Hilary Term
[2016] UKPC 6
Privy Council Appeal
No 0104 of 2014
JUDGMENT
Richard Brown (Appellant) v The Queen
(Respondent) (Jamaica)
From the Court of Appeal
of Jamaica
before
Lady Hale
Lord Clarke
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
9 February 2016
Heard on 3 December 2015
|
Appellant
James Guthrie QC
Rowan
Pennington-Benton
(Instructed by
Candey)
|
|
Respondent
Tom Poole
(Instructed by
Charles Russell Speechlys)
|
LORD TOULSON:
1.
On 16 January 2003 in the Home Circuit at Kingston, Jamaica, the
appellant was convicted of murdering Errol Lynch on 22 September 1998. For a
considerable part of the time between the murder and the appellant’s trial he
was detained as unfit to plead. On conviction he was sentenced by the trial
judge (Pitter J) to life imprisonment with hard labour and ordered to serve a
minimum period of 25 years’ imprisonment before he could become eligible for
parole. On 11 March 2005 his appeal against conviction and sentence was
dismissed by the Court of Appeal of Jamaica (Forte P, Smith JA and McCalla JA
(Ag)).
2.
On 19 March 2015 the appellant was granted leave to appeal by the Board.
The reason for the grant of leave was that extensive investigations carried out
pro bono by Mr Timothy Wright, then a solicitor in the firm of Morgan, Lewis
& Bockius, raised concerns about the appellant’s mental health and whether
it had been properly investigated during the trial process. In giving leave, the
Appeal Panel asked that both parties use their best endeavours to provide the
Board with full information as to the basis for and circumstances of the
appellant’s detention from September 1998 to January 2003 including the
circumstances in which he was found fit to plead. The Board is appreciative of
the parties’ efforts, which have resulted in it now having a fuller picture
than at the time when leave was granted.
3.
The prosecution case was that on 22 September 1998 the appellant and two
other men went to deceased’s home in Swallowfield Road, Kingston, and shot him.
The case depended on the eye witness evidence of Mr Artheram White, who lived
opposite the deceased. Mr White died before the case came to trial, but the
judge admitted in evidence a witness statement made by him on 3 October 1998
and a deposition taken from him at a preliminary examination on 17 June 1999.
The witness statement was admitted under section 34 of the Justices of the
Peace Jurisdiction Act and the deposition was admitted under section 31D of the
Evidence (Amendment) Act. In the Court of Appeal it was accepted that it was
permissible for the court to admit one or other of the witness statement and
the deposition, but it was argued that it was wrong to admit both of them,
because the two were consistent and to admit both served no purpose other than
to provide mutual corroboration. The court rejected that argument and there is
no longer any complaint about the admission of Mr White’s evidence, except in
one respect (connected with the appellant’s mental health) which it will be
necessary to explain.
4.
Mr White in his witness statement described the deceased as “the weedman
on the street”. He said that at about 8 pm he was standing by his gate when he
saw three men walking along Swallowfield Road. Under the streetlight he
recognised the face of one of the three men as the appellant, whom he had known
for the past seven years. He did not recognise either of the other men. The
deceased was at a neighbour’s yard but soon returned to his own yard. Mr White
described the events which followed:
“I could see that there was a
conversation between Romy [the appellant] and Burru [the deceased]. Within
seconds of Romy and Burru talking I saw when Romy pulled a gun from his waist
and fired one shot at Burru. Burru was within arm’s reach of Romy. After the
first shot was fired I saw when Burru held on to Romy and a struggle developed
between both men. I saw when both men fell to the ground. I saw when one of the
other men walked up and fired one shot at Burru’s head. I could hear the
explosions. I see fire coming from the gun that Romy and the other men had.
After the second shot was fired I saw when Romy and the other two men ran out
of the yard.”
5.
Mr White’s deposition included some additional details but did not
contradict his witness statement. Both in his witness statement and in his
deposition he gave the date of the incident as 22 November 1998 and remained
adamant about that in cross examination. He was plainly wrong because 22
November 1998 post-dated his witness statement by seven weeks. The only other
cross examination was that counsel put it to Mr White that he had not seen the
appellant with a gun or at all on that night. (It is unsurprising that the
cross examination was not more extensive, because it was a preliminary hearing
and it would doubtless be common for the defendant’s counsel to keep his powder
dry, as used to be the practice in England and Wales when committal proceedings
involved oral depositions.)
