Neutral Citation Number: [2009] EWCA Crim 1326
Case No: 200802636 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT LEEDS
T 20037108
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/07/2009
Before :

LORD JUSTICE KEENE
MRS JUSTICE DOBBS DBE
and
HH JUDGE STOKES QC, RECORDER OF NOTTINGHAM
(sitting as a Judge of the Court of Appeal Criminal Division) 

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Between :

	Holderness	Appellant	
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	The Queen	Respondent	

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Peter Weatherby (instructed by Switalskis Solicitors, Wakefield WF1 2TF) for the Appellant
Andrew Campbell QC (instructed by CPS, Bradford BD5 0QH ) for the Respondent

Hearing dates : Monday 29 June 2009
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Judgment

Lord Justice Keene : 
1.	On 29 September 2003 at Leeds Crown Court before His Honour Judge Taylor, the applicant was convicted of murder and was the following day sentenced to life imprisonment.  She now applies for an extension of time in which to seek leave to appeal against conviction and for leave to call fresh evidence, these matters having been referred to this court by the single judge.  We grant the extension of time and the application for leave and we treat this hearing as the hearing of her appeal.
2.	The victim of the killing was the appellant’s mother, a 70 year old woman, who was killed on the morning of 13 February 2003 some time after 9.15am.  There was no dispute at trial that she had been killed by the appellant, who had struck her repeatedly with a marble rolling pin in the hallway of the victim’s home.  The victim had been struck to the head, neck, chest and elsewhere.  Some of the injuries suffered seemed to be defensive in nature.  The appellant left the deceased’s house carrying a white plastic bag containing the top the appellant had been wearing, a hand towel, a face cloth and part of the rolling pin that had broken off.  All these items, and the clothing the appellant was wearing, had blood on them.
3.	The defence case was that she was only guilty of manslaughter, either by reason of provocation or because of diminished responsibility.  As we shall describe, expert psychiatric evidence was called on both sides at trial.  The jury, as we have indicated, rejected both defences.  Provocation is no longer an issue.  The fresh evidence which this court has received relates to the defence of diminished responsibility, available under section 2 of the Homicide Act 1957.  Under that provision it is for a defendant to prove, on the balance of probabilities, that at the relevant time he was 
“suffering from such abnormality of mind … as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”
4.	At trial evidence was called about psychiatric problems which the appellant had had in the past.  Beginning at least in 1993 when she was aged 33, she had from time to time suffered from symptoms of depression and had been treated accordingly.  She had had a number of problems in her personal life, beginning from when she had been a child but continuing into adulthood.  Amongst other things, she alleged that she had been sexually abused from the age of 9 by a number of men, including her father, with her mother’s knowledge and complicity.  Whether true or not, there is no doubt that she had had a persistent problem of alcohol abuse over many years, as she said at trial, as well as drug misuse.  Her evidence was that when she drank, she sometimes shouted and threatened people.  The jury heard how on 2 September 2002 she had been admitted for 5 days to the Priestley Psychiatric Unit of Dewsbury and District Hospital as an informal patient, having been arrested for trying to break into a house where she believed her missing daughter was.  At the time of admission she was noted as having a long history of alcohol and drug misuse.  The diagnosis was of mental and behavioural disorder due to psychoactive substance abuse.
5.	She was seen twice more after that in the out-patient clinic, the second time being on 8 October 2002, when she described feeling “knocked back” by her step-father dying suddenly the night before.  No psychotic phenomena were observed.  That was the last time she was seen by the psychiatric services before the killing of her mother on 13 February 2003.
