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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 >> Diamond, R v [2008] EWCA Crim 923 (29 April 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/923.html Cite as: [2008] EWCA Crim 923, [2008] MHLR 124

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THECROWN COURT AT PRESTON
MR JUSTICE DOUGLAS BROWN
T980712
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER S.9 OF THE CRIMINAL APPEAL ACT 1995

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/04/2008

Lord Justice Thomas:

Introduction

1. On 28/29 December 1997 the deceased, a 17 year old who had moved to the Blackpool area, was murdered, his body dismembered and placed in the swill bin of a hotel, with the exception of the head which has never been found.
2. Some days later, forensic tests were carried out at the appellant's flat and the communal bathroom that was used within the building. Bloodstains and traces of blood were found which were those of the deceased, as well as a fingerprint of the appellant in some of that blood. It is clear that the appellant had a long history of psychiatric problems; 6 months before the killing, whilst in custody for another offence, he had been diagnosed as having a personality disorder amounting to a psychopathic disorder, but not as suffering from a mental illness. On his release on licence three months later, after serving that sentence, the police sent a circular to all officers notifying them of his dangerousness.
3. The appellant was arrested and charged with the murder on 10 January 1998 and remanded into custody. Two recommendations were made to him that he be assessed at Ashworth Hospital to see if he was also suffering from a mental illness in addition to the personality disorder. One of the reports containing this recommendation was provided to the prosecution and to the court. He refused to undergo that assessment and refused to allow his defence team to consider putting forward the defence of diminished responsibility. Instead, he instructed the team to conduct the defence on the basis that he had not committed the murder. He gave evidence that he had lent the key to his flat to a friend, Spence; he said that he came back to the flat, saw the blood, panicked and decided to clean it up.
4. He was tried before Douglas Brown J and a jury at the Crown Court in Preston in January 1999; his defence was rejected and he was convicted of murder. He was sentenced to life imprisonment; the judge made it clear that the appellant was extremely dangerous and recommended a tariff of 20 years. He was later diagnosed as suffering from the mental illness of paranoid schizophrenia.
5. As we will set out in more detail, he appealed to this court in 2000. After an unsuccessful attempt was made by a new team of lawyers to advise him to advance a case on the basis that he admitted the killing and should have been convicted of manslaughter on the basis of diminished responsibility, permission to appeal was refused in 2003. He took his case to the Criminal Cases Review Commission in 2005. In November 2006 his conviction was referred to this court by the Commission on the basis that (i) he had admitted to killing the victim; (ii) there was strong evidence that his responsibility for the killing was substantially impaired by an abnormality of mind; (iii) that his mental capacity was significantly impaired by his mental illness at the time he gave his instructions to his defence team and (iv) this court should now substitute a verdict of manslaughter for that of murder.
6. He continues to admit the killing; the psychiatric evidence is clear that he now has the capability to do so and the appeal has proceeded on that basis.

The issue

7. Some 10 years after the killing, this appeal raises the question therefore as to whether the court should admit fresh evidence under s.23 of the Criminal Appeal Act 1968 in relation to his mental state at the time he committed the killing and in the period up to the verdict in the trial, both as to the issue of (1) whether his mental state was such that he was not properly capable of giving instructions to his legal team at trial and (2) whether he was suffering from an abnormality of mind that substantially impaired his responsibility for the killing.
8. As this issue arises in circumstances where prior to the killing the appellant had an extensive psychiatric history, it is necessary to begin by setting this out. The history is important to an understanding of the position in 1998 and was relied on by the psychiatrists who gave evidence to us.

The psychiatric history of the appellant

9. The appellant was born in January 1978 in Ireland and shortly thereafter he moved with his parents in Scotland. His father was a man with a violent temper and with paranoid and obsessional traits. He was 4 when his parents separated; he returned to Ireland with his mother and lived there until he was 12.

i) As a result of severe temper tantrums when he was a child, he was seen by the family GP in Scotland. After his return to Ireland, as a result of an incident, he was referred by a GP to a child psychiatrist who saw him regularly between 1982 and 1985 and diagnosed him as suffering from a marked conduct disorder with aggressive behaviour as the main feature. At school there were behaviour problems and he was admitted for further assessment to St Stephen's Hospital in the summer of 1984. Although he was discharged from psychiatric care, his behaviour at school became more violent and disruptive; he became involved in burglary, stealing and drinking; he started writing about wanting to kill his mother. His mother had stated that he told her that he had heard the devil talking to him. He was asked to leave school when he was 12 and it was decided to send him to Blackpool to live with his father and step mother.

