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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hendy, R v [2006] EWCA Crim 819 (12 April 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/819.html Cite as: [2006] EWCA Crim 819

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2006

Lord Justice Gage :

1. At about 10.00pm on 25 February 1992 the applicant stabbed and killed Eian Bridges in an alleyway at Kingswood, Bristol. The applicant stabbed the deceased man eighteen times with a sheath knife. The applicant and the deceased were total strangers to each other.
2. On 1 July 1993 at Bristol Crown Court the applicant was convicted of murder and sentenced to be detained at Her Majesty's pleasure with a tariff set by the Home Secretary at 10 years. In July 2004 the applicant applied for an extension of time of 11 years in which to seek leave to appeal against conviction and sentence, this application has been referred to the Full Court by the Single Judge.
3. At trial the applicant admitted killing the deceased. He raised the defence of diminished responsibility which was the sole issue for the jury to decide. He did not give evidence but called on his behalf three consultant forensic psychiatrists and two neuro-psychologists. The prosecution called a prison officer, Dr Warren and a consultant psychiatrist, Dr Browne. Because of the interval of time between the applicant's conviction and his application for an extension of time in which to seek leave to appeal, transcripts of the evidence and the summing-up are no longer in existence. For the same reason there is no copy of the judge's note-book. The summary of the evidence given at trial which follows is taken from a variety of documents consisting of the prosecution case summary, a transcript of the applicant's police interview, witness statements, psychiatric reports, the advice of counsel and grounds of appeal, and the trial judge's report to the Home Secretary.

The evidence at trial

4. The prosecution case at trial was that the applicant, aged 16 at the time, attended a party on the evening of 25 February 1992 where he consumed whisky, vodka and sherry. In the course of the evening he kicked a friend in the face. He immediately apologised and left the house saying "I don't deserve to live. I'm sorry Nick I should be dead." He was followed by friends who pulled him back from standing in front of an incoming car. His friends took him back inside the house and closed the door. However, he threatened to break down the French windows if they were not opened. They were opened and the applicant went into the garden where he sat on a wall. Police officers attended and he burst into tears saying "I've just kicked my mate in the head, I always hurt the people I like and I might as well be dead." The two police officers formed the view that the applicant had been drinking but was not drunk.
5. The police officers took the applicant home. On arriving he hugged his mother and cried. His mother could not recall him ever doing this in the past. He continued to apologise for 20-30 minutes. His mother calmed him down but had to leave at 9.30pm. The applicant drank some orange squash and ate a microwave meal. He then wrote a note to his mother which read "sorry mum, goodbye." He took a knife from his room and went out.
6. The alleyway where he met and killed the deceased was about 100 yards from his home. The attack on the deceased was wholly unprovoked. Following the attack the applicant returned home and went to bed.
7. The following morning he got up after 11.00am and went to buy some cigarettes for his mother. He was later arrested and confessed to the killing whilst being driven to the police station. He said "I done it, I killed a man last night, I meant to stab him once and I got carried away." He told police officers that he had hidden the knife in his bedroom. When asked why he had killed the deceased he replied that it was because he wanted to be put in a Young Offenders Institute. At interview he said that he had accidentally hurt a friend at the party and had then, feeling guilty, attempted to run in front of a passing car. When asked why he had done this he said that he wanted to "stop myself from hurting all my mates I suppose". He said that he had then taken a knife and left home intending to stab someone in order to be caught and receive the help he thought he needed. Asked why he did it, he said:

"I don't know, I can't remember, um just to get myself into some sort of trouble I suppose, I don't really know…stop myself hurting all my other mates."

8. In reply to the question about what he was thinking he said:

"Um, first person who come along I suppose. Stab him once."

He added:

"Um I wanted to just run away. I remember my anger building up and building up and I couldn't control meself any more so I just took it all out in my anger and I just couldn't stop. Just couldn't pull meself to stop stabbing him."

