England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
His Honour Judge Dean QC
T20167077

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/01/2020

(There are no reporting restrictions)

Vice-President Court of Appeal (Criminal Division):

1. On 4 November 2016 at the Crown Court at Leicester before Judge Dean Q.C. and a jury the appellant was convicted of murder.
2. On 7 November 2016 she was sentenced to imprisonment for life. 17 years was specified as the minimum term under section 269 (2) Criminal Justice Act 2003.
3. Before this court, the appellant appeals against her conviction with limited leave of the full Court (see [19] and [20] below).
4. The appellant and James Knight (the deceased) had been in a relationship since around October 2015, which had been volatile on both sides. It was the prosecution case that she was particularly aggressive under the influence of alcohol. Sometime in early March 2016, less than two weeks before the murder, the appellant suffered a miscarriage.
5. On 26 March 2016, the appellant and Knight had been out separately, drinking with friends. They were in touch throughout the afternoon by mobile telephone and they met at a public house in Leicester city centre at about midnight. Thereafter, Knight was asked to leave the pub because of his behaviour. The couple took a taxi home but they began arguing. Their behaviour was such that the driver asked them to leave the vehicle.
6. CCTV footage showed Knight push the appellant causing her to fall, and various witnesses on their route home heard them arguing loudly. Shortly afterwards, a neighbour became aware of the deceased banging on the door of the appellant's home, asking to be let in. The appellant shouted "I'm not letting you in after last time". Black marks found in due course on the door of the appellant's home tended to confirm this part of the history. At some point shortly afterwards, Knight called a friend and told him that the appellant was "kicking off".
7. Other neighbours were woken by the couple arguing in the early hours of the morning, and one heard Knight say "my heart is bleeding" and noticed blood on his upper clothing. By this time, on the Crown's case, Knight had been stabbed by the appellant. The Crown suggested Magson had lost her temper as Knight tried to get into the house. She armed herself with a kitchen knife and after she opened the door, she stabbed him through the chest. The forensic evidence indicated this occurred on the doorstep. Knight fell to the ground. The appellant immediately hid the weapon in a bin belonging to a neighbouring house to avoid it being found. Knight got up, staggered about, made groaning noises and fell onto his back in the street. Magson took his heavily stained T shirt and put it in her house. One of Knight's brothers and a neighbour helped the dying man, albeit they did not realise he had been fatally injured, and he was carried into the appellant's address. During this sequence of events, Magson made a number of statements, suggesting "(Knight had) been on the beer, been on cocaine, and that he had been beaten up by the bouncers in town"; "he's coked up"; "he's putting it on"; "he came home like this"; and "he's been taking drugs, he's asleep, he's snoring, he's fucking snoring. He's been taking coke, he's on drugs; he's dead from drinking; and he's fine, he's just drunk". Although some of this was shouted, there was also evidence of her being calm, not appearing distressed and tending to suggest there was no particular urgency in securing help for Knight. In a similar vein, there was evidence that she spoke to him in a perfectly calm and normal way saying at one stage, "come on, James, let's go home" and "James, stop messing about". Whilst he was lying on the ground moaning, she pulled at his arm trying to persuade him to get up.
8. After Knight was helped into the house, the appellant went upstairs and changed, only calling the ambulance 15 minutes later. During the call to the emergency services, she said that Knight had arrived at her home and then just collapsed on her floor. She maintained he had been fine shortly before. Her account to the operator was that he was breathing and that she thought he had taken drugs. When she was told there would be a delay in getting an ambulance to the house, she replied "no, that's fine, don't worry about it". The appellant then telephoned Jack Knight, one of the deceased's brothers, and said that James had been beaten up by bouncers in town, that he was in bed in a drugged state and that she had telephoned an ambulance.
9. It was not until approximately 45 minutes after he had been carried into the house that the appellant ran into the street screaming and shouting "he's not breathing, help", 'he's dead, he's dead, he's been fighting with bouncers" and another call was made to the emergency services. During exchanges at this stage with others at the scene, the appellant denied knowing that Knight had been stabbed or that he had been injured. Passers-by assisted with cardiopulmonary resuscitation until the ambulance arrived. The prosecution suggested the appellant had lied about what she had done and prevented the deceased from getting timely help. Indeed, she deceived others into believing that he was not seriously injured and did not require help.
10. James Knight died of a single stab wound to his left upper chest, of 11.5cm in depth, which entered and exited his left lung. It penetrated his pericardial sack and left ventricle, along with a low-pressure pulmonary artery. Given the knife had a very sharp tip, only mild to moderate force would have been necessary. Consistent with the facts set out above, the injury would not have been instantaneously fatal, but the deceased would have become increasingly out of breath and it was the pathologist's evidence that he would have died within minutes. However, he could be heard groaning in the background during the emergency call, demonstrating he had clearly survived for some time. He had no defensive injuries and the nature of the fatal injury was such that there might not have been a great deal of blood visible externally. Toxicology established that the deceased had cocaine, cannabis and anabolic steroids in his system at the time of his death. His blood alcohol level was around twice the drink-drive limit. Examination of the appellant revealed bruises to the front of her neck and one bruise on the front left of the upper thigh. It was the Crown's case that the appellant's injuries may have been caused when she fell down on the way home.
11. Whilst the paramedics were attending to the deceased, Inspector Kirk spoke to the appellant. His statement was read to the jury. He said that he spoke to the appellant and asked her to tell him what had happened. She indicated that she and the deceased had been arguing and that when she returned home she saw him outside. He had blood on his face and she believed he had been fighting in town. She spoke with one of his brothers, Kevin, and they both dragged him into her front room. She went upstairs and changed, and when the deceased failed to join her upstairs, she went back down to the living room. He was unresponsive and made a noise sounding like "urgh". She then went outside and raised the neighbours.
12. Within a short period of time this account changed. Lee Smith, the appellant's stepfather, arrived while the police were still at Kevin Knight's house, at about 4.30 am. He took the appellant back to his home, and en route he asked her what had happened. She indicated she had been in a club and that the deceased had been following her all night. They rowed and the deceased became involved in a confrontation with the bouncers, who pushed him out of the club. When they got back to the appellant's home, the appellant and deceased argued and fought with each other. He grabbed her by the arms and throat. She panicked, grabbed a knife and stabbed him, but she "didn't mean to do it".
13. The steak knife that had caused the stab wound was recovered. The appellant was arrested and interviewed. She did not answer any of the questions put to her but instead provided a prepared statement, written at her dictation by her solicitor, dated 28 March 2016, which varied markedly from the account she provided to Inspector Kirk. It contained the following:

When we got home James continued to be abusive which was getting worse. He was screaming at me, and I was shouting at him to get out of my house. He left the house and I went to lock the door however before I could he kicked the door and then kicked me to my leg. He came back in and refused to leave. He began to push me around in the front room. I made my way to the back of the house and he followed me. Once in the kitchen he grabbed me around my throat and pushed me back against the side where the sink is. He is very strong and held on to my throat. I couldn't move or get away from him. I thought the assault on me would get worse. I was right next to the sink and reached out to grab something. Due to the way he was holding my throat, I could not see what was in the sink. I picked up the first thing which came to hand, which was a steak knife with a plastic handle. The knife was in my hand and I hit out once. It happened so quickly I cannot be sure exactly how it happened. I didn't mean to harm him, I just wanted him to get off me. James then let go of me but carried on shouting at me. He was wearing a white top but I did not notice any blood. He then said he was going to his brothers and was going to take my money and my phone which was on the floor in the living room. He picked them up but threw them on the floor before leaving. I then went outside and saw him go to the floor outside his brother Kevin's. He didn't collapse, he seem to put himself to floor and lye (sic) down. I still had the knife in my hand and I walked over to him. I put the knife in Kevin's bin. I didn't notice any injury or blood and thought he was drunk. He appeared similar to how he was in the past when he has been drunk. I knocked on Kevin's door and he came out. Me and Kevin brought James back into my house. I still didn't see any blood and I don't think Kevin did either as when he brought James back to mine he left him in the front room and went home. James was left on his front. I told James that I was going to bed & he should come upstairs. As he was no longer being abusive I thought he would come up & sleep it off like he usually does. I went upstairs & changed. I had been wearing a nude coloured shirt and grey top and changed into my night clothes. I also removed my make up etc. James hadn't come up so I went back down. James was still in the same position. I then called 999, but I still thought he was drunk & playing up. Because when I hit out of him he was acting normally I didn't realise the level of injury he had. I had used James' phone to call 999 as my phone had been broken and I had no battery. The operator told me to turn James over which I did after the call ended. Only after I turned him over onto his back I could see he had gone pale and that something was seriously wrong. At this point I panicked and can't exactly say what happened next although I recall going outside …"