ii) By the age of 14 his behaviour had again deteriorated. He was asked to leave school and ran away back to Ireland to his grandparents. There he robbed a post office and people in the street at knifepoint. He was cautioned and returned to Blackpool.

iii) In June 1993 he attacked his stepmother and then set off with his father's air pistol to see his mother whom he threatened to kill. He was charged with affray; he was given a 12 month conditional discharge and placed in Fylde Community Home.

iv) In 1993 when at the Fylde Community Home, he attacked another resident who had bullied him, inflicting with a knife wounds to his head which required about 100 stitches. He was charged with wounding with intent.

v) He was assessed in 1993 at the Special Regional Forensic Adolescent Psychiatry Unit at Prestwich Hospital by Dr Shortall as having a long history of behavioural difficulties with an escalation of levels of violence. He was not suffering from any psychiatric illness.

vi) He was in due course convicted and sentenced to 2½ years in a Young Offenders Institution for the offence of wounding. The course of his remand and sentence for that offence was very troubled; attempts to keep him in children's homes and a secure care facility failed because of threats and assaults, including assaults with knives and screwdrivers, he made against others. He was held on remand at Lancaster Farms and Deerbolt Young Offenders Institutions. The records set out a catalogue of violence and threats; there were 30 adjudications. He was released in May 1995.

vii) He was then at liberty for a short period of just over 2 months characterised by further violence before his next arrest in July 2005 for stabbing a fellow resident at a hostel with a knife. He was charged with wounding with intent and was remanded to Lancaster Farms; during that period of remand there was again violent and abusive behaviour and unprovoked assaults. At his trial on the charge of wounding with intent he advanced the defence of self defence; he was acquitted on 22 February 1996 after 8 months in custody.

viii) His period at liberty between February and June 1996 was spent at a hotel where there were threatening and abusive incidents; he saw his GP three times and was due to see a physiatrist, but before he did so he was arrested again.

ix) On 21 June 1996 the appellant was arrested and charged with attempted rape, indecent assault, false imprisonment, theft, and intimidating a witness. Whilst on remand (though he was on bail for a short period), he threatened to kill other prisoners and made a serious assault on one; the officers considered he was like a time bomb. He was seen by Dr Jennifer Shaw, a consultant forensic psychiatrist, several times; in a report prepared for the court dated 14 October 1996, she recorded that he told her he thought he was possessed by the devil, that he had fantasised about killing someone and cutting them up and that he thought he would kill someone one day. She concluded that he had no signs of depression or psychosis, but had a long standing personality disorder, which would amount to a diagnosis of psychopathic disorder within the meaning of the Mental Health Act; she had contacted Ashworth who were prepared to consider an assessment if he was convicted. In late October 1996 the appellant was also acquitted of these offences, but he has since admitted whilst at Ashworth, that he committed these offences.

x) He was at liberty for just under 2 months; he returned to Blackpool; each time he went out he carried a knife.

xi) On 14 December 1996 he was arrested after stabbing another youth, claiming he had again done so in self defence. The victim required 10 stitches to the head. Whilst on remand he was again violent and abusive. He was assessed again by Dr Shaw; she was extremely concerned at the danger he presented to the public. She discussed with him a referral to Ashworth, but he decided that he would not undergo the referral. In a report dated 20 June 1997 she diagnosed the appellant as having a personality disorder which amounted to a psychopathic disorder within the meaning of the Mental Health Act 1983; she could not recommend a medical disposal as he was not motivated to undergo treatment, but stated that he had significant personality problems and the risk of him offending violently in the future was extremely high. She found no evidence of mental illness. On 7 July 1997 the appellant was sentenced to 18 months imprisonment in a young offenders' institution.

xii) He was released on 3 October 1997 on licence; immediately prior to his release the police circulated a leaflet to all local officers warning of his dangerousness.

xiii) Just under 3 months later on 28/9 December 1997 he committed the killing which is the subject of this appeal. During his period at liberty he sought treatment from his GP for depression and paranoia; there were incidents where he threatened people.