9. He said that afterwards he ran off home and went to bed. He awoke in the early hours and saw floodlights in the lane. He told police officers that:

"…until then I didn't realise what I'd done and went back to bed and I just layed there an hour and a half just thinking and wishing I hadn't done it "

He added that:

"I remember stabbing him. I just thought why I should have made it look more convincing or something. Should have took his wallet and slung it in the Telecom building or something just to make it look something as if it was a mugging rather than something like that."

10. In the course of his interview he indicated that he had difficulty controlling his temper and he had received help in the past from his social worker and a psychiatrist. He said that his temper flared up when people took the "mickey" out of him but rarely did so when he had been drinking. However, he added:

"… the only way I get my temper if I've been drinking is someone like, does something bad, or I do something bad myself."

11. Subsequently whilst on remand at HMYOI Feltham an EEG showed possible damage to the left temple lobe of the applicant's brain. Further tests were conducted at Broadmoor Hospital. They were normal but neuro-psychometric tests demonstrated a mild to moderate left frontal lobe damage.

The psychiatric evidence given at trial

12. The three consultant forensic psychiatrists called on behalf of the applicant were Dr R W K Reeves, Dr Clive Meux and Dr Susan Bailey. In his report Dr Reeves had noted a large amount of alcohol which the applicant had taken before the stabbing. He said that it was difficult to know whether stabbing a complete stranger represented a displacement of anger or whether in fact it was done to get the applicant locked up. In his opinion the applicant's concern about his temper and remorse for it seemed to obviate against any serious personality disorder. Dr Reeves noted that in childhood the applicant had suffered a head injury following a road accident. In his opinion that injury may have caused damage to the applicant's temporal lobe, that part of the brain which governs temper control and learning. He thought that a striking theme was the applicant's despair and realisation that there was something wrong with him. In the doctor's opinion these were not the thoughts of a young delinquent of his age. In his opinion it was very probable that the applicant had sustained a mild to moderate degree of cerebral pathology at some stage particularly in the left temporal lobe but his problems were more complex than being solely related to this. It was his firm opinion that the applicant had an abnormality of mind namely a psychopathic disorder and that the abnormality would have substantially diminished his responsibility for the killing. In his view the aetiology of the disorder was a mixture of organic and social factors. He concluded that the applicant's condition was treatable.
13. Dr Meux found no evidence of mental illness in the applicant but thought that the applicant had serious emotional problems/personality disorder which could be classified as psychopathic disorder. He also thought that the applicant may have had a mild degree of organic brain damage. In his opinion it could be argued that the applicant's responsibility for his actions at the time of the killing was substantially diminished as a result of mental abnormality (personality disorder) from which it could "…be argued he was suffering". In the view of Dr Meux the applicant's alcohol abuse seemed to be a symptom of his emotional problems and not their cause.
14. In her report Dr Bailey said that in her opinion the applicant should be transferred to Broadmoor Hospital under section 35 of the Mental Health Act 1983. Following an assessment pursuant to section 35 her view was that it established that the applicant had an abnormal development of personality, a psychopathic disorder, under the terms of the Mental Health Act and that he was susceptible to treatment.
15. Two neuro-psychologists, Dr Mary Hill and Dr Fiona Clerk were called on behalf of the applicant. Dr Hill thought it very probable that the applicant had sustained a mild to moderate degree of cerebral pathology at some stage in the left temple lobe. She said that a vulnerability of this type might "potentiate" the effects of alcohol. Dr Clark said that psychological testing showed the profile of a young man with a disturbed personality characterised by tension and anxiety, hostility, suspiciousness, low mood and a tendency to ruminate and dwell on issues. In her opinion his alcohol suggested a degree of physiological rather than physical significance. In her opinion, on balance, a hospital order would have much to offer the applicant and he was capable of engaging in and benefiting from treatment.
16. To rebut this evidence, as we have already said, the prosecution called Dr Warren and Dr Brown. Dr Warren said that he found no signs of formal mental illness and found it difficult to say that the applicant suffered from a personality disorder. In his opinion the applicant's problems arose from his inability to control his temper. The issue was whether this loss of temper was pathological or whether it ought to be under his own voluntary control. Dr Warren was unable to say clearly what the applicant's motives were for leaving home with a knife. He reported that the applicant told him that he was still feeling angry and upset about earlier events in the evening and had intended to stab someone once only in order that he would be locked up and not able to hurt anyone in the future. In his last interview with him he recorded the applicant saying that he went out and stabbed the man twice but kept stabbing him because his temper flared up again. Dr Warren said that the question of whether the applicant's loss of temper would constitute an abnormal state of mind was complicated by the fact that he had taken a considerable quantity of alcohol on the night of the offence. He recorded the applicant as telling him that two weeks previously when he had been drinking quite heavily on a camping trip with friends, he found on occasions that his temper flared up and he would "have a go at my mates" for virtually no reason. Dr Warren said that in these circumstances it was difficult to suggest that an abnormality of mind was present although it might have been. In his opinion, the trigger in this case seemed to have been the alcohol together with the feeling that he, the applicant, had again caused hurt to one of his friends. Dr Warren did not support a defence of diminished responsibility.
17. Dr Browne in his report noted the applicant's history which recorded that the applicant had displayed frequent temper outbursts and that his behaviour became so unacceptably aggressive and disturbed that he was expelled from school in February 1991 for fighting. The applicant had told him that he admitted inhaling solvents from the age of 13 onwards. He described the effects of alcohol on himself as making him go from "a bullying mood to a happy mood." Dr Browne noted that the applicant had apparently lost his temper on four occasions in the two weeks before committing the offence. In his opinion the applicant was not mentally ill but clearly had some degree of personality disorder. He was also someone who had difficulty coping with pressures as evidenced by his inability to cope with provocation and taunting at school. Dr Browne said that it was not clear to him what part this inability of the applicant to control his temper played in the offence. The applicant did not recall being particularly angry at the time. Before the incident the applicant recalled being unsettled at the party and being angry with himself when he left it However, he did not recall being angry immediately before the events. Dr Browne thought that consideration should be given to the harmful effects of substance abuse over the years which might have played an important part in intermittently disturbed behaviour. He concluded that the alcohol taken on the night of the events played a very important role in the offence. In his opinion if the applicant had not drunk alcohol before the events, the offence would not have taken place. However, Dr Browne said that this was not to discount the fact that the applicant suffered from an underlying behavioural problem. This problem did not warrant a diagnosis of psychopathic disorder and did not reach a degree where the concept of abnormality of mind could be entertained
18. Accordingly he did not believe that the applicant's condition substantially diminished his responsibility for his actions.

