England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Morris QC
T20100253

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/07/2018

Lord Justice Treacy:

1. This is a renewed application for leave to appeal against conviction on 10 March 2011 for an offence of murder at the Central Criminal Court. An application for leave was made in 2011 but was refused by the single judge. The grounds now pursued before this court are new grounds based upon fresh evidence and formed no part of the original grounds of appeal. An extension of time of around 5 years is required for the renewal of this application.
2. Initially, this application covered a number of other matters which were considered by this court and an application in relation to them was refused. That judgment can be found at R v Gordon [2017] EWCA Crim 2213. The form in which the matter has proceeded before this court represents grounds which the court in 2017 felt might be capable of argument, albeit that leave was not granted. In short, the applicant seeks leave to adduce fresh expert evidence pursuant to s.23 of the Criminal Appeal Act 1968 from two expert witnesses, Dr Gillian Merrill and Dr David Murphy. Neither of those witnesses was involved in the original trial but both have compiled reports since conviction. As a result of that, it is contended that the applicant's conviction for murder was unsafe because the applicant has autism spectrum disorder (ASD), most likely in the form of Asperger's Syndrome. That condition was not diagnosed at the time of trial and it is contended that had it been diagnosed, the judge would have directed the jury in a materially different way.
3. In particular, it is contended that

i) The applicant's condition was (or might have been) relevant to his ability to form the required intention for murder and that the jury should have been so directed; and

ii) that his condition was (or might have been) relevant to his behaviour shortly after the incident and the jury should have been so directed.

Such directions would have been relevant to the applicant's ability to interpret and understand the behaviour of others at the time of the fatal incident, and also to his own behaviour immediately afterwards and the interpretation to be placed on that.