6.
The appellant was arrested for murder on 30 September 1998. He was
interviewed under caution and signed a written statement which recorded:
“On Tuesday the 22nd of the 9th,
1998, at about 8 pm, I was walking along Swallowfield Road, when I was met by
two men who, we all went to Burruw’s yard. When entering Burrow’s yard we pass
about five youths sitting in the yard. One of the men with me ask one of the
youth for Burruw. I heard when the youth say ‘See Burruw deh ah come.’ Burruw
entered the yard and I asked Burrow for, to buy weed. I ask Burruw to sell me a
bag of weed. He replied by saying, ‘Me ah go inna mi room fi it, wait.’ The two
youth that follow me to Burruw also ask Burrow for weed. I saw when one of the
men pull a barrel gun and fire two shot at Burruw. I saw when Burruw drop near
to a tree where he parked his van. I ran from the yard, the man also ran … I
threw away the jacket I had on because it had on blood. When Burruw got shot he
was about three feet …”
7.
The appellant gave evidence at the trial, which differed in some
respects from his statement under caution but not in the core of his defence.
He said that on the evening of 22 September 1998 he went to the deceased’s
premises to buy some weed. He was not joined by others and was on his own when
he reached the yard. There were four men sitting at the front of the gate and
two men standing by the gate. He called out for the deceased, who was not
there, but then he saw the deceased cross the road from another house. One of
the two men at the gate started to argue with the deceased and the argument
turned into a struggle in which they fell to the ground behind a parked van.
After they fell to the ground he heard an explosion which sounded like a
gunshot. Then the other man by the gate walked up to the van and he heard
another explosion. The appellant said that he did not have a gun and that he
left. He told his mother about the incident and she told him to throw away his
jacket in case anyone at Swallowfield Road wrongly suggested that he was
responsible for the shooting. He denied giving a written statement to the
police and said that they made him sign some blank sheets of paper. He also
denied knowing Mr White and said that he could think of no reason why Mr White
should have provided evidence against him.
8.
Neither fitness to plead nor diminished responsibility was raised as an
issue at the trial. Prior to sentencing, the only reference made to the
appellant’s health was that in cross examination he was asked whether he
remembered the preliminary hearing at which Mr White came to court and replied
“No, ma’am, I was a sick person them time”. In re-examination he was asked
whether he had received treatment. He said that he was taken to Bellevue
Hospital (“BVH”) when he was at the police station; that he was treated by Dr
Leveridge and that he also went to University Hospital to Dr Ottey. The matter
was not further pursued.
9.
The medical records now available to the Board show that he had history
of a schizophrenic psychotic disorder. He was born on 8 November 1967 and was
first treated at the University Hospital of the West Indies (“UHWI”) in 1987,
but the hospital notes were destroyed in a hurricane.
10.
In 1996 the appellant was convicted of robbery with wounding and
sentenced to a period of probation. The probation service was concerned that he
was mentally disturbed and referred him to the BVH for assessment. The BVH
notes show that he was admitted on 19 August 1996. He was brought to the
hospital by relatives, who gave a history that for about six years he had been
disruptive, attacking them and others, setting fire to property and destroying
furniture. He was said to become aggressive and violent towards others when
faced with stressful situations. He was put on medication.
11.
On 24 September 1997 a BVH progress note recorded that the appellant was
suffering auditory hallucinations and delusions of persecution. The diagnosis
was psychotic disorder modified by ganja abuse. The note referred to relapse
due to non-compliance with medication. He was given an injection and put on a
daily course of medications. On 18 November 1997 his condition was noted to be
stable and his medication was adjusted.
12.
The overall picture which emerges from the medical records is that the
appellant suffered from a chronic mental disorder aggravated by drug abuse;
that with proper treatment his condition would improve and would remain stable
as long as he continued to receive appropriate medication; but that failure to
take his medication would result in relapse and an acute psychotic condition.
There is no evidence whether he was taking prescribed medication during the
months leading to the commission of the offence on 22 September 1998.
13.
Following his arrest, on 13 October 1998 the appellant appeared at the
Gun Court on charges of murder and illegal possession of a firearm. He told the
judge that he needed medical attention. He was acting strangely and the judge
requested a medical assessment. On 21 October 1998 the appellant was taken to
the BVH for assessment but the psychiatrist who saw him noted that he was
uncooperative and suspected him of malingering.