6.	The evidence at trial about the circumstances surrounding the killing can be summarised very briefly.  Her own evidence was that she had been drinking with her daughter and others at a couple of pubs on the afternoon and evening of the 12 February and that she had drunk 10 bottles of alcohol, lager and alco-pops.  She accepted that by the time of leaving the second pub, at about 11pm, she was probably drunk.  She was seen a little later outside her mother’s house, shouting and banging on a window, and then she went home, where again she was heard shouting in the street.  One witness thought it sounded like someone drunk going home.  It went on for about an hour, and when a neighbour went round to see her, she said something which he thought sounded threatening.  He described her as appearing “not quite with it, not drunk but not right”.  She also went and knocked on another door and told the man who answered “You don’t go messing about with a kid’s sexuality”.  She came back about 15 minutes or so later, knocked again and swore at him, and then left.  She came back a quarter of an hour later and apologised, before being threatening.  He told her to go home and sleep it off.  He later told the police it seemed like an amphetamine psychosis rather than drunkenness.
7.	All this the jury heard, as it did evidence about her being seen the next day leaving her mother’s house at about mid-day carrying a white plastic carrier bag.  She seemed sober, though she told one couple who knew her that she and her daughter had been out on the piss the night before.  There is no dispute that, when she left her mother’s house, she was wearing her mother’s black leather jacket, having taken off her own blood-stained top.
8.	Her own evidence at trial was that she had gone to her mother’s house to ask why her mother kept bringing up the past.  They both stated screaming and shouting at each other and she told her mother that her father had never loved her mother.  Her mother slapped her face.  The appellant hit her mother.  She could not recall where she got the rolling pin from or the number of times she hit her mother.  In cross-examination she said she hit her mother because her life had become a nightmare and she killed her mother because she had been talking about her father and provoking her for years.
9.	The body of her mother was discovered the next morning, 14 February and the appellant was arrested a little after midday.  She was seen by a police surgeon, a GP, first, who was told by the appellant that she had been admitted to a psychiatric unit the previous year after a night’s heavy drinking.  The GP saw no signs of paranoia but only a mild depression, and concluded that the appellant was fit to be interviewed but could be vulnerable because of anxiety.  She was then seen by Doctor Radcliffe, a Consultant Psychiatrist, at about 4.20pm that day, 14 February.
10.	He was, therefore, the first psychiatrist to see the appellant after the killing.  He noted that her speech was normal in tone and flow and her answers appropriate to questions.  He observed no evidence of any thought disorder, describing her as clear and coherent, and orientated in time, place and person.  He saw no signs of major depressive symptoms or hypomania, that is, of even a mild degree of mania.  He recorded that 
“there was no evidence at interview of any abnormal beliefs or perceptions.”
11.	Doctor Radcliffe gave evidence at trial to this effect.  He went on to say that “if someone was suffering from a mental illness of moderate or severe form I think it would be very difficult for them to conceal it from a psychiatrist.  You can’t just perk yourself up from an illness of that kind as you can if you are suffering from a mild degree of depression.  I don’t think it’s possible to turn on and off a mental illness.”  However, he added that one could not extrapolate back and ascertain what her mental state was some 30 hours earlier when the killing had taken place.
12.	The appellant was then interviewed by the police with an appropriate adult present, as well as a solicitor.  At first she denied any involvement in her mother’s death.  Later, when she was confronted with bloodstained items found in the bag at her home, she lied and said she had cut her hands.  Then she said that she had found her mother cold and limp in her mother’s home and that she had got blood on her own clothes from picking her mother up.  That too was ultimately conceded to be a lie.
13.	On 17th February 2003, a registered mental nurse recorded the appellant as saying that she had heard her father’s voice since the time of his death, but that he never said anything derogatory.
14.	She was seen by another consultant psychiatrist, Doctor Berry, on 27 February 2003, that is two weeks after the killing.  She referred to symptoms of lack of sleeping and eating, feelings of hopelessness and wanting to die.  But she said these symptoms had come on after her arrest and not before.  Before her arrest she had been “doing alright”.  Doctor Berry found no abnormal beliefs, hallucinations or thought disorder.  He diagnosed the appellant as suffering from a depressive adjustment reaction, brought on by her arrest and remand into custody.  He found no evidence of any significant mood disorder prior to her arrest.  When Doctor Berry saw her again on 13 March, he found her lower in mood.  She realised that her mother was dead, she said.  He concluded that she was becoming more depressed “in the context of a grief reaction”. 
