APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lady Dorrian	[2014] HCJAC 44 XC726/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in the appeal against conviction following upon a reference from the Scottish Criminal Cases Review Commission   ASHOK KALYANJEE, Appellant;   against   HER MAJESTY'S ADVOCATE, Respondent:   _______________

 

Appellant: Allan QC, Latif, Solicitor Advocate; Paterson Bell (for McQuillan, Glasser and Waughman, Hamilton)

Respondent: Wade QC AD; the Crown Agent

 

23 May 2014

Preface

[1] This case raises an issue about the proper test to be applied, within the overall statutory context of miscarriage of justice (Criminal Procedure (Scotland) Act 1995 s 106(3)), in appeals against a conviction which has followed upon a plea of guilty. It is important to observe, in this context, that the powers of the court in a solemn appeal, which are wholly statutory in origin, allow the court either to affirm or to set aside a "verdict" and quash the conviction (ibid s 118(1)). Where a person has pleaded guilty, there is no verdict. This appeal is based upon what is said to be "fresh evidence". The statutory provisions specific to this category of appeal (ibid s 106(3) and (3A)) state that it is only available when there is a reasonable explanation for such evidence not being heard "at the original proceedings". There is, of course, no evidence heard in a case where a plea of guilty has been tendered and accepted.

 

Procedure

[2] The appellant was indicted to a Preliminary Hearing on 10 November 2008 at the High Court in Glasgow in respect of the murders, on 3 May 2008, of his two young sons, aged 6 and 2, at Crow Road, Lennoxtown. On 6 November 2008, on the joint application of the parties, the court discharged that Hearing and fixed a new one for 20 November 2008. Although the reason for the postponement is not recorded, a concern had arisen at that early stage about the appellant's mental state. That is significant in connection with what happened subsequently. At the new Hearing, the court was informed that the appellant accepted that the acts libelled had been carried out by him, but an issue in relation to his mental state remained outstanding. Sanction for the instruction of an expert psychiatrist had been obtained.

[3] At a further Preliminary Hearing on 26 November 2008, having obtained the expert's views (infra), the appellant pled guilty to both charges of murder. No issue was taken with the narrative provided by the Crown. Sentence was deferred pending the preparation of a social enquiry report. At the next diet, on 11 December 2008, the court was advised again that there were concerns regarding the appellant's mental state. A deferment was granted in order to allow further psychiatric examination. On 20 January 2009, at the High Court at Paisley, the court was addressed on sentence. The appellant was represented by the same counsel at this diet as he had been at all of the earlier hearings. The sentencing judge determined that, on conviction after trial, the punishment part of the appellant's life sentence would have been 28 years. In view of the early guilty plea, this was reduced to 21 years (ie a discount of one quarter). That discount far exceeded what came to be accepted as the norm for punishment parts (HM Advocate v Boyle 2010 SCCR 103). This is significant.

 

The incident and immediate aftermath

[4] The appellant was aged 46 at the time of the offence. His two sons lived with their mother (the appellant's ex-wife), although the appellant took them out on a regular basis. At about 10am on 3 May 2008, the appellant telephoned his ex-wife to make arrangements to collect the children, ostensibly to take them to see their paternal grandmother. There had been no prior arrangement that the appellant would take the children out that day.

[5] The appellant left his home, where he stayed with his mother, telling her that he was going to work. He proceeded to an ironmonger, where he bought a cooking wok and a large knife. The appellant collected the children from his ex-wife's home, telling her that he would be taking them to the park. Before leaving, the appellant told his son, P, to give his mobile phone to his mother, whose phone was not working, explaining that he would telephone her if his younger son, J, started crying.

[6] At around 1pm, the appellant telephoned his ex-wife using P's mobile phone. When asked if the children were "okay", the appellant replied "your babies are fine, your babies are fine". When asked why he was calling the children "your babies" and not "our babies", the appellant replied "you'll regret everything you've done to me in life" and hung up.

[7] At around that time, the appellant was seen in his car, parked in a lay-by, apparently sleeping in the driver's seat. He was still there at about 4.40pm. Shortly thereafter, the police were contacted. The police found the appellant still in the driver's seat, unconscious. There was an overwhelming smell of petrol. The appellant had large blisters on his arms, hands and face. The knife was seen in the driver's foot well, with blood on the blade. The children were in the back of the car. They each had stab wounds to the throat. They had been dead for some time.

[8] An open petrol can was found lying in the front passenger foot well. Two empty vodka bottles were also recovered. The petrol had been ignited. An explosion had followed, entering the boot of the car, pushing the door frames out of alignment and quickly extinguishing itself due to lack of oxygen.

[9] A mobile phone and a dictaphone were found a short distance from the car. The appellant had thrown the dictaphone from the car, presumably on the assumption that it would be found after his death. A transcription of the contents of the dictaphone identified two voices, those of the appellant and a child. The recording begins (in Punjabi): "This is a very big story. It's purpose is that I'm speaking in Punjabi because my children are with me, if I spoke English then they would understand and today is the last day. These children are mine and they'll go with me." It continues: "I would not let my children know as to where I'm taking them ... there is death, death is ... this death is near. I have become a gambler, a drunk, nothing has become of me." The appellant then speaks to his older son (in English), telling him how much he loves him and his brother. The recording resumes: "I would always miss you" and "so we're gonnae have a very good game today, very good fun today baby", "and we're going to live together", "nobody can separate us now ...".

[10] The appellant was taken to hospital suffering from extensive burns and significant smoke inhalation. He was conscious on arrival, but did not speak. He was sedated and remained in intensive care, apparently unable to speak, until 19 June 2008. His mood was observed to be low.

[11] A psychiatric evaluation was carried out by Dr Dallas Brodie, consultant liaison psychiatrist at the Royal Infirmary, on 30 June. In his report dated 11 July 2008, Dr Brodie advised the consultant in charge that the appellant showed no signs of any psychotic phenomena. He was fully alert and spoke in a rational, coherent manner. The appellant said that he had been assaulted by two men, who had pushed him to the ground. He provided some information on his background to the effect that he had had a happy childhood. He had had no problems at school. He had come to the United Kingdom when he was quite young and had completed his education in Manchester, when he was about 23 or 24. He had only been able to get work at a Call Centre, which is where he had been working at the time of his admission. He had two children, aged 6 and 3 (sic), whom he appeared to think were still alive. In a later statement to the police, taken on 8 July, Dr Brodie said that he had re-assessed the appellant. He could find no evidence of obvious mental disorder. There was no evidence of cognitive impairment. The appellant was fully orientated with his short term memory intact.

[12] On 15 July 2008, on being advised that he was being detained for the murders of his children, the appellant stated to the police: "who are they? They're not dead. Oh right, I thought someone gave a statement against me because I set myself on fire." During a subsequent interview, the appellant denied killing his children. When asked if he had been present when they were killed, he alleged that he had had a few drinks and lain down at a city centre bus stop. Two men had raped him and tried to set him on fire. He then asked the police: "so they, my children are dead?" The appellant said that he could not remember when he had last seen his children. He denied buying the knife or keeping a petrol can in his car. He later confirmed that his car ran on diesel and claimed that he kept the petrol can in case his ex-wife ran out of petrol. He accepted that the recording on the dictaphone was his, but continued to maintain that he could not remember anything and that he had not known that his children were dead.

 

Pre trial Psychiatric Examinations
Dr Reid

[13] On 18 July 2008, the appellant was examined by Dr Gavin Reid, consultant forensic psychiatrist at the Rowanbank Clinic, on the instructions of the procurator fiscal. The appellant told Dr Reid that his memory had returned, albeit only recently. He had been at a bar, the name of which he could not recall, at about 11pm, and had drunk 2 pints. He had then been at a bus stop, where he was assaulted by 2 men. He had been raped, robbed and set on fire. He had driven himself to hospital.