14.
On 11 January 1999 the appellant appeared before another judge, who
ordered a psychiatric assessment. On 27 January 1999 a nurse’s note at the BVH
recorded that he said that he was hearing voices saying “Beware of dark shadows
who eat people”, his speech was unclear and he appeared not to understand the
charge against him. He was to be referred to a forensic psychiatrist, but there
is no record of a further assessment at that stage.
15.
The preliminary examination began in June 1999. The appellant was
represented by counsel, Mr Norman Harrison. The examination concluded in
November 1999 and the case was sent to the Home Circuit for trial. At a
procedural hearing in the Home Circuit a psychiatric report was ordered and the
appellant was examined by a consultant psychiatrist at UHWI, Dr Franklin Ottey.
On 21 June 2000 Dr Ottey reported that in his opinion the appellant was
suffering from a schizophrenic psychotic disorder and was unfit to plead. He
said that the appellant was unable to give a coherent account of the offence
for which he had been charged; that he gave incoherent answers to most of the
questions asked; that he kept muttering, seemingly in response to hallucinatory
voices; and that he displayed gross thought disorder.
16.
The law of Jamaica on fitness to plead was contained at the relevant
time in section 25(1) of the Criminal Justice (Amendment) Act 1960, which
provided:
“If any person indicted for any
offence shall be insane, and shall, upon arraignment, be found so to be by a
jury lawfully empanelled for that purpose, so that such person cannot be tried
upon such indictment; … it shall be lawful for the court before whom any such
person shall be brought to be arraigned or tried as aforesaid, to direct such
finding to be recorded; and thereupon to order such person to be kept in strict
custody, until the pleasure of the Governor-General shall be known; … and in
all cases of insanity so found it shall be lawful for the Governor-General to
give such order for the safe custody of such person so found to be insane,
during his pleasure, in such place and in such manner as to the
Governor-General shall seem fit.”
17.
This provision followed, mutatis mutandis, the language of section 2 of
the Westminster Parliament’s Criminal Lunatics Act 1800, which was in force at
the time of enactment of the Jamaican Criminal Justice (Administration) Act
1960. (Section 2 of the 1800 Act was repealed and replaced by section 4 of the
Criminal Procedure (Insanity) Act 1964, which was further amended by the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and again by the
Domestic Violence, Crime and Victims Act 2004.)
18.
Section 25 of the Jamaican Criminal Justice (Administration) Act 1960
was amended by the Criminal Justice (Administration) (Amendment) Act 2006 and
now expressly provides that “A verdict of unfit to stand trial shall not
prevent the defendant from being tried subsequently if he becomes fit”. This
amendment post-dated the trial by three years.
19.
In the light of Dr Ottey’s report dated 21 June 2000, a jury was duly
empanelled to try the issue of the appellant’s fitness to plead. On 31 October
2000 he was found to be unfit and was ordered to be detained at the
Governor-General’s pleasure. He was detained at the Tower Street Adult Correctional
Centre, Kingston, under medical supervision.
20.
On 9 August 2001 the prison psychiatrist, Dr G Leveridge, reported that
the appellant had made significant progress on medication and was no longer
exhibiting any evidence of active psychopathology. Dr Leveridge considered that
he was now competent to stand trial.
21.
The case was then brought back before the Home Circuit, although there
is no record of precisely how or when this happened. In his plea in mitigation
after the appellant’s conviction, counsel who appeared for him at the trial, Mr
Delano Harrison QC, told the judge that
“… when I first interviewed Mr
Brown, I had occasion m’Lord to report to Mr Justice Karl Harrison a certain
difficulty which I had which in turn led to, at my request, a third examination
of Mr Brown. Drs Ottey and Leveridge had occasion to interview him again
because he had a long period of two years or more at what the doctor describes
as being at the Governor-General’s pleasure. He was unfit for quite a long
time.”
22.
A note in the prison medical record, dated ?/11/02 (the day is
indecipherable) and initialled GL (G Leveridge), reads “Report for Att-at-law
Delano Harrison prepared.” The appellant was seen at UHWI on 19 November 2002
by Dr Ottey, who reported on the following day:
“He [the appellant] said that he
had been imprisoned at the General Penitentiary for the past two years and had
been seen by the prison psychiatrist there, Dr G Leveridge, on several
occasions. He has been receiving psychiatric treatment on a regular basis.
…
He is aware that he has been
charged for murder but said that he had not committed the offence.