15.	The jury were told by the Judge that there was no dispute that after about 20 March the appellant then developed a severe depressive illness with psychotic features.  She began to speak of God being inside her and of making love to God, that God spoke to her, that the prison staff were all actors and of other delusions, and her behaviour became more bizarre and disordered.  She was, of course, remanded in custody through this time.  She spent some time on the prison hospital wing, where she was treated with anti-depressant medication, to which she responded sufficiently to be transferred out of that wing on 7 June 2003.  Thereafter she was seen by Doctor Rix, a consultant psychiatrist retained by the defence, on 16 July 2003, 19 August 2003 and 19 September 2003, and by Doctor Battacherjee, a consultant psychiatrist retained by the Crown, on 11 September 2003.  Both gave evidence at the trial later in September that year.  In brief, Doctor Rix concluded that at the time of the killing the appellant had psychotic symptoms which were part of a mental disorder that the jury might recognise as an abnormality of mind.  Taking all the symptoms together suggested that it might have been a very unusual type of depressive illness or a depressive illness mingled with a psychotic illness.  The efforts of the appellant to clear up the crime scene did not affect his conclusion. 
16.	He acknowledged that the appellant had not made mention of any delusions when examined by Dr Radcliffe and that she had told that psychiatrist that she had not had any depressive symptoms at the time of the killing, but he said that she may have been keeping her delusions to herself and may have thought of being in a low mood as the norm.  In cross-examination, he agreed that there was no evidence of psychotic symptoms when she was sober, until after her arrest and being charged with her mother’s murder.
17.	Doctor Bhattacherjee accepted that the appellant had developed a severe depressive illness with psychotic features while on remand in custody, but he ascribed that to her distress at her arrest and remand and to grief at the loss of her mother.  Her behaviour the night before the killing was consistent with someone who had had a lot to drink.  He accepted that she had predisposing factors making her vulnerable to the development of a severe depressive illness, but he could see no evidence of an abnormality of mind at the time of the killing.  It is implicit in what we have said that by the time of trial there was no dispute that the appellant was fit to stand trial.
18.	We have taken a little time over dealing with this material which was before the jury, because it provides the context in which the fresh evidence put before us has to be judged.  All the evidence, factual and expert, to which we have so far referred was before the jury.  We turn then to the new material.
19.	Some of the new material consists of undisputed facts about events since her conviction and sentence.  She was sentenced to life imprisonment and no question of any order under the Mental Health Act 1983 was even raised.  She seems to have coped reasonably well with custody until about August 2004, when she experienced a manic episode.  She had been receiving anti-depressant treatment, but that had been progressively reduced.  On 21 December 2004 she was transferred to Newton Lodge Regional Secure Unit for psychiatric treatment.  Her Responsible Medical Officer (“RMO”) was Doctor Isaura Gairin, a consultant psychiatrist, whose report dated 13 July 2007 is before this court and is not in dispute.
20.	Her report indicates that the appellant’s admission to Newton Lodge was because of suspicion of a mental illness, probably bipolar affective disorder, and that indeed was the diagnosis eventually arrived at and for which the appellant then received treatment.  Typically, that disorder consists of alternating manic and depressive episodes separated by periods of normal mood, but in the appellant’s case the manic and depressive symptoms seemed to occur at the same time, suggesting a diagnosis of Mixed Bipolar Affective Disorder.  Doctor Gairin felt that it was inappropriate for her to comment on whether the appellant was ill at the time of the offence.