The grounds of appeal

19. No transcript of the summing-up survives. As originally drafted the sole ground of appeal related to fresh evidence obtained on behalf of the applicant which it is submitted is sufficient to render the applicant's conviction for murder unsafe. At a very late stage before the hearing of this appeal counsel for the appellant sought to add by amendment a further ground of appeal relating to the judge's directions given to the jury in the form of two questions for the jury to answer.
20. The fresh evidence in the first ground is in the form of psychiatric reports made by Dr David Somekh, a consultant forensic psychiatrist and Professor Pamela Taylor, Professor of Forensic Psychiatry at Cardiff University. In his report Dr Somekh criticises the opinions and conclusions of the prosecution expert evidence called at trial. Professor Taylor in her report, relying on treatment and examinations carried out by her on the applicant since the trial, expresses the opinion that the psychiatric evidence called by the prosecution at trial was flawed. In the opinion of the both these two doctors the applicant at the date of the killing was suffering from such an abnormality of mind as substantially to diminish his responsibility for the killing. On behalf of the applicant it is submitted that this court should receive this evidence pursuant to section 23 of the Criminal Appeal Act 1968. In the second ground it is submitted that the judge in written questions provided for the jury to answer incorrectly directed the jury on the effect of alcohol as a factor for consideration in the defence of diminished responsibility. In support of this ground of appeal counsel relies on the case of R v Dietschmann [2003] 2 Cr. App. Rep. 54.
21. We shall deal with these two grounds in the reverse order.