… He gave a history of having had
auditory hallucinations in the past but not presently. He displayed no thought
disorder or evidence of delusional thinking …
In my opinion the features of a
Schizophrenic Psychotic Disorder which he previously displayed are presently in
remission because of treatment. It is likely however that this illness would
have caused substantial impairment of his mental state at the time the offence
was allegedly committed.
He is presently fit to plead.”
23.
Mr James Guthrie QC, who appeared for the appellant pro bono on the
present appeal, suggested that there must have been a further report by Dr
Leveridge which is now missing. The Board considers this improbable. It appears
more likely that when Mr Harrison asked the court to order “a third
examination”, the two earlier reports which he had in mind were Dr Ottey’s
report dated 20 June 2000 (that the appellant was unfit to plead) and Dr Leveridge’s
report dated 9 August 2001 (that he was now fit to plead). It also seems likely
that the report referred to by Dr Leveridge in the prison medical record as a
report prepared for Mr Harrison was Dr Ottey’s report dated 20 November 2002
(following an examination of the appellant at the UHWI, at which Dr Leveridge
may or may not have been present). Be that as it may, Dr Ottey’s report dated
20 November 2002 confirmed Dr Leveridge’s opinion that the appellant was now
fit to plead, and no challenge was made to that opinion. It seems clear that
the court, the prosecution and the appellant’s legal team, all accepted that
the appellant was now fit to plead.
24.
Mr Guthrie argued that the appellant’s conviction should be quashed for
several reasons relating to the issue of fitness to plead. First, he argued
that prior to the amendment of section 25 of the Criminal Justice
(Administration) Act by the Criminal Justice (Administration) Amendment Act,
which was three years after the appellant’s conviction, a jury’s verdict of
unfitness to plead had permanent effect and a defendant who subsequently
recovered his health could not lawfully be put on trial. If that argument
failed, Mr Guthrie’s next argument was that after a jury had found a defendant
to be unfit to plead, it was necessary for a new jury to be empanelled to
re-try the issue before the defendant could lawfully be put on trial. If that
argument failed, Mr Guthrie argued that at least there had to be a recorded
formal ruling by a court that the defendant was now fit to plead before he
could be put on trial.
25.
No authority was cited in support of these arguments and the Board
rejects them. The first argument is a misinterpretation of the opening words of
section 25 (“If any person indicted for any offence shall be insane, and shall,
upon arraignment, be found so to be by a jury lawfully empanelled for that
purpose, so that such a person cannot be tried upon such indictment …”). In R
v Dyson, (1831), reported in a note to R v Pritchard (1836) 7 Car
& P 304, Parke J empanelled a jury to decide whether the defendant was fit
to plead. The report states that in directing the jury the judge, at p 306,
referred to the following passage in Hale’s Pleas of the Crown, vol I, p
34:
“If a man in his sound memory
commits a capital offence, and before his arraignment he becomes absolutely
mad, he ought not by law to be arraigned during such his phrensy, but be
remitted to prison until that incapacity be removed.”
26.
Section 2 of the Criminal Lunatics Act 1800 was not intended to change
the substantive law relating to fitness to plead, but dealt with the practical
consequences of a finding of unfitness. It authorised the Crown to give such
order for the person’s safe custody, during royal pleasure, in such place and
manner as it considered fit. If the defendant recovered his sanity, there was
nothing in the Act to prohibit the Crown from sending the defendant back to the
court with a view to his arraignment and trial. Otherwise, if the appellant’s
argument were correct, an innocent defendant who had been found unfit to plead,
and had then recovered his health, would have no possibility of acquittal but
would remain liable to executive detention for the rest of his life.
27.
As to the second and third arguments, the question of the appellant’s
fitness to plead was properly considered before he was tried. At his counsel’s
request an up to date opinion was obtained from Dr Ottey, who reached the same
view as Dr Leveridge that he was now fit to stand trial. It has not been argued
that he was in fact unfit at the time of the trial. The medical evidence was
one way, and the transcript of the appellant’s evidence contains nothing to
suggest that he had any difficulty in giving his account of events or in
understanding and answering questions. If, as seems clear, there was no live
issue as to his fitness to plead at the time of the trial, the argument that
there ought nevertheless to have been a jury trial of the matter, or a formal
judicial ruling that he was fit, is a hollow procedural argument. It would have
been a barren exercise, and the argument that it was necessary has no foundation
in statute or at common law.