21.	While the appellant was in Newton Lodge, she was seen by another consultant psychiatrist, Doctor Green, retained on her behalf, on 3 and 10 September 2006 and in March 2007.  Doctor Rix saw her again on 8 February 2008 and Dr Bhattacherjee on 7 November 2008.  All three psychiatrists have submitted reports and given oral evidence before us.  We would add for completeness that the appellant left Newton Lodge in April this year and returned to the prison system, as her condition had stabilised.
22.	There is a certain amount of agreement amongst these experts, and we are grateful to them for having met and narrowed the issue somewhat.  Amongst what is agreed is the following:
“1. Ms Holderness had a predisposition to the development of a mental disorder which pre-dated the index offence.
2. Ms Holderness has a history of treatment by Psychiatric Services including an admission to hospital in 2002.
3. When Ms Holderness was a remand prisoner in relation to the index offence she became psychotic.  By trial her condition had stabilized and she was asymptomatic.  Post-conviction, Ms Holderness was transferred to the Yorkshire Centre for Forensic Psychiatry (Newton Lodge), after she became psychotic again.  She remains in Newton Lodge regional secure unit.
4. Ms Holderness was stable when we assessed her.
5. Whilst in Newton Lodge. Ms Holderness has been diagnosed as having a bipolar affective disorder (BPAD).  It is arguable that the correct diagnosis is one of schizoaffective disorder, however any distinction, in the forensic context, is not significant.  These conditions are severe mental illnesses.
6. The account Ms Holderness has given of sexual abuse in childhood could be:
(a) real;
(b) delusional;
(c) a mixture of the two; or
(d) fabricated.
Her presentation is consistent with someone who has suffered such trauma.
7. She has a significant history of alcohol misuse and some history of other substance misuse.”
23.	We turn to the evidence of the individual witnesses.  
24.	Dr Rix has observed in his report of February 2008that “the appellant is now more forthcoming” about her history prior to the killing of her mother.  She told him in the more recent interview how, after discharge from the Priestley Unit in September 2002 she had thought that people were warning others that she was coming into Dewsbury.  Once in the period before Christmas she had thought that people could listen to her thoughts.  She thought that her drinking water was contaminated, that she was related to the Queen and worth millions, and that people were looking at her in a sexual way.  She told Doctor Rix that at the time of the killing she believed that her father was living in her body, and that she heard voices in her head telling her to kill her mother.  These are merely some instances of her revelations.
25.	Doctor Rix explored with her why she had not mentioned these things before trial.  She said that she thought that if she proved she was well, “they would let her go”.  In cross-examination, he accepted that she had not expressed abnormal thoughts or beliefs to him before trial, save for a reference to feeling that someone was in her body.  Otherwise there had been no evidence of psychotic symptoms when she was sober around the time of the killing.
26.	Doctor Rix regards her reasons for the absence of earlier disclosures as credible and her account as having the “hallmarks of genuineness”, though he acknowledges the possibility that she is fabricating.  He regards her account as being too sophisticated to be fabricated.  Moreover, patients vary in their recall of experiences, sometimes recalling delusions recorded at any earlier date but denied at an intermediate time.  That may happen, even when they have recovered.  The memories may not be accessible to such a person.  However, Doctor Rix accepted that the killing itself may have triggered or exacerbated her mental illness.
27.	On the basis of what she has now revealed about her mental state prior to the killing and of her subsequent psychiatric condition, he is of the view that she was suffering from a serious psychiatric illness before, during and after the offence.  What has happened since has strengthened the opinion he expressed at trial.  However, Doctor Rix accepts that the appellant’s credibility is crucial to his conclusions and that she had originally lied to him about the circumstances of the killing, as she had to the police and to Doctor Hargreaves, who had been retained on her behalf.  He also acknowledges that she made no reference in her own evidence at trial to having had any delusions at or before the time of the killing.  And he conceded that, if she had been mentally ill at that time, she would have been likely to have exhibited disordered symptoms to Doctor Radcliffe.  