4. The facts of the case show that the applicant was part of a group or gang of young men who travelled from Lewisham to Sydenham with a view to confronting and fighting an opposing group or gang. As a result, Nicholas Pearton was chased by a pack of the applicant's group and stabbed in the street in broad daylight. This applicant did not wield the knife which killed Pearton; he was convicted as a secondary party. The applicant's group or gang call themselves "Shanks and Guns"; "shanks" being knives.
5. There had been a history of confrontation and dispute between members of the two groups. On the afternoon of 5 May 2010 there was an altercation outside a school in Lewisham between members of the Lewisham group and members of the Sydenham group. Within a short space of time, members of the Lewisham group gathered in their local park, Grove Park. They then travelled by bus to Home Park, Sydenham, where there was a confrontation between the two groups.
6. By this stage both groups were armed. The Sydenham group was chased out of the park. Nicholas Pearton became separated from his friends and was pursued by a number of Lewisham youths. He was caught by Dale Green (who was convicted of murder) just outside the park and was stabbed in the back in plain view of members of the public waiting at traffic lights. The deceased managed to take refuge in a shop on the other side of the road but died there soon afterwards. An attempt made by Demar Brown (convicted of manslaughter) to get inside the shop failed. Other members of the Lewisham group were at the scene chanting and shouting their gang name, apparently celebrating what had happened. The Lewisham group then left the scene, then caught a bus back to Lewisham.
7. The case against this applicant was put as follows. He was a member of the Lewisham group which had met in Grove Park, Lewisham as a result of the incident outside the school. This led to a group decision to travel to Sydenham for an armed confrontation. There was evidence that Green had said to those present before the group left Grove Park that he was going to stab one of the opposing gang. This applicant had then said, "Anyone who don't come ain't riding"; that is, anyone who did not join the group would not be regarded as part of the gang. The applicant then travelled with the group to Home Park, Sydenham, for the purpose of a confrontation. This fact has to be seen in the context of the fact that a week before the murder there was put on YouTube a clip of the Lewisham group in which the applicant can be seen holding a knife and during which threats were made towards the Sydenham group.
8. The group travelled to Home Park and gathered at the home of Edward Conteh (convicted of manslaughter) before moving into the park itself. By that stage, members of the group were armed with knives, and knives were on display in their hands. This cannot have come as a surprise to the applicant who had earlier encouraged others to join in the venture under threat of exclusion from the gang. Once the chase of Nicholas Pearton from the park took place this applicant was part of the chasing group, albeit that one witness saw him leave the park through a nearby exit rather than that taken by the deceased and Green and others.
9. An eye witness identified the applicant as the holder of a knife. It is accepted that he was mistaken in this respect but this evidence, taken together with accusations by two co-accused that this applicant had a knife, was treated as evidence that this applicant was a positive participant in the action rather than an observing bystander, as he claimed. After the fatal stabbing this applicant left the scene with Green and others on a bus.
10. The applicant did not comment in interview but provided two prepared statements. He admitted seeing knives on display in the park and seeing the deceased in the shop to which he had retreated after being stabbed. He also acknowledged that, once on the bus, Green had told him that he had stabbed someone. There was CCTV footage showing that on the journey the applicant reached over and shook Green's hand. In addition, there was evidence from a witness that the applicant said to those around them that Green was "the new young boss" and the "certified boss" and that he had repeated the words "knife him, knife him" to himself whilst laughing.
11. Subsequently, clothing belonging to those involved in the attack, as well as that belonging to the applicant, was found in the applicant's brother's car, no doubt for the purpose of being disposed of. Finally, there was bad character evidence showing the applicant's convictions for joint public disorder and for possession of knives.
12. The defence case admitted presence at the scene but denied being party to a joint enterprise to murder. The applicant admitted anticipating that there might be "a punch up" but denied an intention to do serious harm, carrying a knife, chasing the deceased, or knowingly being part of a group who chased the deceased from the park into the road where he was stabbed. He denied presence at the point when the deceased was stabbed and denied celebrating the stabbing afterwards. The applicant did not give evidence but his case was conducted consistently with the defence statement which set out the matters referred to above.
13. The applicant was well known to his then solicitor, Mr Ross, who had been representing him since 2006 and had opened no less than 30 files in connection with him. Mr Ross had attended the police interviews in the present matter and considered that the applicant's demeanour and behaviour was "absolutely fine". During the applicant's remand in custody awaiting trial, he became concerned about the applicant's apparent mental deterioration. Accordingly, reports were obtained. Dr Andrew Johns, a consultant forensic psychiatrist, reported on 29 December 2010 and 5 January 2011. He noted earlier complaints of hearing voices but did not consider that they had the quality of auditory hallucinations associated with schizophrenia or major psychosis. Later the applicant was to say that he had made up these complaints. Dr Johns' conclusion was that whilst there had been occasional behaviour or concerns relating to the applicant in custody he showed no major mental illness and on reviewing his background there was no history of mental illness. He described the applicant as being of low average intelligence, having a co-operative manner with entirely normal thought, although the applicant made few spontaneous comments and his concentration appeared poor. There was no suggestion of a diagnosis of autism in these reports or of any other significant mental abnormality. Dr Johns was aware that the applicant's sister suffered from autism.
