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KEVAN BORTHWICK, R v. [1998] EWCA Crim 1632 (18th May, 1998)
No:
9607084/X5
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
The
Strand
London
WC2
Monday
18th May 1998
B E F O R E :
LORD
JUSTICE WALLER
MR
JUSTICE SMEDLEY
and
MR
JUSTICE SULLIVAN
- - - - - - - - - - - -
R E G I N A
- v -
KEVAN
BORTHWICK
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MR
J SAUNDERS QC
appeared on behalf of the Appellant
MR
C TREACY QC
appeared on behalf of the Crown
- - - - - - - - - - - -
JUDGMENT
(
As
Approved by the Court
)
- - - - - - - - - - - -
Crown Copyright
Monday
18th May 1998
LORD
JUSTICE WALLER: On 25th October 1997 this Court, at that stage composed of
myself, Owen J and Sullivan J, adjourned this appeal to enable further
psychiatric enquiries to be pursued. The judgment of the Court on that occasion
set out fully the facts and provides the reasons why it was thought right to
adjourn the matter on that occasion. It is unnecessary to do more than refer to
that judgment and outline the position, very briefly, for the purposes of
giving the final ruling on this appeal.
The appellant had been convicted of murder. His defence had been that he
was not responsible in any way for the deceased's death. No defence of
diminished responsibility was run in the alternative or at all. Following the
conviction, the psychiatrist who had examined the appellant prior to the trial,
that is a Dr Bond, re-examined the appellant. During this interview the
appellant accepted responsibility for the killing and Dr Bond came to the
conclusion that it was strongly arguable that the appellant was suffering from
an abnormality of mind at the time of the killing. It was also clearly arguable
that the appellant's mental responsibility for his acts were substantially
impaired at the time of the killing but Dr Bond said that that was a matter
for the jury.
Prior to the previous hearing, the Crown also consulted a psychiatrist, a
Dr Kennedy. Dr Kennedy produced a report which, if anything, was rather
stronger, so far as the appellant's case was concerned in relation to
establishing that he suffered from an abnormality of the mind at the time of
the killing. But Dr Kennedy also expressed the view that it was a matter for
the jury as to whether that abnormality of mind substantially impaired the
appellant's responsibility.
On that last occasion, the Court was concerned about two factors and ruled
that the evidence of the psychiatrists should be admitted at that stage, but
thought that further reports should be obtained from the psychiatrists. The
Court was of the view that the psychiatrists could be of more assistance in
giving opinions as to the impairment of responsibility. The Court was also of
the view that it was of materiality to the question as to whether the appeal
should be allowed, whether the appellant's mental faculties had in any way
prevented him giving rational instructions as to his defence at his trial.
What was said on that last occasion was this:
"But
equally, if there was overwhelming or clear evidence to demonstrate that a
defence of diminished responsibility would have succeeded and there was clear
evidence that the mental illness itself was a cause of a decision taken to run
such defences as were run, or putting it another way not to run the defence of
diminished responsibility, then the interests of justice would seem to require
probably the substitution of a verdict of manslaughter but at least to order a
retrial."
So the matter was adjourned on that last occasion to give the psychiatrists
a further opportunity to consider the position, and both be available to give
evidence, if necessary, on the appeal.
The position as at today's date, this resumed hearing, is that two further
reports have been produced, again one from Dr Bond and one from Dr Kennedy. Mr
Saunders has read out and has opened today the material parts of the opinions
expressed by those two doctors. It is clear from the opinions expressed by both
of them that the abnormality of mind from which the appellant suffered did
substantially impair his mental responsibility as at the time of the killing.
It is also clear, from both opinions, that the abnormality of mind also
impaired the appellant's ability to give rational instructions. He, in their
view, would have been likely to be very suspicious of the psychiatrists who
were seeing him and of his legal advisers, and that may well have been the
reason why he ran the defence that he did, which was that he had no
responsibility at all.
The evidence indeed is so powerful on this occasion that the Crown accept
that, provided of course this Court approves, that the appropriate course in
this case is for there to be a substitution for the verdict of guilty of
murder, a verdict of guilty of manslaughter.
We have no doubt that, in the light of the two reports of Dr Kennedy and
Dr Bond, it is appropriate that there should be a substitution. In those
circumstances, the appeal must be allowed, and a verdict of manslaughter
substituted for that of murder.
As regards sentence, the position of course was that for the offence of
murder, a life sentence was mandatory, and there was a recommendation that the
appellant should serve at least 18 years. That recommendation was not
challenged on appeal, no doubt because of the circumstances of the killing, and
the danger that the appellant posed.
On this occasion, of course, the matter is very different. It must,
first, be said that neither psychiatrist has been able to recommend a hospital
order. The reason for that is that at the present stage it is felt that the
appellant is not susceptible to treatment. The position though, of course,
also is that the appellant does still pose a very real danger. In those
circumstances, the only course we feel open to this Court is to impose a life
sentence, which will mean that the appellant cannot be released while he poses
that threat.
We then have to consider what recommendation should be made. The exercise
we must go through is as follows. Having passed the life sentence which deals
with the very serious danger that the appellant is, we must now go through the
exercise of considering what determinant sentence might have been passed on a
finding of manslaughter on the grounds of diminished responsibility. The
position, of course, is that the culpability for this offence, having regard to
the mental impairment, must reduce the responsibility. In our view, the
appropriate sentence, if one was passing a determinate sentence would have been
one of 8 years.
It follows that, in our view, the period that the appellant must serve
before he can apply for parole should be calculated by reference to that
determinate sentence. In our judgment, the appropriate period is one of 5
years. We accordingly substitute a sentence of life imprisonment, but with a
recommendation that 5 years be served prior to any right to apply for parole.
We, of course, emphasise, so that there is no misunderstanding, that the
appellant will be detained well after that period of 5 years, if he is not safe
to be released. We feel it is also right to say that the stage may come when
the Home Secretary feels it is sensible to have the appellant transferred to a
hospital. Nothing we have said should prevent that course being taken.
In those circumstances, this appeal is allowed and the sentence becomes
that which we have indicated.
© 1998 Crown Copyright
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