28.	When interviewed by
Doctor Green in September 2006, the appellant told him that she had heard voices for most of her adult life, especially female voices giving her instructions or threatening her.  She said that after discharge from the Priestley Unit, the voices would tell her to hit her mother as punishment for letting her be sexually abused as a child, and that these experiences went on up to the time of the offence.  She produced a piece of paper listing some of the delusions she said she had had during this period, including (in addition) the belief that she was related to a raptor because of her feet and that she was related to the Royal Family and worth millions.  When asked why she had not said this to any of the psychiatrists pre-trial, she said she thought they might let her go if she was well.
In his second report, dated March 2007, Doctor Green observes that:
“The issue as to whether Ms Holderness was suffering from a major mental illness at the time of the index offence is dependent upon the interpretation of the account that Ms Holderness now gives of her psychotic symptoms (including hallucinations and delusions) predating her index offence.”
His opinion, as expressed to this court, is that, on balance, she is not fabricating her account of hallucinations, but that it is unclear whether she was in fact delusional at the time of the offence or is now projecting back delusional memories, or a mixture of the two.
29.	Doctor Green acknowledged that the appellant did not bring to the attention of the various psychiatrists who saw her on remand the symptoms which she now says she had before the offence, and also that there is little evidence from medical records of her having reported earlier psychotic symptoms during that period.  But he told the court that the explanation she gave for her failure on remand to recall her earlier delusions, while not making much sense, may itself be symptomatic of her mental illness.  He accepted that there was no evidence from those who had been with her drinking on the day and evening before the killing that she had shown any disturbed behaviour.  He also agreed that Doctor Radcliffe had had the advantage of seeing the appellant before the offence and yet had not discerned any signs of psychosis after the offence on 14 February 2003.  Doctor Green acknowledged that, while it was not impossible for an experienced psychiatrist to miss such signs, it was more likely that he would discern them if they were present.
30.	Doctor Bhattacherjee, called before us by the prosecution, conceded that the symptoms identified at the time of the admission of the appellant to the Priestley Unit in 2002 could be consistent with mental illness, as could her behaviour on the night of the killing, as observed by neighbours, though it was also consistent with drunkenness.  But he made the point that the admission to the Priestley Unit and the symptoms then noted in no way resemble the psychotic episodes she has experienced in custody.  He accepted that matricide is rare and that this was a sustained attack.  But he remains of the opinion he expressed at trial.
31.	He is sceptical about the new account given by the appellant of the delusions said to have been suffered by her before the offence, and he emphasised the difficulty a patient would have in concealing such abnormal perceptions.  The symptoms now described indicate an extremely severe and florid episode of psychosis, with very intense and wide-ranging delusions.  There were grandiose and bizarre delusions.  There were auditory hallucinations, obsessive features, and delusions of thought control, all indicating a very grave state of disturbance.  In Doctor Bhattacherjee’s opinion it is very unlikely that such extreme symptoms would not have been manifest.  Yet not merely had she not mentioned these to him when she was interviewed by him shortly before trial, but she did not do so at the time when she was disclosing some symptoms while on remand.  She would not during that episode have been able to conceal other abnormal perceptions, because all would have seemed normal and real to her.
32.	We announced at the conclusion of the evidence and submissions that we proposed to dismiss the appeal, and we now explain our reasons for doing so.  This is a case where there is undoubtedly fresh evidence available, if only to the extent that the appellant has experienced another episode of severe mental illness since her conviction, either bipolar affective disorder or a schizoaffective disorder.  That followed on from her earlier episode while on remand.  The real issue is what her condition was at the time of the killing.
33.	Both Doctor Rix and Doctor Green are of the opinion that, on balance, she was at that time suffering from an abnormality of mind within the meaning of section 2.  But as Doctor Rix and Doctor Green acknowledged, that is an opinion crucially dependent on the account she now gives of her delusions and other psychotic symptoms as they were before and at the time of the killing.  Even though both those psychiatrists refer to other evidence, such as the nature of the killing itself, a frenzied attack on the appellant’s mother, her credibility is clearly fundamental.