[14] The appellant's account of his childhood was this time less than happy. His father had left the family home when the appellant had been aged 5. He was bullied at school. After University in India, he had come to the United Kingdom when he was 29, living initially in Oxford and then Glasgow, where he had continued his education. He had worked in a post office and later the Call Centre. He drank 1 or 11/2 pints and some shots of whisky twice a week.

[15] As described in his report to the procurator fiscal dated 22 July 2008, Dr Reid found the appellant sane and fit to plead. The appellant was said not to be suffering from a mental disorder which would satisfy the criteria for detention. Dr Reid had reviewed the transcript of the content of the dictaphone, 2 volumes of "paperwork" found at the appellant's home (a diary (infra)) and a transcript of the appellant's interview with the police. Dr Reid noted that these contained "negative views" regarding his ex-wife and a belief that she, her family and others, were racist in their manner towards him. There were references to gambling and drinking as well as suicidal ideation. Nevertheless, Dr Reid confirmed his views to the procurator fiscal in a supplementary report dated 6 October 2008. There was no evidence to support a defence of insanity at the time of the offence. In Dr Reid's opinion the appellant "was not of diminished responsibility".

 

Dr Gray

[16] At a very early stage, the appellant's then agents (Anderson Jones, Glasgow) had instructed an opinion from Dr Douglas Gray, consultant forensic psychiatrist at the State Hospital, Carstairs. His report is dated 21 July 2008 and followed an interview with the appellant 3 days previously. The appellant said that he had had a contented childhood. However, the rest of his background details were consistent with his earlier statements. His marriage had been a "nightmare" which had been "worse than being in prison". The appellant denied having any recollection of the offence, but repeated the account of the 2 man assault. He told Dr Gray that he was a moderate drinker and gave a similar account of his drinking as he had told Dr Reid. Dr Gray did not consider that the appellant suffered from a mental illness warranting detention. He was sane and fit to plead. In relation to the offence, Dr Gray wrote:

"3 ... I had been presented with no evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused as compared to a normal person, to determine or control his acts".

 

Dr Baird

[17] A new set of agents (Doonan McCaig, Glasgow) took over the defence case (as already recorded) and instructed Dr John Baird, consultant forensic psychiatrist at the Nuffield Health Hospital. He reported on 24 November 2008 (2 days before the guilty plea). He had the appellant's diary of 345 pages (ie the "paperwork" supra). Dr Baird neatly summarised its contents as follows:

"The diary is mostly hand-written in reasonably neat and legible handwriting, although there are some typed pages. Certain of the pages are dated and the dates extend between December 2001 and August 2005. Certain sections have been deleted.

The early pages are written in part as letters to his son but they are not directed towards a child, but rather giving the writer's impression and opinion of the state of his marriage, his wife's character and behaviour, and his own role in all this. The themes are repetitive but consistent. He is very critical of his wife. He writes in idealised and unrealistic terms about and to his son, and I cannot detect any reference to any contribution ... that he may have made to the separation in the marriage ...

Within the body of the papers there is a section headed Autobiography, the first few pages of which are hand-written but they are then typed. The final entry in this section is a typed entry for 15 April 2008, less than two months before the date of the ... offences".

 

The last entry is "I feel like running away from this racist family but my two kids are involved in this game now".

[18] Dr Baird probed the appellant's background in some depth. This time he said that he had been bullied at school. He had progressed well and had gone on to tertiary education, initially in the Punjab and later, when living with his sister and her husband, in Oxford. His account about his coming to, and living in, Glasgow was as before.

[19] The appellant told Dr Baird that he had been drinking heavily for 7 years. He gambled and visited saunas. In 2005, his nephew had shot him near his ex-wife's home. He had been attending a part time course at the Metropolitan College. He gave an account of losing his temper when told that he was doing too much photocopying, resulting in him being put out of the library. His account of the lead up to his hospitalisation involved him going to the bar at the Millennium Hotel with £7,000 in his possession. He had met a former prime minister's brother and sister. He had bought the sister a ring. He repeated the two man assault story.

[20] Dr Baird had examined the appellant's medical records and spoken to the appellant's sister. She had been unable to throw any light on the situation. He also spoke to the appellant's tutor. She had previously had a long conversation with the appellant. He told her of an incident in the library in April 2008 when a young librarian had looked over his shoulder to see what he was accessing on the internet. He took exception to this and accused the librarian of discrimination. He was asked to leave by the senior librarian, but insisted on putting in a complaint. The tutor had seen the appellant on the day before the killings. There had been nothing untoward in the appellant's demeanour or behaviour. His tutor had also not noticed any signs of alcohol abuse during the appellant's time at college.

[21] Dr Baird concluded that there was no evidence that the appellant suffered from any kind of mental disorder which could constitute an abnormality of mind.

 

Dr Travers

[22] Meantime, the procurator fiscal had instructed another report, this time from Dr Kathleen Travers, now a consultant in forensic psychiatry. This is dated 15 October 2008. Dr Travers interviewed the appellant on two occasions for over an hour. She had seen the transcript of the dictaphone recording, the appellant's interview and the diary. The appellant told her that he had been suffering from depression for 7 years because of being the object of racism, notably at the instance of his ex-wife. He described his background as involving no problems with his childhood development, although he was bullied at school. His account was otherwise broadly consistent with what he had said before. However, he said that his father had left when he had been born and that he had seen him only once when he was 26 years old.

[23] The appellant gave an account of being shot when he worked at the post office. He had started to drink about 8 years previously and was drinking a bottle of whisky or brandy every day, sometimes in the mornings and sometimes all night. He had spent the last years drinking or gambling and had debts exceeding £50,000. He denied ever having had thoughts of suicide or of harming or killing others. Dr Travers confirmed that the appellant was sane and fit to plead and was not insane at the time of the killings.

 

Prior appeal proceedings

[24] On 23 February 2009, the appellant marked an appeal in person, having dispensed again with his legal representation. The Note of Appeal did not specify whether it was intended to be against conviction or sentence or both. The grounds were stated as follows:

"[Counsel] did not present facts and reasons behind this unfortunate incident for which I am very sorry. I believe judge has not been given enough information. [Counsel] never discussed with me in detail, what went wrong and what leads me to commit this crime. I suffered on the basis of racism from [the appellant's ex-wife's] family only, whom had taken control of my children. Please give me one chance to bring facts for the attention of judge."

 

A covering letter further explained that there were "many things" which the appellant had been unable to add to the Note of Appeal but intended to state when he appeared, representing himself, in court.

[25] The Note of Appeal was treated as an appeal against both conviction and sentence. At first sift, on 19 June 2009, leave to appeal was granted against sentence only. The sifting judge expressly restricted the scope of the appeal to the possibility that, notwithstanding the grave nature of the offences, the starting point selected by the sentencing judge for calculation of the punishment part had been excessive. The sifting judge also confirmed that, insofar as the Note of Appeal was intended to intimate an appeal against conviction notwithstanding the appellant's guilty plea, leave to appeal was refused. There was said to be nothing in the appellant's grounds of appeal upon which it could reasonably be argued that the appellant had not authorised the tendering of a plea of guilty to murder or had not understood the significance of his signing the plea. The approach of the first sift judge on the issue of the arguability of an appeal following upon a plea of guilty requires further mention in due course (infra).

[26] The appellant's appeal against sentence proceeded and new agents were instructed shortly thereafter. The appeal was scheduled to be heard on 16 October 2009, but this hearing was adjourned to allow more medical reports to be obtained. Following yet another change of agency in December 2009, the appeal was continued to 26 February 2010 for another medical enquiry. A new report dated 10 May 2010 from Dr Paul Myatt, consultant psychiatrist (infra), was obtained. The appeal hearing was rescheduled for 27 May 2010, but the appellant requested that it be withdrawn from the roll in order that a report could be obtained from a psychiatrist from outwith Scotland. In the event, however, the appellant dispensed with his new agents again on 26 May 2010. At the hearing on the following day, the appellant addressed the court personally and sought another adjournment to instruct fresh agents. Remarkably, he appears to have been successful with this application.