28.
Mr Guthrie further submitted that the appellant’s counsel ought to have
objected to the admission of Mr White’s deposition on the ground that the
appellant was unfit properly to follow the proceedings or to instruct counsel at
the preliminary examination. As previously recorded, the deposition shows that
counsel who appeared on that occasion for the appellant, Mr Norman Harrison,
challenged Mr White’s evidence about seeing the appellant at the time of the
shooting and, in particular, about the appellant having a gun. Mr Harrison must
have had instructions to that effect. This fact tells against the submission
that he acted for the appellant in circumstances where the appellant was unable
to give him proper instructions. It is also inherently unlikely that counsel
would appear for a client who was unable to follow the proceedings or to
instruct him properly (except to the extent of bringing the problem to the
court’s attention), and it would be wrong for the Board to conclude that
counsel did so without him having had an opportunity to comment on the
suggestion. Moreover, even if Mr White’s deposition had been excluded, there
would not have been the same ground of objection to the admission of his
original witness statement, which was substantially to the same effect. For
those reasons the Board is not persuaded on the material before it that the
admission of the deposition involved any irregularity. If, however, there was
any irregularity in that regard, the Board is satisfied that it did not result
in a miscarriage of justice.
29.
Turning to the issue of diminished responsibility, Mr Guthrie submitted
that the appellant had a viable defence of diminished responsibility which the
appellant’s trial counsel failed to advance, either because he was unaware of
the evidence to support it or because he failed properly to consider it.
30.
Section 5 of the Jamaican Offences Against the Person Act 1864, as amended,
provides:
“(1) Where a person kills or
is a party to the killing of another, he shall not be convicted of murder if he
was suffering from such abnormality of mind (whether arising from a condition
of arrested or retarded development of mind or any inherent causes or induced
by disease or injury) as substantially impaired his mental responsibility for
his acts and omissions in doing or being a party to the killing.
(2) On a charge of murder,
it shall be for the defence to prove that the person charged is by virtue of
this section not liable to be convicted of murder.
(3) A person who but for
this section would be liable, whether as principal or as accessory, to be
convicted of murder shall be liable instead to be convicted of manslaughter.”
The language is identical to section 2(1) to (3) of the
Homicide Act 1957 for England and Wales as originally enacted.
31.
It is well established that in order to establish a defence of
diminished responsibility (on a balance of probability), it is necessary for
the defendant to adduce medical evidence to support it. Mr Guthrie relied on
the final sentence of Dr Ottey’s report dated 20 November 2002 (“It is likely
however that this illness would have caused substantial impairment of his
mental state at the time the offence was allegedly committed”), together with
the known history of the appellant’s schizophrenia, none of which was before
the jury.
32.
Mr Poole for the prosecution did not dispute that it was open to the
Board to consider fresh evidence on the hearing of the appeal. There have been
numerous cases in England and Wales in which an appellant has sought to raise a
defence of diminished responsibility on appeal, after unsuccessfully running a
different and inconsistent defence at the trial, and the Board considers that
valuable guidance is provided by the case law of the Court of Appeal of England
and Wales (albeit that there are statutory provisions in England and Wales in
section 23 of the Criminal Appeal Act 1968). The leading authority is R v
Erskine and Williams [2009] EWCA Crim 1425; [2010] 1 WLR 183.
33.
In Erskine and Williams the court held that the decision whether
to admit fresh evidence on an appeal was fact specific and that the court has a
wide discretion, focusing on the interests of justice. The fact that the issue
was not raised at trial does not automatically preclude its reception. However,
if an appellant were allowed to advance on appeal a defence which could and
should have been put before the jury, the trial process would be subverted. If
a defence was not raised at trial which could have been raised, or evidence was
not deployed which was available to be deployed, it is unlikely to be in the
interests of justice to allow it to be raised on appeal unless a reasonable and
persuasive explanation was given for the omission.
34.
The court referred in Erskine and Williams to the forensic
difficulty of raising mutually inconsistent defences which involve a) denial of
responsibility for the killing and b) asserting diminished responsibility for
the killing. Lord Judge, CJ said at para 82:
“… the trial process demands that
the defendant, no doubt after considering legal advice, must decide which
defence to advance. In an ideal world, of course, if he were responsible for
the killing, he would admit it. But even if he is responsible, he may, and
often does, choose to plead not guilty. What he cannot do is to advance such a
defence and then, after conviction, seek to appeal in order to advance an
alternative defence, such as diminished responsibility. There is one trial, and
that trial must address all relevant issues relating to guilt and innocence.”