14. In nearly every material respect this account matches the sequence of events set out in the Defence Statement dated 30 August 2018.
15. The defence served an expert report from a Consultant Forensic Psychiatrist, Dr Davies, dated 9 September 2016. The report concluded that the appellant had an emotionally unstable personality disorder ("EUPD") or a borderline personality disorder. Whilst Dr Davies was unable to advance a formal diagnosis, it was suggested that in his view the appellant was "clearly on the autistic spectrum". The Crown's expert, Dr Garrett, at the time a Speciality Registrar in Forensic Psychiatry, concluded that whilst the appellant had exhibited traits of emotionally unstable personality disorder, they were not of the severity necessary to warrant a formal diagnosis. He did not agree that the appellant was on the autistic spectrum. In the event, no psychiatric evidence was called before the jury.
16. The Crown served evidence of the appellant's previous violence towards the deceased and a bad character application. At the trial a compromise between the parties was reached, with the approval of the trial judge, to avoid satellite litigation and to keep the allegations of historical violence and bad character of both the deceased and the appellant from the jury.
17. The appellant did not give evidence but chose to rely on her prepared statement (see [13] above). There was no issue that the appellant had stabbed the deceased. The judge ruled against the applicant that the defence of loss of control should be left to the jury. In those circumstances, the first core issue for the jury was whether the appellant was acting in self-defence. If they were sure she was not acting in self-defence, the jury needed to consider, next, whether she intended to kill or to cause really serious harm (murder), or, alternatively, intended to cause harm falling short of grievous bodily harm (manslaughter). An important factual issue for the jury was whether the deceased was stabbed in the kitchen or on the doorstep.
18. As matters stood at trial, there was a strong case against the appellant. She admitted inflicting the fatal stab wound; she gave inconsistent accounts, at one stage seemingly blaming some "bouncers" for the fatal injury; she left Knight following the stab wound lying in the living room for a significant period of time whilst she got ready to go to bed; and she gave an account of the stabbing having taken place in the kitchen which was highly likely to be disbelieved by the jury. She did not give evidence and was, perhaps unsurprisingly, convicted of murder.
19. Following the trial, the appellant appealed her conviction on the basis that the judge erred in not leaving the partial defence of loss of control under sections 54 and 55 of the Coroners and Justice Act 2009. The single judge refused leave on 4 April 2017. The application was renewed to the full court, two new grounds having been added on the basis of fresh evidence. In the additional grounds the appellant contended, first, that her conviction was unsafe because of her Pervasive Developmental Disorder ("PDD"), which caused a vulnerability that had the consequence that she needed to be supported during these proceedings by an intermediary. A particular feature of this disorder is that she suffers from an impairment of verbal skills. Second, she should have been convicted of manslaughter on the basis of diminished responsibility under section 52 (1) Homicide Act 1957.
20. On 22 November 2018 this court ([2018] EWCA Crim 2674) granted leave and left the issue of what, if any, evidence should be introduced to the Full Court hearing the appeal. For the reasons set out below, we gave leave to introduce the evidence of Drs Davies, Garrett and Sinclair.
21. Prior to the hearing on 22 November 2018, the appellant, with new legal representation, secured the assistance of Dr Maxine Sinclair, a chartered consultant clinical psychologist, who provided her first report on 24 January 2018, which was updated on 28 January 2019. She diagnosed EUPD, as had Dr Davies. Moreover, she opined that the appellant presented as someone who functions as a significantly younger person than her age indicates; her thinking is immature; she is egocentric and she struggles with imagination and creativity. Her verbal reasoning is said to be in the very low ability range (the lowest 5^th percentile of the population: see additionally the assessment report of 9 March 2019) but her non-verbal reasoning is significantly more advanced, making her situation notably unusual. She has significant mood swings. The appellant and her mother were said to provide:

"[…] cogent descriptions of pervasive and functionally impairing emotional dysregulation and instability, possible dissociative episodes, poor impulse control, disordered attachments with very strong feelings of abandonment when a close relationship ends […]"

22. Dr Sinclair observed her IQ is also in the low average ability range. It appears that the appellant had a "disordered" use of language until she was aged 7 or 8. Dr Sinclair suggested the appellant has a clinically unusual profile consistent with PDD, which comes within a residual diagnostic category.
23. On 21 February 2019, Dr Sinclair provided a report that addressed her ability to participate in court proceedings and whether she is suggestible. In summary, Dr Sinclair was of the view that the appellant was able to participate effectively, with reasonable and adequate modifications to the trial process and procedures (e.g. the use of simple vocabulary and unambiguous, concrete language, and "more scaffolding" being put in place than is needed for most witnesses when giving evidence). The appellant was assessed as being at high risk of suggestibility. However, for reasons set out below, it is unnecessary for us to analyse the reasoning or the conclusions set out in this report from Dr Sinclair.
24. As rehearsed above, before the trial Dr Davies diagnosed EUPD or a borderline personality disorder. Whilst Dr Davies had been unable to advance a formal diagnosis, again as already indicated, in his first assessment he suggested that the appellant was "clearly on the autistic spectrum". He considered the appellant was fit to stand trial, but prior to the commencement of the proceedings he recommended that allowance should be made for her tendency to view issues in "black and white", and that she can become emotionally aroused. He suggested short and clear questions and the avoidance of abstract and hypothetical thinking. He concluded in his report of 9 September 2016:

"181. […] Given the account of events described by Emma Magson, whilst psychiatric and factors (sic) may provide some explanation as to how the situation arose and Emma Magson's reactions, the appropriate issues to consider in terms of defences to the charge of murder would be Intent or Lack of control rather than Diminished Responsibility".

25. This was to be the subject of substantive change. In a post-conviction report dated 25 February 2018, Dr Davies indicated that Dr Sinclair had assessed the appellant's neuro-developmental difficulties in much greater detail than was possible during his 2016 assessment. She had also elicited more severe affective symptoms than had been earlier apparent. He accepted Dr Sinclair's diagnosis of PDD. He now reached the view that the appellant's EUPD "almost by definition, would affect one's ability to exercise self-control in a conflict situation". He concluded it was a pervasive developmental disorder. In evidence before this court he said that in an emotionally charged situation this would be a major factor. Additionally, in the 25 February 2018 report he expressed the view:

"123. (The appellant's) EUPD would affect her ability to form a rational judgement and to understand her conduct due to difficulties regulating emotions and relationships. Her PDD would also affect her ability to understand her conduct due to her low verbal IQ, difficulties in verbal communications and concrete thinking. Her ability to quickly form a rational judgement would be affected by concreteness of thinking and low verbal IQ. Her difficulties with emotional regulation would also affect her abilities to form a balanced judgement rather than swinging from extreme positions or getting "stuck" in a position due to her concrete thinking, particularly in a highly stressful and emotionally charged situation."

26. In evidence, Dr Davies said he found Dr Sinclair's reports very helpful and, as just indicated, he accepted her conclusions. He is now of the view that her rational judgment was coloured by emotion to a far greater extent than he had realised prior to trial. She was not able to take a calm view about an unfolding situation. The combination of EUPD and PDD, both of which are recognised medical conditions, would have had a cumulative effect: they would have affected her ability, first, to understand her conduct; second, to form a rational decision; and, third, to exercise self-control at the time of her acts and omissions. In the result, he concluded this would have led to a substantial diminution in her ability to exercise self-control at the relevant time. He was of this opinion regardless of which of the two scenarios was accurate (the fatal blow either being struck in the kitchen or at the front door). In evidence, he was significantly more definite in his conclusions concerning diminished responsibility than he had been in his report of 25 February 2018, which was in the following terms: "143. […] Diminished responsibility, also a possible defence, was not advanced. EUPD and PDD were doubtless significant factors affecting her ability to exercise self-control at the time of the offence. They could also offer some explanation for her later conduct and omissions".