[27] A procedural hearing was fixed for 24 June 2010, at which new agents and counsel appeared. The appellant advised (again) that he intended to obtain a report from a forensic psychiatrist based in England, which would be available in August 2010. On that basis, the appeal was rescheduled for October 2010. Following a further change of counsel, a procedural hearing was assigned for 16 September 2010, when the appellant sought another postponement. It was indicated that his real aim was to appeal against his conviction and further investigations were required to determine his psychiatric condition, not at the time of the killings, but at the time of tendering his plea of guilty. The appellant wished to withdraw his guilty plea and to advance a plea of diminished responsibility. The motion for postponement was refused, yet the appeal was "continued" to allow further investigation of the appellant's psychiatric condition. In the event, the appellant abandoned his appeal on 5 October 2010. In a covering letter, the appellant confirmed that he was "cancelling" the appeal against sentence.

[28] In a letter to the court, received on 21 October 2010, the appellant confirmed that he wished to appeal against his conviction. He claimed to have a "real story", which could not be presented in an appeal against sentence. He explained that he deserved to be punished, but that the court and media "did not know the other side of the coin". He claimed to have suffered physical, emotional and mental torture for 7 years at the hands of his ex-wife and her family. His previous psychiatrist, Dr Baird, "did not have [the] real and whole story" of his abuse, having met him for only an hour and a half. Dr Myatt had pre-judged him on the basis of Dr Baird's earlier report and media publicity. His legal team had told him that Dr Myatt's conclusions were wrong and that an independent psychiatrist was to be instructed. His previous legal team had not fought his case "honestly".

 

The SCCRC reference and ground of appeal

[29] On 7 December 2012, the Scottish Criminal Cases Review Commission referred the appellant's case to the High Court. Following an initial rejection of two possible grounds of referral in February 2009, the SCCRC had considered further submissions on behalf of the appellant, which were supported by a report from Dr John Crichton (infra), and reached a different view on a single ground. The reference proceeded in respect of that ground, namely that there is "fresh evidence" in relation to the appellant's mental health at the time of the killings (Reference, para 82).

[30] On 24 January 2013, a Note of Appeal, based on the ground of reference, was lodged. It avers that there is significant evidence "not heard" at the original proceedings relative to the appellant's mental state at the time of the killings. By way of explanation as to why the alleged "fresh evidence" was not heard in the original proceedings, it is said that neither of the two psychiatrists instructed to examine the appellant in 2008, namely Drs Reid and Baird, had considered personality disorder or properly considered whether the appellant suffered from such a disorder, which may have founded the basis for a plea of diminished responsibility. Their psychiatric examinations were, thus, defective. Such failures by skilled witnesses were sufficient to satisfy the "reasonable explanation" threshold in the circumstances.

[31] The appellant sought the substitution of a conviction for culpable homicide and the imposition of a "commensurate" sentence. Notwithstanding that the appeal proceeded in the context of a guilty plea, the evidence was of such a kind and quality (being described variously as credible, reliable, cogent and important) that it was likely to have been found by a reasonable jury, under proper directions, to have been a material consideration of a critical issue at the trial. In any event, the appellant contended that Dr Baird had acknowledged his failure to address personality disorder (PD) in his examination of the appellant in 2008 and had subsequently stated that there was "ample evidence" to support a diagnosis that the appellant suffered from a paranoid personality disorder (PPD). Dr Reid had acknowledged that he had not diagnosed the appellant as suffering from a PPD in 2008, but agreed that the appellant may have suffered from such a disorder.

[32] Standing the fresh evidence, it was said to be clear that the appellant ought not to have pled guilty to murder. There was a proper psychiatric and forensic foundation for diminished responsibility, and a corresponding amelioration of his culpability. Accordingly, it was contended that there had been a miscarriage of justice.

[33] At a procedural hearing on 4 October 2013, the court fixed a four day evidential hearing. At that stage, it was envisaged that evidence would be led from Drs Crichton, Baird, Myatt, Reid, Brodie and Gray and possibly one further witness for the appellant. In order to confine the hearing within reasonable bounds, it was agreed that the medical reports would be taken as read and as representing the psychiatrists' examinations and findings at the time they were prepared.

 

Post Conviction Reports
Dr Paul Myatt

[34] In late 2009 or early 2010, new agents for the appellant (McQuillan, Glasser & Waughman, Hamilton) instructed Dr Paul Myatt, consultant forensic psychiatrist at the State Hospital, Carstairs, to examine the appellant. This was after leave to appeal against conviction had already been refused, although the appeal against sentence was extant. Dr Myatt concluded that the appellant:

"3) ... has an abnormal personality and ... meets the International Classification of Diseases (10^th Edition) diagnosis for paranoid personality disorder (F60.0). This has been a condition that has been present throughout his adult life. This condition appears to have been associated with considerable personal distress. Traits strongly suggestive that he has suffered from a paranoid personality disorder include: an excessive sensitiveness to setbacks and rebuffs; a tendency to persistently bear grudges; tenacious sense of personal rights, out of keeping with the actual situation; excessive concerns about his spouse's fidelity; a degree of grandiosity. His general attitude to his ex-wife is one of marked suspicion and hatred, and making tape recordings when he had his children is extremely unusual. ... although academic research into this condition is limited, there is a recognised association between the presence of a paranoid personality disorder and extreme violence in psychiatric literature. This clinical finding does not imply causality."

 

On the issue of diminished responsibility, Dr Myatt identified three factors that could have caused an abnormality of mind at the time of the offence. The first was alcohol. The second was depression. The third was the PPD. He concluded that there was insufficient material to state that the appellant was suffering from an affective disorder at the time of the offence.

 

Dr John Crichton

[35] Dr John Crichton, consultant forensic psychiatrist at the Orchard Clinic, prepared an extensive report for the appellant's agents dated 14 August 2012. This repeated much of the information contained in the earlier reports and narrated at some length the appellant's personal history and his account of the incident. The appellant had said that 3 May was a regular day when he would see the children. The appellant placed more emphasis upon the incident in the library as exacerbating his general frustration and anxiety about his domestic circumstances. He admitted to Dr Crichton that the previous account given of his being a victim of a sexual attack was "erroneous because of the confusion he was in in hospital". Although he still offered no explanation as to why he bought the knife, his intention had admittedly been to kill his children and then to kill himself. He appeared to fluctuate between saying that on the one hand he was a victim and, on the other, that he had become a villain and would take all responsibility for his actions.

[36] Dr Crichton entered into a "general discussion" towards the end of his report in which he stated that:

"There is evidence that [the appellant] has a personality disorder and I think it is likely that he suffers from a paranoid personality disorder. This disorder is a long-term abnormality which would have formed in later adolescence and be present throughout the adult life."

 

He expressed the opinion that, although it is difficult to know exactly what was going on in the appellant's mind at the time of the offence, little reliance should be put on his own account given the passage of time and the injuries which he suffered. His account, which was clearly untrue, may have been caused by the "physical effects of his injuries and treatment for those injuries". It was accepted that there was a degree of prior planning. Nevertheless, Dr Crichton describes the "precipitant to the index offence" as being the appellant's upcoming assessment at college and his reaction to having been suspected of accessing inappropriate material on the internet in the library. The appellant, he considered, perceived the world as "a hostile, bullying place because of his disorder personality structure". The structure "is likely to have affected him at the time of the index offence". Various further enquiries were suggested by Dr Crichton, but he concluded with the following finding:

"There is evidence that makes it likely that [the appellant] has a paranoid personality disorder which is a long-term condition. If it is likely that paranoid personality disorder is present, it will have been present at the time of the alleged index offence. My understanding of the law in Scotland is that paranoid personality disorder satisfies the legal category of abnormality of mind."