35.
No rule of law prevents a defendant from advancing at the trial a
primary defence and an alternative fall back defence if the primary defence
fails, but there are obviously major practical difficulties in pursuing
inconsistent defences at the same time. A defendant who seeks to do so, and who
gives evidence, is likely to be put on the spot in cross examination as to what
he is really saying. In the present case, if the appellant had raised an issue
as to his mental health, it would inevitably have led to disclosure of his
medical records, including evidence of his past aggressive and violent
behaviour, and this would have weakened his primary case.
36.
Mr Guthrie submitted that there was a reasonable explanation why the
appellant did not advance diminished responsibility as a defence at his trial
and that justice requires that he should have an opportunity to do so.
37.
In the course of the sentencing proceedings Mr Delano Harrison referred
to medical evidence about the appellant’s mental health. This led to the
following exchange:
“HIS LORDSHIP: The last
examination to which you referred speaks to his having an auditory history; ‘… auditory
hallucinations in the past but not presently.’ [The judge continued reading
from Dr Ottey’s report dated 20 November 2002.] And it goes on to say, ‘The
features of schizophrenic psychotic Disorder which he previously displayed are
presently in remission because of treatment. It is likely however that this
illness would have caused substantial impairment of his mental state at the time
the offence was committed.’ That is what the report speaks to. Certainly the
evidence as is, did not suggest that at the time the offence was committed he
was suffering from this mental disorder, the way the offence was committed.
MR HARRISON: If I had that kind of
information then there may have been a different approach to the conduct of the
defence, the question of the level of responsibility.”
38.
Mr Guthrie submitted that this exchange shows that Mr Harrison was
unaware until that moment of the contents of Dr Ottey’s report dated 20
November 2002. The Board regards that as improbable. The report had been
ordered by a judge at an earlier hearing at Mr Harrison’s request. Dr
Leveridge’s note in the appellant’s prison medical record referred to “Report
for Att-at-law Delano Harrison prepared”. It is unlikely in the circumstances
that Mr Harrison did not receive it; and if he did not receive the report for
which he had asked, he would have been likely to ask what had happened. Mr
Harrison himself is unable to throw any light on the matter. Mr Wright has set
out in an affidavit, sworn on 6 November 2014, his investigations into the
case, which included asking Mr Harrison what he could remember about the
matter. Mr Harrison told Mr Wright that he did not recollect anything about the
appellant’s mental illness and that he remembered nothing about his exchange
with the judge during his mitigation.
39.
It seems likely to the Board that Mr Harrison’s comment “If I had that
kind of information then there may have been a different approach to the
conduct of the defence” was a reference to the judge’s remark about the absence
of evidence to suggest that at the time of committing the offence the
appellant’s mental responsibility for his conduct was substantially impaired by
his illness.
40.
However, it is unnecessary to come to a firm conclusion about the
correct interpretation of that exchange. The outcome of this appeal cannot and
should not turn on it. The Board accepts that the appellant should have
received advice about whether it might be possible to advance a defence of
diminished responsibility and, if so, about the choice which had to be made and
its potential consequences. Mr Harrison cannot say whether this happened and he
no longer has his file on the appellant’s case. The appellant told Mr Wright
that he had no discussion with Mr Harrison about his mental problems.
41.
In considering what is in the interests of justice, two matters stand out.
The first is the appellant’s account of the circumstances and cause of the
deceased’s death. He has consistently maintained that he went to the deceased’s
premises to buy some weed; he did not have a gun; he was present when the
deceased was shot by two men whom he described; and he later threw away his
jacket for fear of being wrongly accused of responsibility for the murder. He
said this to the police and to the jury. Mr Wright visited him in prison in
August 2014 and recorded in his affidavit:
“The appellant said that at the
time of the murder of Errol Lynch in September 1998, he was very ill and was
not taking his medication. He said that he did not commit the murder, but was
at the scene of the crime, trying to buy ganja from Lynch, who was his ‘weed
man’. He said that he now knows it was two men, known as ‘Killa’ and ‘Shotta’,
who committed the crime. He described Arthur White, the eyewitness as a
‘coke-head’”.
42.