14. There was also a report dated 1 February 2011 from Dr Melora Wilson, a chartered clinical psychologist. She said the applicant attended to the assessment well, despite making virtually no eye contact. His demeanour was pleasant and co-operative. He was polite and appropriate throughout. He was well-orientated to person, time and place; the form and content of speech was normal, and his concentration levels appeared adequate. He had been able to sustain attention for the duration of a three-hour meeting without a break. Dr Wilson's overall opinion was that the applicant might be developing an emerging mental disorder, possibly a depressive episode with psychotic features.
15. These reports did not provide the defence team then instructed with any basis for raising issues before the court with a view to influencing the content of the summing up, either on the matter of the applicant's intentions at the time or in explaining his conduct after the event. No criticism is made of trial counsel; nor indeed is any criticism made of the two psychologists who provided reports at the time. However, it is now said that in the light of fresh evidence the position is different.
16. We now turn to the proposed fresh evidence. In September 2012 the applicant was recommended for admission to Broadmoor and assessed over the following months by Dr David Murphy, a chartered forensic and consultant clinical neuropsychologist. His first report is dated 12 December 2012. We decided to receive this report and later reports from him as well as one from Dr Merrill, a registered forensic psychologist, de bene esse.
17. Dr Murphy's first report stated that the applicant's history and current presentation suggested that he displayed a triad of impairments characteristic of all autism spectrum conditions. The triad consists of significant difficulties with social interaction, social communication and different dimensions of imagination, and having a restricted range of preoccupations, as well as a need for sameness. Although the applicant's autistic quotient score was low, thus suggesting a low level of features and difficulties associated with having an ASD, Dr Murphy considered that the reliability and insight of the applicant's answers leading to the score had to be queried as they did not match other self-reported descriptions given by the applicant.
18. Dr Murphy spoke of clear social naivety, difficulties with verbal comprehension and expression, poor eye contact, and difficulties in cognitive flexibility and speed of information processing. He also said that the applicant appeared to be a very poor judge in interpreting the intentions of others in dynamic social situations. In Dr Murphy's opinion, the history and his presentation at interview were consistent with him having an ASD, most likely Asperger's Syndrome. This diagnosis, he said, had significant implications for understanding the applicant's previous offending and difficulties.
19. Dr Murphy reported again on 9 September 2013 and 11 December 2017. In the latter report he stated, "In my opinion, many of Mr Gordon's presenting difficulties could be framed in terms of a combination of an ASD, social immaturity and naivety, some dysfunctional personality features (likely to be linked to his social circumstances and skewed experiences such as being exposed to gang culture) and poor coping strategies when under stress (also likely to be linked to ASD)". He referred to the fact that the applicant's sister had been diagnosed as suffering from an ASD "on the more severe end of the autism spectrum".
20. In cross-examination Dr Murphy acknowledged that the applicant's condition had deteriorated significantly whilst in custody and said that if he were returned to the prison system he would deteriorate again. Whilst his place on the spectrum of an ASD was fixed, how his condition affects him and how he reacts is affected by the environmental circumstances in which he is placed at any given time. He said that the applicant's condition might well not have been recognised in 2010. It was difficult to diagnose and required observation over a period of time in different situations.
21. It was pointed out that he had spent a month in a mental health unit in June 2010, very shortly after the offending, and that this had resulted in a diagnosis of a conduct disorder. Dr Murphy maintained that it was still possible for an ASD to have been missed. In late 2012 the applicant had had difficulties drawing inferences about others' intentions and actions. Whilst those difficulties would have been present in 2010, the applicant's ability to react would have been affected by his environment; the more dynamic the situation, the more difficult it would have been for him to make rapid and accurate judgements.
22. Dr Murphy declined an invitation to place the applicant on a spectrum, stating that much depended on the situation and the stressors a person was experiencing at a particular time. He acknowledged that in 2010 nursing staff observing the applicant had been split on a diagnosis and suggested that that might be due to lesser levels of experience.
23. Dr Merrill's report was dated 14 December 2016. She noted that it was not obvious from initial presentation that the applicant had any difficulties, including with autism. She noted that despite autism being a lifelong developmental disorder, the diagnosis had only relatively recently (2012) been made by Dr Murphy. This indicated that the nature, effect and severity of the condition was not so severe that it was recognised at school, or by the applicant's mother. It also showed that he was able to manage and mask the difficulties associated with his traits until diagnosed at the age of 18.
24. When cross-examined, Dr Merrill said she had based her views about the applicant on what he had said to her about the events in May 2010. If the event had been planned it would be much easier for him to predict what would happen. She acknowledged that the applicant had told her he had previously been to the park with a view to a violent confrontation, had participated in the YouTube clip, and that there was evidence that he had encouraged a trip to the park on this occasion in the context of Green having said he was going to stab someone. If those facts were established, then processing and reacting to the situation in the park would have been easier for him when violence actually occurred. If the applicant had understood there would be violence in the park, that was a factor which could not be ignored.
25. She described the condition as having the following features:

i) difficulties and vulnerabilities with interaction with others;

ii) vulnerability to exploitation from friends in an anxiety to maintain friendships;

iii) learning by experience, so that there was a possibility that if the applicant had not experienced anyone else being stabbed he might not have foreseen what would happen;

iv) difficulty in understanding that other people have their own plans, thoughts and points of view, and thus having difficulty in anticipating what others will do;

v) lacking imagination so as to find it difficult to interpret the likely consequences of another's behaviour.

26. In the light of this evidence Mr Stanbury argued that the judge who directed the jury not only in terms of an intention required for murder, but also in terms of pre-Jogee foresight (considered in the earlier judgment referred to) would have directed the jury, if he had been aware of the fresh evidence, that the applicant's condition was capable of impacting upon the applicant's intentions and his ability to absorb process and foresee the consequences of his own actions and those of others. This was a fast-moving incident and the case had only been put against the applicant on the basis that he was a secondary party to the fatal attack upon the deceased. That necessarily required a careful examination of the applicant's state of mind at the time of the offence and this had to be considered in the context of the current diagnosis.
27. Additionally, the diagnosis could shed a different light on the applicant's own behaviour on the bus after the incident. The court has viewed CCTV material recovered from the bus. Mr Stanbury sought to analyse that and dispute that the applicant had shaken Green's hand. In summing up, the judge had invited the jury to consider whether that was what was depicted and, if so, why the applicant was doing it. We consider that the evidence is capable of demonstrating a handshake and are not prepared to find to the contrary.
28. The matter has to be viewed in the light of evidence from a witness that shortly afterwards the applicant had said that Green was the new boss and the certified boss. He described Green as smiling but not replying. The applicant was saying the words "knife him, knife him" to himself and laughing. That same witness commented that the applicant is often in a world of his own and talks to himself. It seems to us that that evidence was relevant, both in considering whether or not a handshake was depicted shortly beforehand and in considering whether the applicant was showing knowledge and approval of what had been done by Green.
29. Mr Stanbury relied on the witness's description of the applicant as demonstrating unusual behaviour related to his ASD diagnosis which might have led the jury to take a different view of the applicant's conduct on the bus. The overall thrust of Mr Stanbury's submissions was, firstly, that the new evidence should be received by the court, and secondly, that it rendered the conviction unsafe by reason of the absence of any directions to the jury tailored to address the issues of intent and the interpretation of the applicant's subsequent behaviour.
30. The Crown resisted those submissions. It pointed to the fact that the evidence now relied on significantly post-dated the events surrounding the stabbing and that the evidence showed that there had been a deterioration in the applicant's condition during the period after remand in custody. The evidence of a later deterioration in ability to absorb and react to an attack such as this did not shed meaningful light on the applicant's condition at the time. There was ample evidence from which it could be inferred that the applicant had an ability to form the necessary intent and that this would not have been significantly affected by his condition. This was a case in which the applicant had not given evidence so that no suggested direction could have applied to an assessment of the applicant's evidence. At most it could have been applied to the other evidence about the attack and its preparation and aftermath. On the basis of a later deterioration in the applicant's condition, the absence of any direction about it did not in the circumstances render the conviction unsafe.
31. As to the evidence of what happened on the bus, the Crown's submission was that the fresh evidence makes no significant difference to what the evidence showed; it was known to the applicant's previous legal team at the time of the trial that the applicant tended to behave in an unusual way, but that fact does not qualify the evidence presented, whose importance was to show that the applicant had correctly interpreted the intentions of the participants in the fatal attack and approved of Green's actions.
32. We accept, as did the Crown, that this applicant suffered from an ASD at the time of the offence. It is clear to us that that condition makes it more difficult for those who suffer from it to appreciate and react to spontaneous events. However, that difficulty is less significant if an offender has had previous relevant experiences or the event is planned. In our judgment, there was much about the events in the park which was not spontaneous or the subject of prior experience by this applicant. There had been at least one previous similar trip to the park for a violent confrontation. This applicant had been seen brandishing a knife on the YouTube clip in the circumstances described. He knew from the gathering at Grove Park that Green was proclaiming an intention to stab a member of the opposition and had personally followed that with a call to those present to provide support. When in Grove Park he was aware that others had knives and that the planned violent confrontation was to take place.
33. It is clear that his subsequent description of events, both in prepared statements put forward when interviewed and to the experts now relied on, minimised his role in events. Whilst care needs to be taken since such minimisation or falsehood does not of course mean that this applicant was not suffering from an ASD, our conclusion that he had not given an accurate account does, to an extent, undermine the basis upon which the two experts approached the matter.
34. We also think it relevant that much closer to the time, highly-qualified experts had not seen the applicant in a condition which showed that his ASD was a significant feature of his mental makeup at the time. The totality of the evidence shows that this applicant's condition seriously deteriorated after his admission into custody. This is consistent with Dr Murphy's evidence that the effect of the condition upon the applicant is substantially determined by his environmental circumstances at any given time.
35. This court is required to consider the applicant's condition as at the time of the offence. It must also consider the effect of that condition upon his actions, and in particular upon his intentions and perceptions at that time. Given that this was not a spontaneous and unexpected event, and given a lack of evidence to show that in May 2010 this applicant's condition was such as significantly to impact upon his behaviour at the time of the offence, we do not consider that the fresh evidence was of a nature and strength to undermine the safety of the conviction. Accordingly, we decline to receive the fresh evidence under s.23 of the Criminal Appeal Act 1968. The consequence of this is that this renewed application is refused and the conviction for murder remains in place.