Ground 2

22. As is apparent from our summary of the evidence at trial it is clear that on the night of the killing the appellant had drunk a certain amount of alcohol. One of the issues raised in the evidence of the psychiatrists was the part that alcohol, as opposed to an abnormality of mind, played in the killing. Accordingly it was necessary for the judge to give the jury a direction on this aspect of the defence. He did this by giving the jury two written questions to answer. Although there is now no transcript of the summing-up available, copies of the two written questions survive. They read:

"Q1. Have the defence satisfied you that it is more likely than not if the defendant had not taken drink he would have killed as he in fact did? If the answer is no, the verdict is Guilty of murder. If the answer is yes, proceed to question 2.

Q2. Have the defence satisfied you that it is more likely than not that if the defendant had not taken drink he would have been under diminished responsibility when he killed? If the answer is no, the verdict is guilty of murder. If the answer is yes, the verdict is not guilty of murder, but guilty of manslaughter by reason of diminished responsibility."

23. It is conceded by Mr Pringle QC for the respondent that these directions misstated the law as explained by Lord Hutton in Dietschmann. However, the respondent submits that the judge's directions accorded with the law as it was understood at the time of the trial. On this basis Mr Pringle submits that this misdirection is of no assistance to the appellant because this court must consider the appeal on the basis of the law as at the date of trial (see R v Bentley [2001] Cr. App. R. 307).
24. Mr Thornton QC, on behalf of the appellant, submits that the judge's directions did not accord with the law as it was properly to be applied at the date of trial.
25. It is common ground between the appellant and respondent that if the law on this topic at the time of trial was as explained in Dietschmann the misdirection by the judge is such as to render the verdict of murder unsafe. The issue on this ground of appeal is therefore whether the law as held by the House of Lords in Dietschmann was "new law" or represented the law as it always was, "old law".
26. Mr Pringle submits that since the case of R v Atkinson [1985] Crim LR 314 and R v Egan [1992] 95Cr. App. R. 278, judges have invariably and correctly, directed the jury in the same way as the judge did in this case. The two questions which the judge posed for the jury to answer were those first stated by the late Professor J C Smith QC in his commentary on the judgment of the Court of Appeal in R v Gittens [1984] Crim LR 554. In Atkinson and Egan the Court of Appeal approved those two questions. Mr Pringle submits that it follows that the law at trial in 1993 was as stated in Atkinson and Egan.
27. Mr Pringle further submits that if this court holds that the law was always as stated in Dietschmann the floodgates may be opened for appeals in cases where defendants have been convicted of murder following directions in diminished responsibility cases in the same terms as the directions given by the judge in this case.
28. Mr Thornton submits that in Dietschmann Lord Hutton was not stating any new principles; he was re-stating what the law was in Gittens before the Court of Appeal fell into error in Atkinson and Egan.
29. In our judgment the answer to this issue is to be found in the speech of Lord Hutton in Dietschmann with which all the other members of the House agreed. Lord Hutton started his discussion of the law with a section of his speech headed "The interpretation of s.2 (1) of the Homicide Act 1957)". He said (para 18):

"In a case where the defendant suffered from an abnormality of mind of the nature described in s.2(1) and had also taken alcohol before the killing and where…there was no evidence capable of establishing alcohol dependence syndrome as being an abnormality of mind within the subsection, the meaning to be given to the subsection would appear on first consideration to be reasonable clear. I would read the subsection to mean that if the defendant satisfies the jury that, notwithstanding the alcohol he had consumed and its effect on him, his abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing, the jury should find him not guilty of murder but (under subsection 3) guilty of manslaughter. I take this view because I think that in referring to substantial impairment of mental responsibility the subsection does not require the abnormality of mind to be the sole cause of the defendant's acts in doing the killing. In my opinion, even if the defendant would not have killed if he had not taken drink, the causative effect of the drink does not necessarily prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for his fatal acts."