Mr Wright also stated in his affidavit:
“I asked the appellant if he had
any conversations with Dr Ottey before the trial. He said that Dr Ottey
explained that if he pleaded guilty, then medical records might allow a
conviction for manslaughter, rather than murder. I asked whether the appellant
considered pleading guilty. The appellant said that he did not want to plead
guilty as he did not commit the crime.”
43.
The latest psychiatric report on the appellant, by Dr Clayton Sewell,
dated 2 December 2015, states that “Mr Brown maintains that he is not guilty of
murder”.
44.
The appellant has never said anything which might suggest that his
illness had anything to do with the killing of the deceased, nor was there
evidence from any other witness about the manner in which the appellant was
behaving at the material time to suggest that his responsibility for his
conduct was substantially impaired by his illness. Furthermore, in view of the
appellant’s consistent account (reinforced by what he told Mr Wright about his
unwillingness to accept a conviction for manslaughter because he did not kill
the deceased), there is no reason to suppose that if his conviction were
quashed, and there were a retrial, he would advance a different defence from
that which he has always advanced. To advance a defence of diminished
responsibility would be contradictory to the case which he has elected to
maintain.
45.
The second matter which stands out is the absence of psychiatric
evidence adequate to support a defence of diminished responsibility. Mr Guthrie
properly conceded that the final sentence of Dr Ottey’s report dated 20 November
2002 would have been inadequate. He had not obtained the appellant’s account of
events, nor had he looked at the prosecution’s evidence about what happened or
the account given by the appellant to the police. Those steps would have been
essential in preparing a full report, addressing not only his mental health but
also the critical issue of substantial impairment of responsibility. The Board
does not criticise of Dr Ottey, who had not been instructed to provide a full
report on the question of diminished responsibility, but the appellant is in
the position of not having any psychiatric report on which to advance a viable
defence of diminished responsibility (if he wished to do so).
46.
In summary, the appellant has failed to show that he had or would have a
viable defence of diminished responsibility, or that it would be in the
interests of justice that he should be given an opportunity now to advance a
case contrary to that which he has steadfastly maintained.
47.
It remains to consider the question of the appellant’s sentence. The
appellant was in custody from 9 September 1998 and was sentenced on 23 January
2003. He had therefore been in custody for four years and four months at the
date of sentence. The judge in passing sentence said that this would be “reflected
in the sort of sentence I am going to impose on you”, but it is unclear what
allowance he made for it. The Court of Appeal ordered that the appellant’s
sentence should commence on 23 April 2003. The respondent concedes that the
Court of Appeal was wrong to do so, having regard to the decision of the Board
in Ali v Trinidad and Tobago [2005] UKPC 41; [2006] 1 WLR 269, but there
is an issue as to the approach taken by the judge.
48.
Mr Guthrie submitted that time spent in custody should count against
sentence unless there is good reason to the contrary. Mr Poole submitted that
the judge acted properly within the scope of his discretion and he referred to
the guidance given by the Board in Ajay Dookee v State of Mauritius
[2012] UKPC 21. In that case the court passed a determinate sentence of five
years’ imprisonment. The appellant had spent 14 months in custody on remand.
There was detailed information before the Board about the differences in the
conditions of custody on remand and as a convicted prisoner. In those
circumstances the Board considered that credit should ordinarily be given to
the extent of 80 to 100% for time spent on remand, 80% being the suggested
default position.
49.
The present case is different in two respects. First, the period of the
appellant’s detention as unfit to plead did not result from a decision by him
to plead not guilty (incidentally entitling him to more favourable conditions
than a convicted prisoner), but from his illness. Secondly, in the case of a
determinate sentence the decision about credit for time on remand fixes the
release date. In the present case the minimum period set by the judge merely
sets the earliest date on which the prisoner may become eligible for parole.
The Board does not know what allowance the judge made in setting that date. It
is hard to see why full allowance should not be given for the time spent by the
appellant in custody, unless there is a particular reason for directing
otherwise. The Board considers that for those reasons the proper course in the
present case is to allow the appeal against sentence and remit the matter to
the Court of Appeal for further consideration. The appellant’s longstanding
mental health problems will be an additional factor to be taken into account by
way of personal mitigation.
50.
The Board will humbly advise Her Majesty that the appeal against
conviction should be dismissed and the appeal against sentence allowed. In
conclusion, the Board reiterates its appreciation to those who have acted in
the appeal pro bono.
