonesty which had been subsequently admitted. Applying those directions, the jury would have attached little or no weight to the previous convictions.
46. Furthermore the evidence against the appellant was very strong, as we have set out at paragraph 9. He had the clearest opportunity, his fingerprint was found on the white spirit bottle, his blood was on the duvet and he did not have the shoes he was wearing on 1 March 2014, some two days later. The appellant's answer to these points did not, on analysis, provide any credible explanation.
47. We therefore do not consider the convictions to be unsafe. It follows that the appeal against conviction fails.