 

[37] Dr Crichton produced a further report dated 25 September 2013. This quoted from various recent documents, including the SCCRC Reference and the diary of the appellant, which Dr Crichton had recently had access to. The diary, Dr Crichton reported, provided substantial supporting evidence for his diagnosis of PPD. In his previous report Dr Crichton had expressed the view that paranoid personality traits could be exacerbated by excessive alcohol consumption. This had been challenged by some of his colleagues and he accepted that his opinion was not based upon any objective testing or the content of peer reviewed literature but simply upon anecdotal observation of his own cases. In the findings in this report, Dr Crichton expressed the following view:

"(6) There is no automatic conclusion that any abnormality of mind automatically would render an offender of diminished responsibility. It continues to be my practice, having identified an abnormality of mind, to comment how that abnormality of mind would affect an individual. It has always been my practice for the court or the jury to then properly decide on whether the severity of that abnormality of mind is sufficient in their view to reduce responsibility from full to partial ...".

 

[38] In a further report, dated 3 March 2014, Dr Crichton considered some of the up-to-date medical records of the appellant and noted the terms of a letter from Dr David Hall, consultant psychiatrist at the State Hospital, dated 19 February 2014, which confirmed that the appellant continued to have symptoms of depression, anxiety and difficulty in coming to terms with his situation. His diagnosis was of a depressive reaction with elements of post-traumatic stress. Dr Hall had confirmed that he had not diagnosed a personality disorder himself, but that had not been the focus of his assessments. Dr Crichton's "final comments" were as follows:

"There appears to be consensus emerging from those who have considered the relevant material, that at the time of the index offence [the appellant] was suffering from a paranoid personality disorder and that in terms of the first stage of a defence of diminished responsibility a qualifying condition - an abnormality of mind - is present. There now appears to be some disagreement amongst the experts with regards to how that abnormality of mind may have affected [the appellant] at the time of the index offence. I think all the experts will agree that this is the province of a jury whether a threshold is passed, where responsibility is reduced from full to partial and this is not for a psychiatrist to decide. From the current evidence available, I think there is evidence that his decision making ability at the time of the index offence was substantially affected by his paranoid personality disorder."

 

Dr Gangopadhyay

[39] The final report was from Dr Partha Gangopadhyay, a consultant forensic psychiatrist with "Independent Psychiatry" Glasgow. Unfortunately, although he was apparently aware of the date for the court hearing, Dr Gangopadhyay was not available to attend court, having gone to India. However, it was agreed by joint minute that the content of his report would represent his evidence.

[40] Dr Gangopadhyay stated that the appellant suffered from an abnormal personality which met the criteria for a diagnosis of PPD. This had been a condition which had been present throughout his adult life, possibly from his early adolescence, and would have been present at the time of the commission of the offence. On the specific question of diminished responsibility, Dr Gangopadhyay said that:

"Considering the ... information ... the ability of [the appellant] to determine or control his acts was substantially impaired at the material time of the commission of the index offences as compared with a normal person. However I would respectfully submit that it is for the court to decide whether [the appellant] had diminished responsibility at the material time of the commission of the index offences."

 

Evidence
Dr Crichton
[41] Dr Crichton explained that, when he had first been instructed in 2012 after the SCCRC's initial refusal to refer the case, he had interviewed the appellant on one occasion. There was no suggestion that the appellant suffered from any mental illness. He was being treated for low mood, but that was common in his circumstances. Dr Crichton had looked, as a matter of routine, at whether the appellant suffered from a PD. It was difficult to reach a view on this in a single interview. A key aspect of PDs was that they were enduring and pervasive. They were formed in childhood and were permanent by adulthood. They occurred where the individual's behaviour fell outwith the normal range. The recognised types were defined in the International Classification of Diseases 2010 (ICD-10), published by the World Health Organisation and used by the National Health Service, or the American equivalent, the Diagnostic and Statistical Manual of Mental Disorders (DSM (iv)) published by the American Psychiatric Association. Dr Crichton considered that the appellant met the criteria in both for a PPD. This disorder affected 0.5 to 1.5% of the population. The general incidence of PDs was about 10-15%, but some 85% of prisoners would satisfy the criteria, mostly for an antisocial personality disorder.

[42] The appellant had over interpreted the library incident. He had thought that, were he to obtain further qualifications, his ex-wife and children would come back to him but, as a result of the incident, all his plans would come to nothing. A PPD, whereby a person saw the world as malignant and cruel and perceived that this would also affect those close to him, would affect the person's decision-making process. It would affect his day to day life.

[43] Dr Crichton had not been aware of the finding of the empty vodka bottles in the car. Hence, he had not considered intoxication as a sufficient explanation for the appellant's conduct. This had been a planned act and not a typical impulsive, alcohol induced, act. The effect of a PPD fluctuated since, if it did not, the individual would not be able to function. There was a long term stressor in the appellant's life, but the library incident had upset the subsisting equilibrium.

[44] Dr Crichton accepted that people do perform terrible acts and may have a PD which, in retrospect, may be thought to be the cause of these acts (post hoc ergo propter hoc). What struck him, however, was that the appellant's writings so misinterpreted the situation that the condition was likely to be persisting at the time of the killings. There were unknowns. In relation to the specific issue of how the PPD had affected the appellant at that time, what Dr Crichton was "quite clear about" was that it was not his task to say that it was sufficient to meet the test for diminished responsibility. However, it was "likely to have substantially affected his decision making at the time".

[45] The information on which Dr Crichton based his reports had all been available in 2008. The psychiatrists had not investigated PPD in any detail until Dr Myatt's instruction. Assuming that Dr Crichton had had the same material available then, he would have reached the same conclusion as he had in 2012. He would have been available to give the same testimony in 2008, having earlier written the paper "Personality disorder and the law in Scotland: a historical perspective" (2003) 14 Journal of Forensic Psychiatry & Psychology 394.

[46] It was possible to have a PD but for that to have no causal link, or "relevance", to the act under consideration. The library incident had occurred two weeks prior to the killings. There was no mention of it in the diary. The appellant's PPD was so pervasive that it was extremely unlikely that it did not play a substantial part. Alcohol consumption was significant, but it could not be disentangled from the PPD.

 

Dr Baird
[47] Dr Baird said that in 2008 he had still been working largely under the regime which had applied before Galbraith v HM Advocate 2002 JC 1. He had not been aware that PD was a factor that could be considered relevant to diminished responsibility. He now considered it quite likely that the appellant had been suffering from a PD, although he did not assess him for this at the time. The appellant had paranoid traits but, if he had been assessing him for a PPD, Dr Baird would have done so over a longer period of time. It is an enduring malfunctioning which Dr Baird would have expected to be documented or spoken to by relatives. It ought to have been referred to in contemporaneous medical or employment records. He had spoken to the appellant's sister and to his tutor, who had thought him "relatively unremarkable". Dr Baird did not perceive the library incident to be particularly significant. He could not say if the appellant had a PPD. If he had, it would cause him to view the world in a restricted and distorted manner and to make decisions based on skewed views.

 

Dr Reid
[48] Dr Reid had examined the appellant in 2008 for mental illness, including personality disorder, albeit with a particular focus on whether he should be detained in hospital. He had only seen him once. He had concluded that the appellant had no mental illness. If he had had any concerns about this, he would have expressed them. He had said (supra) that the appellant was not suffering from diminished responsibility at the time. The appellant had denied drinking to excess, although subsequently Dr Reid had become aware of different accounts of his drinking. He had no recollection of the appellant making any mention of the library incident.

[49] If Dr Reid had diagnosed a PD, this would have been after successive interviews and accounts from friends and family. Alcohol abuse created a difficulty in reaching such a diagnosis because ambiguity arose from disentangling alcohol and PPD. Alcohol abuse could result in paranoid ideation. He had been aware of the empty vodka bottles. Dr Reid did not consider the library incident to be significant. The delay between the events suggested that the appellant had not reacted to it. There had been considerable planning prior to the killing and the appellant had known what he was going to do when buying the various items, such as the knife. There were other explanations for the appellant's behaviour, such as anger, frustration or other human emotions.