26. As already rehearsed, Dr Garrett, now a Consultant Forensic Psychiatrist, was instructed by the Crown. In his pre-trial report dated 29 September 2016, he expressed the view that although the appellant demonstrated traits of an emotionally unstable personality disorder, he did not regard her difficulties – certainly with sufficient certainty – as being of a severity that would warrant a diagnosis. Furthermore, he did not observe difficulties with communication and social relationships, or patterns of behaviour, that would suggest a diagnosis of autism.
27. His opinion was also to undergo significant development. He was provided with Dr Davies's report (dated 25 February 2018) and that of Dr Sinclair (dated 24 January 2018). He re-interviewed the appellant on 17 May 2018 and in his report of 12 June 2018, supplemented by his evidence before this court, he revised his view to the extent of concluding that at the time of the present incident, the appellant had been suffering from EUPD. He was of the opinion that this had arisen in late adolescence and would have been present on the night of the stabbing. He also agreed with the diagnosis of PDD. As a consequence, he concluded that at the time of the killing the appellant was suffering from an abnormality of mental functioning which arose from a recognised medical condition, namely EUPD. This was a pervasive disorder that would have arisen in adolescence. This would have substantially impaired her ability to form a rational judgment and to exercise self-control at the time of the killing. In his opinion, this abnormal mental functioning was a significant contributory factor at the time of the killing.
28. In deciding whether to receive the evidence from the three experts, Drs Sinclair, Davies and Garrett, pursuant to section 23 of the Criminal Appeal Act 1968, we must consider whether it is necessary or expedient in the interests of justice to do so. In making that decision, we need to have regard particularly to whether: (a) the evidence appears to the court to be capable of belief; (b) whether it appears to the court the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal, and (d) whether there is a reasonable explanation for the failure to adduce the evidence in these proceedings.
29. There is no doubt as to a), b) and c): the evidence is capable of belief; it may found a ground of appeal because it reveals a defence that was not pursued at trial; and it would have been admissible. Of real concern is d). In R v Georgina Sarah Anne Louise Challen [2019] EWCA Crim 916, the Vice-President observed at page 17:

"As this court has observed frequently, any available defences should be advanced at trial, and if evidence, including medical evidence, is available to support a defence it should be deployed at trial. As a general rule, it is not open to a defendant to run one defence at trial and when unsuccessful, to try to run an alternative defence on appeal, relying on evidence that could have been available at trial. This court has set its face against what has been called expert shopping. Nor is it open to an appellant to develop and sometimes embellish their account to provide material upon which a fresh expert can base a new report and diagnosis."