30. Lord Hutton went on to consider the authorities. Having considered them his conclusion was that the law on this topic was as stated by Lord Lane CJ in Gittens. He made it clear that the direction, the subject of appeal in Dietschmann did not accord with Gittens. He then set out a specimen direction which he said should be used by judges when directing the jury on this topic. He made it clear that this direction was not to be regarded as prescriptive. However, he said that he considered that a jury should be directed " along the following lines:

Assuming that the defence have established that the defendant was suffering from mental abnormality as described in s. 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant's mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him."

31. In our judgment it is the route which Lord Hutton took in reaching this conclusion that is the key to the issue on this ground of appeal. As we have already said Lord Hutton was of the opinion that the judgment of Lord Lane in Gittens correctly stated the law. At paragraph 30 of his speech he set out four points which he said clearly emerged from the judgment in Gittens. It is necessary to set out only three of the four points. They are:

"(i) Where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of mind and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing.

(ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendant's mind, the abnormality of mind arising from a cause specified in subsection 2(1) nevertheless substantially impaired his mental responsibility for his fatal acts.

(iii) Accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant had not taken drink he would have killed, the defence of diminished responsibility must fail. Such a direction is incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subsection and the effect of the drink may each play a part in impairing the defendant's mental responsibility for the killing."

32. Lord Hutton went on to refer to the commentary by Professor John Smith on the judgment in Gittens in which the two questions for the jury were first posed. He pointed out that in the two subsequent cases of Atkinson and Egan the Court of Appeal approved these two questions. He analysed the decision in Egan saying that the direction of the judge was in his opinion correct and that the decision of the Court of Appeal in that case, dismissing the appeal, was also correct. However, having stated that in his opinion the judge gave a correct direction to the jury in that case, he went on to say (see para 37):

"But, in my respectful opinion the Court of Appeal made a number of other observations which cannot be reconciled with the principle stated in Gittens and which were erroneous. These observations were made in rejecting an argument by counsel for the appellant…that it was wrong for the Court of Appeal in Atkinson to have approved Professor Smith's commentary on Gittens and that his suggested questions were irreconcilable with the ratio of Gittens itself."

33. In dealing with the judgment of the Court of Appeal in Dietschmann Lord Hutton set out a paragraph from the judgment of Rose LJ in that case which was relied upon by Mr Pringle in support of his submission that the law as explained by the judge in the case subject of this appeal was correct in 1993. The passage cited by Lord Hutton from the judgment of Rose LJ reads:

"In our judgment, there are a number of difficulties, as a matter of principle and authority, with Mr Edis's submissions. First, we do not accept that Professor Smith misunderstood the Court's judgment in Gittens. In our judgment his questions accurately reflect the substance of one aspect of that decision. If it were otherwise, it is inconceivable that, in Atkinson, the incompatibility of the Smith questions with the decision in Gittens would have escaped the court's attention. On the contrary, the court expressly approved the Smith questions as a correct analysis of Gittens. Secondly, in Egan, not only were the Smith questions again approved but the challenge to their compatibility with the decision in Gittens was firmly rejected. Gittens, Atkinson and Egan are all binding on this court."

34. Lord Hutton went on to say (see para 39):

"My Lords, I recognise the force of the point made by the Court of Appeal in both R v Egan (1992) 95 Cr App R and the present case that in R v Atkinson [1985] Crim LR 314 the court would have had the ratio of R v Gittens (1984) 74 Cr App R 272 in mind in approving Professor Smith's questions (Lord Lane having delivered the judgments in both cases). Nevertheless, and with the greatest respect, on a detailed analysis of the cases I am driven to the conclusion, for the reasons which I have sought to give, that the approach taken by the Court of Appeal in Atkinson and Egan in approving Professor Smith's two questions was erroneous and that the judgment in Atkinson cannot be reconciled."