[50] Other psychiatrists had seen the appellant in his current environment, but there had been no description of a PD, now that alcohol was not present as a confusing factor. This could be seen from the content of Dr Hall's letter of 19 February 2014 (supra). The appellant was anxious and depressed, but there was no diagnosis of PD. Dr Reid could not assert that Dr Crichton and Dr Myatt were wrong to diagnose PPD, but he was not in a position to make that diagnosis. He saw no evidence of it at the time.

 

Dr Gray

[51] Dr Gray had been instructed by the appellant's agents to examine the appellant in July 2008 to determine whether he was sane and fit to plead. He saw him for 30 to 40 minutes. He had a letter of instruction and a Note from counsel. There had been no evidence of an abnormality of mind which had substantially impaired his ability, as compared to a normal person, to determine or control his actions. Alcohol may have influenced his actions, but the appellant had made no mention of the library incident.

[52] If Dr Gray had been looking to see whether the appellant had a PD, he would have conducted a more detailed examination, including several interviews. He accepted that Dr Crichton's diagnosis was correct. There was no scale of severity and it was very difficult "to attribute causality" to the behaviour. Many thousands of individuals had PPDs, but subsisted satisfactorily in the community. Dr Gray was unable to link the library incident to the killings. The PPD may have had some effect on his behaviour, but this could not be quantified. Alcohol can make any individual paranoid. That too was a working hypothesis. Persons with PPDs could pre-plan as could those without. It was a contrary indication, but not an absolute one.

 

Dr Myatt

[53] Dr Myatt had been instructed in 2010 for the purpose of an appeal. He had seen the appellant on 5 occasions. Ordinarily, in the pre-trial setting, he would only have had one meeting in order to determine sanity, fitness to plead and whether the person should be detained in hospital rather than prison. Dr Myatt had diagnosed PPD, having regard to a constellation of traits and using ICD-10 and DSM (iv) as a checklist to confirm his diagnosis. As with his colleagues, he did not think that this was a diagnosis that could be made on the basis of one interview. Three sources of information were needed, from: interviews with the individual; background medical reports; and accounts from family or friends. It was one of the more difficult diagnoses to make. It was not uncommon and affected about 1.4% of the population (ie 14 in every 1000). Genetics and early upbringing were factors, but the disorder was fully in place by adulthood (aged 18). A person knowing the individual reasonably well would realise that something was wrong with him. As many as 80% of convicted criminals had PDs. Dr Myatt had last seen the appellant in 2010 and had not had sight of any recent medical records.

[54] In his letter to the SCCRC, Dr Myatt said that PPD could be considered but that he did not think it was "relevant". It was not possible to gauge the "severity" of the disorder, in a medical sense. The appellant had been "perfectly capable of controlling himself" at the time of the killings. It was not clear, in the circumstances, how the appellant's PPD had led him to perpetrate the acts. There was no direct link. He had had the ability to make a different decision, but chose not to do so. He had prepared what he was going to do over a period of hours, if not days. He may have been very angry, but could not have retained the intensity of that emotion over this length of time. His hostility to his wife was insufficient to cloud his judgment over such a prolonged period. The library incident had been on 17 April, 2 weeks before the killings. Although the appellant placed considerable importance on education, Dr Myatt could not see how that incident could have influenced what had happened 2 weeks later. If he had been outraged at the library, he could have attacked it. There was no mechanism whereby it could have prompted the killing of his children. He had had no paranoid feelings regarding his sons. His actions could only have been designed to cause maximum distress to his ex-partner.

 

Submissions
Appellant
[55] The Note of Appeal proceeded on the basis that there was fresh evidence, but it was recognised that, before the case could progress further, there required to be a reasonable explanation as to why that evidence was not introduced into the original proceedings. It was accepted that, because this conviction had proceeded upon a plea of guilty, the statutory provisions in section 106(3) and (3A) were not straightforward in their application. However, the reasonable explanation here was that the skilled witnesses, who had been instructed by both the Crown and the defence in 2008, had failed to identify a condition which the appellant suffered from. There were now 3 consultant psychiatrists who said that the appellant had a PPD and must have been suffering from it at the time of the offence. Dr Baird accepted now that he had made a mistake and had not understood the principles, which stemmed from Galbraith v HM Advocate (supra) and broadened the spectrum of conditions which could be taken into account in sustaining a plea of diminished responsibility.

[56] There may have been a failure on the part of the appellant's legal advisers to instruct an investigation into PD. The appellant's current advisers had been unable to find the letters of instruction and, in particular, the Note from counsel (supra) which had accompanied the instructions to Dr Gray. It was accepted that it was plain that the appellant's legal representative had displayed little enthusiasm for proceeding down the diminished responsibility route. However, if advice were sought from an expert psychiatrist and nothing had come back to suggest PPD, what could the legal representatives have done? If the psychiatrist stated that there were no features justifying a plea of diminished responsibility, is the legal representative then going to say that such a plea is still open to the appellant? There was no other reason which could be advanced as to why diminished responsibility had not been further explored. Dr Baird had reported that there was no mental disorder or abnormality of the mind. There was no reason for agents to go behind that. In asking whether there was a reasonable explanation, it was not necessary for that explanation to be a good one. The court might think that the reason here was not a very good one, but it would have been highly unusual for the appellant's legal representatives to second-guess the views expressed by psychiatrists in such clear terms. They had been told by 2 psychiatrists (Dr Gray and Dr Baird) that there was no mental abnormality.

[57] The substantial weight of the evidence was to the effect that the PPD was not discoverable at the time and, of course, Dr Baird had not been looking for it, as he was applying the wrong test. A plea of guilty was then tendered, yet there were 3 eminent doctors stating that the appellant does suffer from PPD, which had a potential to impair his actions at the time. The "checklist" in Galbraith v HM Advocate 2002 JC 1 (LJG (Rodger) at para [54]) was helpful. What was required in terms of the second requirement was that there was evidence that the person was "suffering from an abnormality of mind which substantially impaired [his] ability ..., as compared with a normal person, to determine or control his acts". In terms of the third requirement, it was sufficient if the abnormality affected "his ability to form a rational judgement as to whether a particular act is right or wrong or to decide whether to perform it". In terms of the fourth requirement, there had to be something "far wrong" with the person "which affected the way he acted". In the views of Drs Crichton, Myatt and Gangopadhyay, at the time of their examinations, the appellant displayed personality traits indicating that he had a PPD which he would have suffered from at the time of the killings. There was then evidence for a jury to consider to the effect that the appellant had a recognised mental disorder in terms of the "appropriate science".

[58] It was necessary for the appellant to demonstrate, in terms of the test in Megrahi v HM Advocate 2002 JC 99 (LJG (Cullen) at para [219]), that, even although the new evidence would not necessarily have persuaded a jury to acquit, a miscarriage of justice had occurred. In the context of a plea of guilty, it was sufficient if the evidence now available would have resulted in a different course of action on the part of the appellant. In terms of the fifth requirement in Megrahi, the court had to determine whether the new evidence was of such a kind and quality that it was likely that a reasonable jury would have found it of "material assistance in its consideration of a critical issue at the trial". That of course had to be translated into the situation here, where there had been no trial. In that regard it was sufficient that a jury would have found it of material assistance if a trial had taken place. The test then ought essentially to be whether this evidence would have affected the tendering of a plea of guilty. Would it have affected the advice given and the decision to plead? This was not radically different from a consideration in a defective representation case of what a responsible counsel might have done. The court required to use its own experience in such matters.

[59] As it was put in Fraser v HM Advocate 2008 SCCR 407 (LJC (Gill) at para [132]) the onus was on the appellant to provide an explanation of whether the new evidence would have been capable of being regarded by a reasonable jury as credible and reliable. It was not clear how the assumption (at para [134]), that the proposed new evidence would in fact have been led, could be translated into a situation where there had been a plea of guilty.