34.	That credibility is inevitably damaged by the series of lies which she told after the killing, not only to the police and others in authority, but to both the psychiatrists retained on her own behalf – first Doctor Hargreaves and then Doctor Rix.  She persisted in those lies for some time, for over 5 months.  
35.	Then one has to consider the explanation for not having referred to her delusions, the voices and so on, in the period leading up to trial and at trial itself.  Her main explanation was that she thought that if she seemed well, “they” would let her go.  But the trouble with that is that by the time of trial, she could have been under no illusion about the chances of being “let go”.  She was by then free of symptoms and fit to stand trial.  She must have been aware that seeming well was not going to get her off the charge of murder.
36.	We can accept that there can be some instances where there is a failure on the part of a person with the appellant’s problems to be able to recollect earlier delusions.  That cannot be ruled out as a possibility.  But that was not the explanation proffered by the appellant for her failure to disclose earlier these delusions said to have existed at around the time of the killing, and it seems to us to be less than probable in the circumstances of this case.
37.	Moreover, one has to bear in mind that she had had ample opportunity since conviction to mix with other mental patients and to observe their delusions and other experiences.  As Doctor Rix fairly acknowledged, one cannot discount the possibility that that is how she has come by this knowledge of various delusions.
38.	In addition to the doubts which there must be about the reliability of the accounts she now gives of pre-offence delusions, there is the great difficulty faced by the appellant that an experienced psychiatrist, Doctor Radcliffe who saw her the day after the killing saw no psychotic features.  He was the first consultant psychiatrist to examine her after the offence, seeing her at 4.20 pm the next day.  While he agreed at trial that one could not extrapolate back from that to the previous morning, his evidence was also that one cannot just turn a severe mental illness off and on.  In any event, both Doctor Rix and Doctor Green have accepted that, if the appellant had been mentally ill at that time, she is likely to have exhibited disordered symptoms to Doctor Radcliffe on that occasion.  The fact that she might have managed to conceal them, which Doctor Bhattachejee disputes anyway, would not suffice to enable the appellant to discharge the civil burden of proof resting upon her.  We attach significance to the absence of observable symptoms of psychosis when seen by Doctor Radcliffe so soon after the killing.  
39.	It seems to this court that, while the appellant was, at the time of the offence, predisposed to develop a mental disorder, it is more likely that it was the impact of the killing, the arrest and the incarceration of her that brought about the serious mental illness which she subsequently experienced.  Certainly on the balance of probabilities it has not been shown that she was suffering from an abnormality of mind within the meaning of section 2 at the time of the killing.  
40.	Mr Weatherby on behalf of the appellant has referred to the well- known decision in Pendleton [2002] 1 CAR 34 and to the need for this court to remember that it must not usurp the role of the jury.  We bear that in mind.  The test in the present appeal is whether a jury might reasonably have found the defence to have proved on the balance of probabilities that the accused had been suffering from such an abnormality of mind as substantially impaired her mental responsibility for the killing.  But as was later pointed out in Dial [2005] 1 WLR 1660, it is for this court to apply its mind to the effect of the fresh evidence on the safety of the conviction.  It is, as Lord Brown of Eaton-under-Heywood said there at paragraph 31, for this court to evaluate the importance of the fresh evidence in the context of the remainder of the evidence:
“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.”
41.	That approach needs, of course, some slight adaptation when the burden of proof rests on the accused, but the real point is that it is for this court to decide whether, in the light of the fresh evidence, the conviction is unsafe.
42.	In the present case we are quite satisfied that the appellant has failed to show, on the balance of probabilities, that the section 2 criteria are satisfied, taking into account both the original evidence at trial and the fresh evidence.  No jury might reasonably have found that that burden of proof had been discharged.  For those reasons we dismissed this appeal.