35. In our judgment it is clear from those passages in the speech of Lord Hutton that he was not stating any new principles of law on this topic. In our opinion he was doing no more than re-stating what the law was before the Court of Appeal incorrectly approved the two questions raised by Professor Smith following the judgment in Gittens. It is, in our judgment, relevant to note that Lord Hutton started with a reference to s.2 (1) of the Homicide Act 1959 the meaning of which he said was clear, he went on to approve the judgment of Lord Lane in Gittens on the basis that it was consistent with his construction of that subsection. We have reached the conclusion that the law on this topic as explained in Dietschmann was not "new law" but simply explained what the law always had been since the Homicide Act was enacted and since Gittens. In our judgment it cannot therefore be described as "new law". It follows that the direction given by the judge was wrong and that the verdict of the jury was unsafe.
36. We should add that we were not impressed by Mr Pringle's floodgates submission. It would in our judgment have been unjust and unsatisfactory if we had been driven to dismiss the appeal on the basis that although the verdict of the jury was unsafe on the law as it now is, it would have had to have been dismissed on the basis of the law as it was understood in 1993. However, on the conclusion that we have reached on the issue, as it has been presented to us, this does not arise. Notwithstanding the long delay since trial we extend time for the appellant to seek leave to appeal. We give leave on this amended ground and the verdict of the jury will be quashed.

Ground 1

37. As already stated initially this was the only ground of appeal. It was in respect of this ground that the single judge referred to the full court the appellant's application for an extension of time and leave to appeal. The essence of this ground is fresh evidence. In view of our decision on ground 2 it is not strictly necessary for us to reach any decision on this ground. But this ground has been fully argued and we have heard oral evidence from Professor Pamela Taylor, a very experienced forensic psychiatrist. We have also read a statement made by Dr David Somekh, a consultant forensic psychiatrist. We propose to set out our conclusions on this ground as well.
38. We deal first with the evidence of Professor Taylor. Following his conviction for murder the appellant was transferred to Broadmoor Hospital on 5 July 1993 pursuant to s.47 of the Mental Health Act 1983. He was transferred on the basis of a report from Dr Meux which stated that the doctor was of the opinion that he was suffering from a psychopathic disorder within the meaning of the Mental Health Act. The report stated, as Dr Meux had done in evidence at trial, that the appellant's mental disorder was treatable. Between April 1995 and March 2003 Dr Taylor, as she then was, was directly responsible for the appellant's care and treatment and was his RMO within the meaning of the Mental Health Act. In March 2003 the appellant was transferred to the medium secure unit at the Bethlem Royal Hospital and for all practical purposes from that date Professor Taylor ceased to be his RMO. At some date which is not clear from the papers the work of the RMO was transferred to another doctor. On 22 December 2005 Professor Taylor visited and interviewed the appellant. She also reviewed his more recent records. Her opinion is that from her care of the appellant as a patient and her subsequent knowledge of him she concluded that he was and always has been suffering from a personality disorder. She is further of the opinion that in addition to this personality disorder, at the time of the killing, he was also suffering from the mental illness of depression. She described the personality disorder as a psychopathic disorder within the meaning of the Metal Health Act.
39. In her oral evidence Professor Taylor stressed a point made in her written statement that diagnosis of a personality disorder was very difficult in an individual under the age of 18. She said that as the appellant became older and more mature it became clearer that he had a personality disorder. It was her experience of treating him as a patient over a number of years that caused her to be confident in her opinion that at the time of the killing he was suffering from a personality disorder.
40. She was surprised that none of the doctors who examined the appellant for the purposes of providing reports and giving evidence at trial had diagnosed that the appellant was suffering from depression. She said that there were indications in a number of the reports that could be interpreted as pointing towards depression and she would have expected such a diagnosis to have been made. However, she was clear that his history post-trial demonstrated that he did suffer from a depressive illness. She said that he would need medication to control this depression for the rest of his life. She pointed to difficulties which might arise in the future if he ceased to take medication to control his depression. She said in cross-examination that it had taken probably four to five months for the treating doctors caring for the appellant at Broadmoor Hospital to make this diagnosis.
41. We shall not refer in any detail to the witness statement of Dr Somekh. His statement contained a number of criticisms of the two doctors called by the prosecution at trial. Mr Thornton conceded that these criticisms had all been made by the defence doctors at trial and therefore were before the jury. He did not rely on Dr Somekh's statement in any other way than that it was consistent with the evidence of the defence doctors called at trial.
42. Section 23 of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995 governs the consideration of fresh evidence by this court. In its material parts section 23 reads:

"23.- (1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice-

a) …

b) …

c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to-

a) whether the evidence appears to the Court to be capable of belief;

b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject of the appeal; and

d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."

43. The respondent accepts that the evidence of Dr Somekh and Professor Taylor is capable of belief and would be admissible on an issue which is the subject of the appeal. However, the respondent submits that the evidence is neither likely to afford a ground for allowing the appeal nor that there is a reasonable explanation for the failure to adduce that evidence at trial. In view of these submissions we decided that we should consider the evidence of Dr Somekh and Professor Taylor de bene esse.
44. In R v Gilbert [2003] EWCA Crim 2385 the court reviewed a number of authorities which deal with the correct approach by this court when asked to receive evidence pursuant to section 23. Bishop was a case in which the defence of diminished responsibility was raised for the first time in a reference to the court by the Criminal Cases Review Commission. In Bishop the court considered authorities which dealt with appeals where diminished responsibility had been raised at trial and cases where this defence was raised for the first time on appeal. It is clear from the authorities that in each case this court will be reluctant to receive evidence in support of a defence which was not raised at trial. It is also clear that the court will look with some scepticism at evidence sought to be adduced on appeal in the case where the defence of diminished responsibility was litigated before the jury. But, having reviewed the authorities the court in Bishop concluded that ultimately the question for the court was whether it was expedient to receive the evidence in the interests of justice (see para 29).
45. In this case the defence was raised at trial; indeed it was the only defence raised at trial. The defence called three consultant forensic psychiatrists and two neuro-physcologists. Mr Pringle submits that in the circumstances there can be no room for this court to accede to the submission that the evidence of Dr Somekh and Professor Taylor is fresh evidence in any proper sense of that term; nor that it affords any ground of appeal. He submits that the issues raised in the evidence of Dr Somekh and Professor Taylor were all canvassed at trial and the defence was rejected by the jury.
46. Mr Pringle relies on a passage in the judgment of the court in R v Andrews [2003] EWCA Crim 2750 which reads:

"In Ahluwalia [1993] 96 Cr App R 133 this court at 142 emphasised the need for any available relevant evidence to be advanced at trial. The same applies to expert evidence sought to be relied upon in support of defences which are advanced at trial. In that case Lord Taylor CJ said that this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism. So we do (sic), at the same time acknowledging the expertise of those professionals who have only come into contact with appellant since her conviction. We do not exclude the possibility that a professional who comes late into the field in support of a defence which was advanced at trial may have something to say which requires this court to exercise its powers under section 23, but for the reasons we have given this is not such a case. Here, as in almost every case, there was room for only one trial, at which the appellant had a full and proper opportunity to put forward a defence."