[60] Having been asked to clarify exactly what the reasonable explanation was, the appellant formulated it as follows:

"that there was a failure on the part of the psychiatrists to identify a PPD in the appellant at the relevant time (of the offence) which PPD was capable of substantially impairing his ability to determine his actions as a normal person would; that failure resulted in a course of action being taken without the benefit of skilled opinion that there may be a basis for a plea of diminished responsibility; and that what followed thereon in the accused pleading guilty to murder resulted in a miscarriage of justice."

 

This was the type of broad and flexible approach referred to by the Lord Justice Clerk (Cullen) in Campbell v HM Advocate 1998 SCCR 214 (at 242). The explanation had to be objectively "plausible, sufficient and not unreasonable" (ibid, Lord McCluskey at 263).

[61] In the area of fresh psychiatric evidence, Jackson v HM Advocate 1998 SCCR 539 provided some form of precedent, albeit in the context of an appeal against sentence, in that the court quashed a life sentence and substituted a hospital order (see also Baikie v HM Advocate 2000 SCCR 119; Graham v HM Advocate 2005 SCCR 544; Reid v HM Advocate [2012] HCJAC 18, 2013 SCCR 70). In this case, although the Note of Appeal sought a substituted "verdict" of culpable homicide, it was accepted that this was not appropriate. Where there was conflicting medical evidence, the matter would require to be re-assessed by a jury (cf where there is consensus, Craig v HM Advocate, unreported, 18 May 2001). However, it was accepted that Pickett v HM Advocate 2007 SCCR 389 posed a problem where it stated (at para [55]) that, upon an appeal, it was not possible for the court to authorise the withdrawal of a plea of guilty.

 

Crown
[62] The Crown accepted the competency of an appeal against conviction which had followed upon a plea of guilty (Carrington v HM Advocate 1994 SCCR 567). However, the court ought to refuse the appeal on the basis that the appellant had failed to provide a reasonable explanation as to why the evidence of Dr Crichton, or any other psychiatrist speaking to the relevance of a PD to diminished responsibility, was not heard in the original proceedings. Furthermore, even if the reasonable explanation test had been met, the evidence about the existence of any PD was not of such significance that it would have had a material bearing on a critical issue in the original proceedings. Accordingly, no miscarriage of justice had occurred.

[63] In relation to the reasonable explanation, no evidence had been adduced during the course of the appeal as to the basis and the reasons for the plea of guilty being tendered in the first place. Although Drs Baird and Reid did not diagnose a PPD and Dr Gray excluded a PD, the fact that a particular expert, holding a different view, was identified some years after the plea, cannot be sufficient to constitute a reasonable explanation for evidence not being heard. The evidence of Dr Crichton would have been available at the time if he, as distinct from the other psychiatrists, had been instructed. The mental state of the appellant was an obvious line of enquiry and the appellant's legal representatives would have been expected to make appropriate investigations and preparations in relation to that issue (see Barr v HM Advocate 1999 SCCR 13; Burzala v HM Advocate 2008 SCCR 199; and Lucas v HM Advocate 2009 SCCR 892). It was almost inconceivable that the possibility of diminished responsibility was not in the minds of the legal representatives. It was considered expressly by Dr Gray, albeit that he specifically excluded it when applying the test formulated in Galbraith v HM Advocate (supra). There was material such as the diaries, the dictaphone message and the whole circumstances of the case, on which the opinions of the experts might have been taken. If the appellant did suffer from a PPD then he would have done so in 2008 and he could have been diagnosed at that time. Although Dr Baird accepted that he had not considered the possibility of a PD, he stated that the specific terms of his instructions were to look at whether the accused had been sane and fit to plead.

[64] In relation to the significance of the evidence, the test was whether there must have been a miscarriage of justice in that the evidence was of such significance that, had it been known, a plea of guilty would not have been tendered. The court was concerned with whether there had been a miscarriage of justice as a result of tendering the plea and not whether the test in Galbraith v HM Advocate (supra) might be met if the new evidence were heard by the jury. The correct approach was to look at the significance of the evidence in light of all of the circumstances and determine whether a miscarriage of justice had occurred.

[65] In the normal case where there had been a trial, the approach to new evidence was set out in Megrahi v HM Advocate (supra, LJG (Cullen) at para [219]). Before the court could hold that a miscarriage of justice had occurred, it required to be satisfied that the additional evidence was "not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice". The court required to be satisfied that the evidence was "of such a kind and quality that it was likely that a reasonable jury ... would have found it of material assistance in its consideration of a critical issue at the trial". The additional evidence had to be "likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial".

[66] The only issue at the time of the original proceedings was the appellant's mental state. The court had to consider whether the evidence, which had now been heard, was of such significance that the plea tendered in its ignorance must have amounted to a miscarriage of justice. It was not appropriate simply to find that, if there was evidence suggestive of the existence of a PD, that was enough and the matter became one for a retrial. Were that to be the case, in any situation where a plea of guilty to murder was accepted, it would be open to a convicted person thereafter to search for an expert who was prepared to diagnose a PD satisfying the first of the two elements in the Galbraith test.

[67] Looking at the body of psychiatric opinion, the appellant's PPD was not causally linked to the killings. This was most apparent from the testimony of Dr Myatt, but also from that of Drs Reid and Gray. Drs Crichton and Gangopadhyay had only seen the appellant on one occasion and their reliability ought in that context to be questioned. It was of significance that those doctors who had examined the appellant at the time had found no mental disorder, including any PPD. In any event, Dr Crichton did not say that the actions of the appellant at the time were linked to the PPD. He did not take the view that that was part of his professional responsibility, but something for the court to determine in all the circumstances.

[68] It was of significance that PPD was a lifelong condition, yet there was no incident documented at all in the appellant's life suggesting its existence. Dr Crichton had underplayed the effects of intoxication at the time of the offence and had been unaware of the existence of the two empty bottles of vodka. He had not paid sufficient attention to the history which the appellant gave of excessive drinking. The only contemporaneous report of the appellant's condition came from Dr Hall and he, as the appellant's treating psychiatrist, had not diagnosed a PPD, or even a PD.

[69] Dr Myatt had expressed an opinion based upon five consultations. Although he agreed that the appellant did suffer from a PPD, he disputed that there was a link between it and the killings for three reasons. First, there was the degree of pre-planning over a period of hours or days and, in particular, the purchasing of the knife, the petrol, the choice of location, the use of the dictaphone and the content of the telephone calls. Secondly, the violence was directed towards the children, apparently to cause maximum distress to the appellant's ex-wife. Thirdly, there was the involvement of what may have been a large quantity of alcohol. Whereas Dr Crichton expressed the view that he regarded the library incident as a trigger, the other psychiatrists did not agree. Given that the library incident was some two weeks before the killings, this was unlikely to be the case. The appellant's tutor reported the appellant as functioning well in the days before the offences. He had given no cause for concern. The appellant had been doing well at college. The library incident was a far more trivial one than the long-term stressors in relation to the breakdown of the appellant's marriage. If the appellant had a PPD, there was no evidence that it caused him any significant difficulties. He certainly did not mention the library to any of the psychiatrists who examined him at or about the time of the offence and he did not write about it in his diary. In all these circumstances, no miscarriage of justice had been demonstrated.

 

Decision

[70] There is a fundamental flaw in the basis for this appeal. The error is that the appeal, as with the reference before it, proceeds on the basis that, where there has been a plea of guilty, the significance of evidence emerging after the tendering of the plea is to be approached in the same manner as in the situation where an appellant has denied the offence, gone to trial and been convicted. This is not the case.