30. With some relatively unimportant exceptions, all of the material on which the present diagnoses are based was available to be considered and analysed prior to trial. The critical development has been the post-conviction instruction of Dr Sinclair, who revealed the appellant's neuro-developmental difficulties in considerable detail, and who elicited more severe affective symptoms than were originally apparent. It is self-evident that this evidence, if a suitably qualified psychologist had been instructed, would have been substantively available to be introduced at trial. Although Dr Davies raised the issue of a defence of diminished responsibility, albeit in a negative way, this was not pursued by counsel or the psychiatrists, notwithstanding his conclusions in his report of 9 September 2016 that the appellant had EUPD or a borderline personality disorder and was on the autistic spectrum (see his report 9 September 2016 at [40]). He asked her to complete the AQ-10 screening as recommended in the NICE Guidelines. She scored 6 out of the 10 items, which suggested the need for specialist diagnostic assessment for autism. Dr Davies was only trained to undertake part of the test, and otherwise this needed to be undertaken by someone with Dr Sinclair's qualifications (see the same report at [41]). As set out above, this did not prompt a psychological assessment.
31. It is evident, therefore, that we are concerned that Dr Sinclair was only asked to explore whether the appellant suffered from autistic spectrum disorder, amongst other issues, following the appellant's conviction. We recognise that the appellant has a clinically unusual profile, consistent with PDD. The appellant exhibited some of the symptoms associated with autistic disorder but she did not meet the full diagnostic criteria. Her unusual profile was unexpected by the psychiatrists, and they were similarly surprised by her low verbal IQ. Dr Garrett expressed the view that, on the material then available to him, a more detailed examination was not called for in 2016, and that the emotionally unstable part of the appellant's personality is now better known. However, as described above, because Dr Sinclair was instructed by the appellant's new solicitor to consider her possible autistic spectrum disorder (as was apparent to Dr Davies before trial), the diagnosis of PDD was reached and the full extent of the appellant's neuro-developmental difficulties were explored.
32. It is difficult for this court to express a concluded view on the reasons advanced for not retaining a psychologist in 2016, but we are certain that in future counsel and the experts who are instructed in situations similar to the present case must focus on the question of whether a psychological examination is called for, in addition to any psychiatric evaluation. We are not suggesting this step should be taken on a speculative or serendipitous basis, and it is critical there is a sufficient justification before this avenue is explored. But once the real possibility is raised on a charge of homicide – as in the present case – that a potentially vulnerable defendant may be suffering from autistic spectrum disorder which calls for specialist diagnostic assessment, at least the possibility of retaining a psychologist must be discussed. This is the responsibility of both the prosecution and the defence, along with the psychiatrists they separately instruct. In the right case, the judge with conduct of the case may wish to explore this issue with counsel during the pre-trial hearings. It is unconscionable for a case to be advanced at trial, with or without expert evidence being called, with "fresh" expert evidence – which could and should have been introduced before the jury – being advanced in an application to this court in an attempt to overturn a murder conviction. Introducing expert evidence at different stages of the process, without proper justification, undermines our system of criminal justice.
33. After careful consideration, and notwithstanding the difficulties to which we have just alluded, we are sufficiently persuaded, however, that there is a reasonable explanation for the failure to adduce the evidence reviewed above at trial, not least because some significant aspects of Dr Sinclair's conclusions were unexpected by the two psychiatrists who provided their original reports in advance of the proceedings in the Crown Court. Furthermore, we are confronted with the situation in which prosecution and the defence psychiatric experts have unequivocally concluded that there is, in their view, a strong basis for the appellant to contend that the correct verdict was manslaughter and not murder, on the basis of diminished responsibility. In the event, on the evidence now available, we are left in doubt as to whether the applicant was rightly convicted of murder (see Graham (H.K.); Kansal; Ali (Sajid); Marsh [1997] 1 Cr App R 302 at page 307) and it follows that the appeal, on this basis, must be allowed, given this option was not left for the jury's consideration. Whether a jury presented with this evidence, against the factual background as summarised at [18], would have found that the appellant had discharged the burden of proving the defence of diminished responsibility is not for us to say.  On any view, this is not a case of the kind discussed by the court in Brennan [2014] EWCA Crim 2387; [2015] 1 Cr App R 14.  However, for the reasons given, we cannot be satisfied that the jury's verdict was safe.
34. As already indicated in outline, there were other issues raised which it is unnecessary to investigate as part of this appeal, and in particular whether the appellant's developmental condition had an impact on her effective participation in the proceedings and the presentation of the defence case, for which, as it is alleged, inadequate allowance was made during the trial. On any retrial, these contentions can be considered at that stage. It will be for the trial judge to assess the extent to which – if at all – the appellant requires assistance in order to ensure her effective participation based on the evidence then available. We offer no view at all on whether this is required for all or part of the proceedings.
35. The prosecution seeks a retrial on the count of murder and the applicant does not resist this application. In our view, this is the right course and we order a retrial.

Postscript

36. On 5 March 2021 the appellant was convicted of murder at the conclusion of her retrial. She received the same sentence as that imposed on 7 November 2016. On 29 July 2022, her appeal against conviction was dismissed and her renewed application for leave to appeal against sentence was refused.