47. Mr Thornton submits that this is one of those rare cases where the court can receive medical evidence obtained retrospectively. He relies on a number of factors supporting his submission that the evidence is properly fresh evidence and that it affords the appellant a ground of appeal.
48. We accept that, for reasons we shall explain briefly, in this case the evidence of Professor Taylor in her report and orally is such that we can receive it and that it affords the appellant a ground of appeal. At the time of the killing the appellant was still a very young man. Contemporaneous records show that doctors on both sides regarded him as immature for his age. In addition there was violence in his background. We further accept Mr Thornton's submission that the facts show that this was "no ordinary killing". We were impressed by the evidence given orally by Professor Taylor relating to the difficulty of diagnosing a personality disorder in a young man under the age of 18. We note that the respondent neither called nor sought to place before this court any written evidence putting in issue the evidence given by Professor Taylor. We are acutely conscious of the fact that Professor Taylor's evidence is based on a retrospective assessment of the appellant. However, unlike in Andrews the retrospective evidence is given by a doctor who treated the appellant for a number of years post-trial. In the circumstances, it seems to us that it is in the interests of justice that we should receive it.
49. The next question which we have asked ourselves is whether this evidence affords the appellant a ground of appeal.
50. The principles upon which this court should act when it has received fresh evidence are also not in dispute and are clearly set out in R v Pendleton [2001] 1 CAR. App. R. 34 by Lord Bingham of Cornhill (see in particular paras [18] and [19]. They were repeated by Lord Brown of Heaton-Under-Heywood in the Privy Council: Dial and Another v The state of Trinidad and Tobago [2005] 1 WLR 1660. In that case Lord Brown said (see paras [31] and [32] ):

"[31] In the board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ?by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict': R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762,[1974] AC 878 at 906, and affirmed by the House in R v Pendleton:

"While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]"

[32] That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730, [2002] All ER (D) 277 (Mar), and R v Ishtiaq Ahmed [2002] EWCA Crim 2781, [2002] All ER (D) 80 (Dec). It was neatly expressed by Judge LJ in R v Hakala, at [11], thus:

"However the safety of the appellant's conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe"

51. In the light of the above we have concluded that if this evidence were called at a trial of the appellant it might reasonably have affected the decision of the jury. In the circumstances this evidence provides another reason for concluding that the verdict of the jury was unsafe.

The outcome of the appeal and sentence

52. Before us Mr Thornton and Mr Pringle canvassed the issue of what the outcome should be if we concluded that the verdict of the jury was unsafe. Mr Thornton invited the court to quash the conviction for murder and substitute a verdict of guilty of manslaughter on the ground of diminished responsibility. In his skeleton argument Mr Pringle did not resist this submission. However, for good reason, during the course of the hearing Mr Pringle modified this concession to the extent that if the appellant succeeded on ground 2 the court should direct a re-trial. We say at once, in our judgment, this is not a case where the court should direct a re-trial. The appellant has already served the determinative element of 10 years set by the Home Secretary. We suspect that, with some encouragement from the court, the reason for the change of attitude by the respondent is that a re-trial might have provided the court at any subsequent trial with the option of passing an indeterminate sentence with a direction pursuant to s. 45 [A] of the Mental Health Act 1983. However we do not think that such a sentence would be available to the court on re-trial but, in any event, in our judgment in all the circumstances it would probably be an abuse of the process of the court to direct a re-trial solely for that purpose. For these reasons we refuse the application for a re-trial and direct that a verdict of guilty of manslaughter by reason of diminished responsibility be substituted.
53. Next, we have to consider sentence. Mr Pringle concedes that this court has no power to impose a sentence with a direction under s.45 [A]. This arises from the application in sections 3 and 4 of the Criminal Appeal Act 1968.
54. It seems clear from all the evidence that we have seen and heard that the appellant's condition, not only is susceptible of treatment, but has been demonstrated to be susceptible to treatment. We have evidence from Dr Somekh and Professor Taylor which demonstrates this fact. We have further been supplied with a medical report for the purposes of admission to hospital under section 37 of the Mental Health Act 1983 dated 22 March 2006. It is conceded by Mr Pringle that all the conditions of sections 37 and 41 of the Mental Health Act 1983 are satisfied for us to make a hospital order under s.37 and a restrictions order without limitation of time under s.41. We are quite satisfied that it is a proper case for us to make these orders. And accordingly the sentence of custody for life is quashed and for it these orders substituted. For these reasons this appeal is allowed.