A person is entitled to appeal against a conviction where that conviction has proceeded upon a plea of guilty. That much is clear from the terms of section 106 of the Criminal Procedure (Scotland) Act 1995, which creates a general right of appeal against conviction in solemn cases in circumstances in which a miscarriage of justice is alleged (cf Criminal Procedure (Scotland) Act 1975 s 228, as amended by Criminal Justice (Scotland) Act 1980 sch 2, para 1; Criminal Appeal (Scotland) Act 1926 s 1). The manner in which the powers of the High Court, in its appellate capacity, are framed in statute, strongly suggest that Parliament had in mind appeals only against verdicts (1995 Act s 118; 1975 Act s 254, as amended by the 1980 Act sch 2 para 18; cf 1926 Act s 2). A literal reading of the provisions would result in the court being unable to quash a conviction where no verdict of the jury existed. However, at least since Boyle v HM Advocate 1976 JC 32, which was decided under the pre 1980 miscarriage of justice provision (1975 Act s 254(1)), it has been recognised that the court may allow an appeal, which has followed upon a plea of guilty, and quash the resultant conviction. The reasoning was based partly on the same result being achieved in England under identical legislation (R v Forde (1923) 17 Cr App R 99). That such an appeal is competent was recognised much earlier, in Macdonald: Criminal Law (5^th ed) (at p 356), wherein examples of pleading to an incompetent charge or under error as to the true nature of the charge were given. More recently, the court has been prepared to entertain an appeal following upon a plea of guilty based upon additional evidence concerning the appellant's mental state at the time of the offence, it being conceded by the Crown that an assertion of miscarriage of justice would overcome any question of competency (Carrington v HM Advocate 1994 SCCR 567, Solicitor General (Dawson QC) at 571).

[71] Whilst recognising the competency of the appeal in Boyle, Lord Cameron was nevertheless at pains to point out (at 36) that:

"It is obvious, however, that very grave difficulties must lie in the path of an applicant who seeks to complain of a miscarriage of justice in a case in which he himself has not only tendered a plea of guilty ... but has done so when acting with legal advice and in full knowledge of the nature and details of the charge to which deliberately and falsely he has tendered that plea and, further, has through the mouth of his counsel, presented a precise and detailed plea in mitigation of sentence."

 

[72] The matter of competency was reviewed in Evans, Petnr 1991 SCCR 160 in which the court refused a petition to the nobile officium seeking the withdrawal of a plea of guilty (prior to sentence) because, citing Boyle v HM Advocate (supra), the alternative of an appeal existed. The court nevertheless again recognised the limits to the range of circumstances in which such an appeal ought to be allowed. In particular it (LJG (Hope) at 163) referred to Healy v HM Advocate 1990 SCCR 110 in which the court (LJC (Ross) at 118) had accepted the statement of the Advocate Depute that there required to be "exceptional circumstances", before the court could allow a plea of guilty to be withdrawn. These were that the plea was tendered under "some real error or misconception or in circumstances which were clearly prejudicial to the appellant" (see for the possible origin of that phraseology, Criminal Procedure (Scotland) Act 1887 s 41). The Lord Justice Clerk (Ross) continued to explain the reasons for this approach as being that:

"... it is a recognised principle of the law that there must be some finality in litigation and it would not be in the interests of justice if individuals after they had been sentenced were permitted lightly or easily to withdraw pleas of guilty which had been tendered merely by asserting that on their part there had never been any real willingness to make the plea."

 

It must be recognised, in this context, that the effect of quashing this conviction would not, in the absence of a Crown concession, result in a substituted conviction for culpable homicide, but a trial covering the facts and circumstances of the children's deaths over six years after the event.

[73] In Rimmer, Petnr 2002 SCCR 1 the court (Lord Cameron of Lochbroom at para [12]) decided that it was competent for the High Court, apparently in its common law appellate capacity and exercising its nobile officium, to allow an accused person to withdraw a plea of guilty prior to sentence notwithstanding the existence of a conviction, which the court did not appear to quash. It is impossible to reconcile that decision with Evans, Petnr (supra), to which the court was not directly referred. Rimmer also sits uneasily with Pickett v HM Advocate 2007 SCCR 389 in which, in an appeal, the court held that it could quash a conviction but could not allow a plea to be withdrawn. The court in Rimmer regarded Healy v HM Advocate (supra) "with some degree of caution" on the competency point standing Crossan v HM Advocate 1996 SCCR 279, in which an appeal against a judge's refusal to allow a plea to be withdrawn was entertained, although it failed on its merits. Nevertheless, the principles outlined in Healy, which describe the circumstances in which an appeal against a conviction proceeding upon a plea of guilty may succeed, were not subject to adverse comment. Indeed in Pickett (supra at paras [58]-[59]) there was specific approval of the views of the Lord Justice Clerk (Ross) in Healy and of the echoing remarks of the Lord Justice Clerk (Gill) in Reedie v HM Advocate 2005 SCCR 407 (at para [11]) that:

"[11] A plea of guilty constitutes a full admission of the libel in all its particulars (Healy v HM Advocate). ... In view of the conclusive nature of such a plea, it can be withdrawn only in exceptional circumstances (Dirom v Howdle [1995 SCCR 368]): for example, where it is tendered by mistake (MacGregor v MacNeill [1975 JC 57]) or without the authority of the accused (Crossan v HM Advocate [supra]). There is little scope, if any, for the withdrawal of a plea that has been tendered on legal advice and with the admitted authority of the accused (Rimmer, Petnr [supra])."

 

[74] Those are the principles that apply to a case such as this. In that regard, it is not suggested otherwise than that the appellant's plea was tendered, having received legal advice, and with his authority. At the diet of 26 November 2008 he was represented by senior counsel and agents. He was present when the plea was stated in open court. He signed the written record of plea himself (1995 Act, s 77). What requires to be at the forefront of the court's thinking, therefore, in this type of appeal is that the scope for allowing it is, at the most, "very little". In particular, an accused person has the right to plead guilty, if he wishes to do so. He may exercise that right without any consideration or examination of the strength of the likely evidence against him. Indeed, he may well, on the one hand, elect to do that because he has a general awareness of the circumstances and wishes to obtain as significant a discount in sentence as can be afforded under section 196 of the 1995 Act. In many cases, an accused may have a much greater knowledge of these circumstances and those able to testify to them than a legal representative starting with a blank canvas. If, on the other hand, an accused decides to conduct a detailed assessment of the likely evidence or to explore the range of possible defences, including diminished responsibility, he may or may not find a plausible line of defence. Even if he does, it may or may not succeed in the longer term. If that route is chosen, however, and he fails in his quest, the level of discount will have diminished significantly as time passed.

[75] At the time of the appellant's plea, it should be noted that the court's pronouncements in HM Advocate v Boyle 2010 JC 66 on the restrictions on discounts for punishment parts had not been made. The appellant achieved a much higher discount than would have been open to a court now. In any event, it must be recognised that the appellant achieved a very significant advantage by pleading guilty early rather than being convicted, as was clearly a real possibility, of murder after trial. His ability to seek parole will commence many years before it would have done, if the appellant had been convicted after the verdict of a jury. No doubt, he may have been advised on these matters by counsel and agents, although just what that advice was is unknown (see infra).

[76] Because the decision to plead guilty rests exclusively with an accused, and for the reasons in connection with finality expressed in Healy v HM Advocate (supra), where there is a subsequent appeal based upon the appearance of what is said to be new evidence, it is not appropriate to carry out an exercise which involves a comparison of that evidence with that which was, with hindsight, apparently available at the time of the plea in a manner similar to that where the court is considering a "fresh" evidence appeal in which the appellant was convicted on the basis of actual testimony. The question is not whether, looking at the known and new evidence, the appellant might not have been convicted. The question is whether a miscarriage of justice has occurred as a result of the appellant's decision to tender the guilty plea. For that question to be answered in a manner favourable to an appellant, the court must first know in detail the circumstances in which that plea came to be tendered. It is after all only with a firm grasp of that information that the court can begin to look at whether the appellant tendered the plea in circumstances which would satisfy the tests in Healy and Reedie (supra). This is likely to involve testimony from not only the appellant but also his legal advisers. In this case, for example, it would involve an exploration of what advice was tendered to the appellant and why he accepted (or did not accept) that advice. In this case, the stark reality is that there has been no exploration of that issue. No contemporaneous material which might have thrown light upon this area, such as consultation notes, was made available. For these reasons alone, the appeal is bound to fail since the court cannot find that the plea was tendered under "some real error or misconception or in circumstances which were clearly prejudicial" to the appellant.

[77] From a very early stage, the appellant has had legal advice from agents and, most significantly, an experienced specialist criminal senior counsel. There can be no question but that that counsel would have been well aware of the test for diminished responsibility set out in Galbraith v HM Advocate 2002 JC 1. The court has no reason to suppose that he would not have tendered appropriate advice upon that issue. That advice ought to have been that there was, amongst other choices, the option of pleading guilty and obtaining the maximum discount or alternatively instructing a psychiatrist to carry out a detailed examination to see if there was a prospect of meeting the Galbraith test. There has been no evidence about what advice was given. What is known is that, from an equally early stage (ie prior to service of the indictment) the appellant's then advisers had obtained a psychiatric opinion from Dr Gray. Dr Gray has confirmed that he was asked to express a view upon whether the appellant was sane and fit to plead. It is apparent that he had both a letter of instruction and a Note from counsel, but the content of these was not established. Neither was produced. It is clear that Dr Gray did advise that he had been presented with no evidence to support a defence based upon the Galbraith test. That then left the appellant's advisers with a choice of whether to accept that or to pursue it further by, for example, obtaining a second opinion. Whether that was considered is simply not known.

[78] The appellant changed agents at or about the time of service of the indictment. Whether these new agents had sight of Dr Gray's report and what decisions they took in relation to it are also unknown. It is at least possible that they did not have sight of the report, or indeed knowledge of Dr Gray's involvement, since they chose to obtain legal aid sanction for the instruction of a different expert, this time Dr Baird, at or about the time of the first Preliminary Hearing. Once again, what is not known is just exactly what Dr Baird was asked to do. There was an obvious requirement on the part of the appellant's representatives to ensure that he was sane and fit to plead, since otherwise the taking of the appellant's instructions might prove problematic. Clearly, Dr Baird was asked to report on that matter and did so. Whether he was asked to enquire into the applicability of the Galbraith test is not known, but the fact that he was unaware of that test would suggest that he was not. Whatever the position may have been, it remains the position that it was for the appellant to provide instructions, if asked, upon whether to go down the route of exploring diminished responsibility. There was no requirement to do so if the choice was, as it appeared to be, to plead guilty.

[79] If the court were required to make a decision on whether there was a reasonable explanation for the new evidence not to have been led at the trial, it would have been that no such explanation has been demonstrated. The line developed by the appellant was to maintain that both the Crown and defence psychiatrists instructed prior to the plea of guilty had failed to diagnose the appellant's PPD as they should have done. It was therefore submitted that a reasonable explanation existed for the new evidence not being led. However, this all presupposes that the psychiatric reports from 2008, or one or more of them, played a part in the advice tendered to the appellant and his decision to plead guilty. There is simply no evidence that this was the case. There is no evidence that at the stage of the plea the defence had had sight of the reports from Drs Reid and/or Travers or, as noted above, that his new agents had seen that of Dr Gray. Agents and counsel must at least have had Dr Baird's detailed report but the degree of reliance placed upon it, and for what purpose or purposes, remains uncertain. It was certainly not mentioned to the judge at first instance.

[80] What appears to be tolerably clear is that had the appellant wanted to explore the issue of whether he suffered from a PD, and if so what effect it might have had at the time of the killings, his legal advisers could have instructed a psychiatrist to do so. This type examination would have required several interviews as well as the gathering of information from friends and family. Such a course of enquiry would have been one obvious route to follow, if it had been decided to explore lines of defence and thus lose the prospect of a maximum (or, as it happened, beyond the maximum) permitted discount (see Lucas v HM Advocate 2009 SCCR 892, Lord Carloway at para [22]). There is a reasonable explanation, at least in practical terms, as to why such a course may not have been embarked upon, but that cannot form a basis for overcoming the hurdle of demonstrating the existence of an explanation in the context of the statutory test. Had the appellant instructed Dr Crichton, or no doubt other psychiatrists, to examine the issue of PD, evidence of the appellant having suffered from a PPD would have emerged. Indeed, Dr Crichton stated that he himself would have made such a diagnosis at the time. There is no reasonable explanation for the evidence of such a condition not being available at the time of the plea standing the physical material then known (eg the diary and the content of the dictaphone message) and the circumstances of the killings.

[81] The final issue is whether the new evidence, notably that from Dr Crichton, is of such a kind and quality that it would have been likely to have been of material assistance to a jury on a critical issue in the original proceedings (eg Megrahi v HM Advocate 2002 JC 99, LJG (Cullen) at para [219]). The court has, of course, said that this is not the test in this type of case, but, if it were, the question would have to be whether the fact that the appellant suffered from a PPD at the material time would have been capable of influencing the jury into finding, on a balance of probability, that the test in Galbraith v HM Advocate (supra, LJG (Rodger) at para [54]) had been met. For this to be achieved, the material presented would have to have been such that a reasonable jury could have found that, at the material time, the appellant suffered from an abnormality of mind which substantially impaired his ability, as compared with a normal person, to determine or control his acts or which affected his ability to form a rational judgment as to whether a particular act was right or wrong or to decide whether to perform it.

[82] The test in Galbraith could only be met if there was material, in the form of psychiatric opinion, to enable a reasonable jury to draw the foregoing inference about the appellant's state of mind. Alcohol induced behaviour is excluded. There is no such material. The appellant may have a PPD, although that is by no means clear given the absence of any longstanding symptoms or a current diagnosis by his treating psychiatrist. However, many persons functioning in society have such a disorder yet they do not commit crimes of extreme violence. Its existence is not at all determinative of the critical issue of causality. Dr Crichton did make it clear that he regarded the issue of whether diminished responsibility had been made out as being one for the court and not a psychiatrist. Nevertheless, at times in his evidence, he did say that the PPD would have been likely to have substantially affected his decision making at the time.

[83] There are a number of problems with this view. First, it does not take sufficiently into account the fact that, at the material time, the appellant may have been significantly under the influence of alcohol; hence the empty vodka bottles. Secondly, it is based upon the library incident operating as a trigger to the appellant's extreme behaviour. He had, despite any PPD, not behaved in this type of way before and his PPD could thus be seen as essentially under control. The library incident was some two weeks prior to the killings and there was no basis for supposing that such an incident could produce a state of mind capable of such appalling acts towards his two young sons. In this regard the court considers that the views of Drs Reid, Gray and Myatt would be preferred by a reasonable jury to those of Dr Crichton and Gangopadhyay. Thirdly, although it is by no means conclusive, the jury, in assessing the effects of the PPD at the time of the killings, would have been bound to take into account the length of time during which the appellant carried out his preparations in advance of killing his sons. Contrary to what he told Dr Crichton, this was not a normal day upon which he had contact with the boys. He began the day by lying to his own mother about where he was going. He purchased the tools which would enable him to carry out the killings. He dictated messages to be read after the deaths of the children and himself. He telephoned his ex-wife in advance with a final sinister message, having ensured that she would have an operating phone. Fourthly, the jury would have available to it evidence that none of the psychiatrists who saw the appellant at or about the time of the killings detected any form of abnormality in his mental state when they examined him at a time reasonably proximate to the killings. Finally, the only independent person who had seen the appellant shortly before the killings, namely his tutor, had not noticed anything abnormal in his behaviour.

[84] Accordingly, the court concludes that what is said to be "fresh" evidence would not have been capable of having a material bearing on the issue of whether diminished responsibility had been made out. No miscarriage of justice can be seen to have occurred, standing the appellant's plea of guilty. In that respect, the reasoning of the judge at first sift in the original appeal, which identified the appropriate test, was correct. This appeal is accordingly refused.