The contemporaneous actions after his arrest for the murder

10. He was arrested and charged with murder on 10 January 1998, as we have stated, and remanded to HMP Manchester as a category A prisoner.

i) On 9 February 1998 he told Dr Holloway, a consultant forensic psychiatrist, that he believed he had been possessed by the devil since the age of 10 and had been hearing voices for a few years. He was prescribed anti-psychotic drugs. 14 days later he told her more about the devil entering his body. He subsequently refused to see her.

ii) Prior to May 1998 his solicitors had doubts about his mental condition and his fitness to plead; in instructions to counsel for the plea and directions hearing on 21 May 1998 the solicitor's representative recorded those doubts on the basis that the appellant was refusing to give instructions and claiming to be possessed by the devil.

iii) By the time of the writing of the note for the plea and directions hearing on 21 May 1998 the appellant appeared to the solicitors to be lucid and capable of understanding the nature of the charge against him. Counsel was asked to consider whether enquiries should be made of an independent psychiatrist with a view to assessing the appellant's mental state.

iv) On 7 May 1998 the clinical director of HMP Manchester had in fact asked for an assessment of his suitability for admission to Ashworth, as he considered that the appellant had a psychopathic disorder with hints of a co-existing mental illness in the form of a delusional disorder.

v) That assessment was carried out by Dr Coorey, a consultant forensic psychiatrist at Ashworth Hospital, on 5 June 1998. The appellant told him he intended to plead not guilty. After the assessment Dr Coorey contacted the CPS for information to arrange for the appellant's admission to Ashworth; he recorded that they were not helpful. In a report dated 8 June 1998, Dr Coorey observed:

"In addition to his paranoid ideas, [the appellant] has fantasised for a long time about killing people, more particularly police officers. He has expressed a wish in the past to seek help for his problems and although he retracted later, he expressed a similar wish at our recent interview. Given the long-standing nature of his psychiatric problems and the serious crime that he is charged with, the issue of a psychiatric defence is bound to arise"

He concluded that there was reason to suspect that the appellant had long-standing severe personality difficulties and there were also indications he was suffering from a mental illness of a paranoid nature within the meaning of the Mental Health Act 1983. Given that the problems had led to numerous previous violent attacks on others, Dr Coorey concluded that it was imperative that the appellant be moved to Ashworth Hospital under s.35 of the Mental Health Act so that his condition could be assessed in greater detail.

vi) On 9 June Dr Coorey wrote to the Court, with a copy to the appellant's solicitors and to the CPS, enclosing his report of 8 June 1998 and stating that the admissions panel at Ashworth would consider whether a place could be offered on 16 June. After the admissions panel had agreed to provide a place, Dr Coorey submitted a further report to the court dated 16 June 1998 seeking the admission of the appellant under s.35, as a bed was available after 10 July 1998. In it he stated that his opinion was that

"there is reason to suspect that this patient is suffering from mental illness, psychopathic disorder, mental impairment or severe mental impairment within the meaning of the Mental Health Act 1983 and it would be appropriate for the patient's mental condition to be assessed in greater detail by the staff of a hospital."

He re-stated his conclusion set out in his report of 8 June 1998.

vii) Although we have asked that extensive enquires be made, at this point in time full records are not available. It is clear, however, that the appellant gave instructions to his legal team at this time that he would not go to Ashworth; the CPS also made clear on 8 July 1998 that they opposed admission to Ashworth and declined to supply the prosecution papers to Ashworth.

viii) On enquiry by the court on 16 July 1998 the CPS and defence made it clear that neither wished to apply for a s.35 Order. The court therefore decided that an application for such an order would not be listed and so no order to transfer was made.

ix) On 1 September 1998 the appellant was seen by Dr P R Snowden, a consultant forensic psychiatrist and at the time the Clinical Director of Ashworth, at the request of the appellant's then solicitors. Dr Snowden gave evidence to us at the hearing of this appeal. In 1998, the appellant denied fantasies of killing and harming people and hearing voices; Dr Snowden was, as he reported on 11 September 1998, unable to identify any symptoms of mental illness, though he noted that Dr Holloway and Dr Coorey had both formed the view there was some evidence of a mental illness. It was unclear to him whether they were true accounts of psychotic symptoms. He concluded that there was no doubt that the appellant was unusual and he probably had personality difficulties which might amount to a personality disorder and he might in addition have a mental illness. He continued:

"The only way for his mental state to be assessed properly is for him to be transferred to a secure hospital environment. During such an assessment, it should become clearer in psychiatric terms, whether he suffers from a mental disorder and to what degree. It should be possible to comment upon abnormality of mind, so that if necessary a defence of diminished responsibility can be properly considered if it proves to be an issue in this case … I therefore strongly support the approach taken by all of the psychiatrists in this case … I am aware that his case was considered by the Ashworth Hospital Admission Panel, who offered a bed when one is available. I understand from those instructing me that this possible transfer has not been pursued. I would strongly urge those who instruct me to reconsider this case. I think that it is essential that [the appellant] is properly assessed. The nature of this case is such that I believe it important that the right decisions are made and it is impossible for this to occur whilst there is still uncertainty about the nature of his mental condition."

Dr Snowden concluded that he was fit to plead in accordance with the legal requirement for fitness to plead.

x) In the light of the reports, the solicitors, leading counsel and junior counsel then representing the appellant advised the appellant that a defence of diminished responsibility was open to him and advised that undergoing a full psychiatric assessment would be in his best interests.

xi) In early December 1998 the appellant, however, again made clear that he refused to countenance this, as it would carry with it an admission that he had been responsible for the death of the victim. He also made it clear that he would not go to Ashworth; he was deeply suspicious of such places and wished to remain in prison, despite being advised that it might be in his best interests to go to Ashworth. He was confident that he would be successful in his defence.

xii) His legal team considered that the appellant was fit to plead and was clear and adamant in his instructions that he did not kill the victim; during the trial he gave firm and lucid instructions. In the light of his refusal to go to Ashworth Hospital, the defence was thereafter conducted on the basis we have set out.

xiii) On 3 December 1998 the CPS, who were informed of the position by the defence, asked a consultant forensic psychiatrist to complete a report for the court in accordance with the practice then obtaining (see paragraph 51 below); copies of the psychiatric reports that the CPS had were sent; it was noted that the appellant might refuse to see him. The appellant did refuse.

xiv) A the end of December 1998 and prior to the commencement of the trial the Clinical Director of HMP Manchester asked Dr Holloway, in the event of the appellant's acquittal (as the appellant and others considered that the case against him might not be strong enough to secure a conviction) to put in place as a contingency arrangement for psychiatric treatment which the appellant had by then said he was willing to undertake. He followed this up with a further letter on 13 January 1999 to Dr Shaw; in that letter, he stated:

"Clinically I do not believe at present that [the appellant] suffers from a major mental illness, despite suspicions that he may initially have been suffering from some psychotic symptoms. Currently I would assess him as having a mild depressive disorder. [The appellant's] personality disorder is well documented."

xv) As we have stated the appellant gave evidence to the jury on 15 January 1999.

The appellant's admission to Ashworth

11. After his conviction he was held initially within the prison system.

i) At HMP Manchester a violent incident took place and he sought blades to cut officers up.

ii) He was seen on 23 March 1999 by Dr Coorey at HMP Wakefield; Dr Coorey concluded that he had long standing and severe personality difficulties and there were strong indications that he was suffering from a paranoid psychotic illness, probably of a schizophrenic type. He considered that the appellant had probably been able to exert sufficient control over his psychotic experiences whilst awaiting trial, but since the conviction there had been a rapid decline. He recommended admission to Ashworth for further assessment and treatment of his personality problems, as he believed that the appellant was motivated to seek help. He advised that the appellant be categorised as mentally ill as well as psychopathically disordered.

12. The appellant was admitted to Ashworth on 9 June 1999 by order of the Secretary of State under ss.47 and 49 of the Mental Health Act 1983. He remains there.

i) He had spent the previous 18 months segregated and was considered a very high risk. He was initially hostile and his mental state fluctuated. He maintained his innocence and considered his appeal was being thwarted.

ii) In September 2000 Dr James Collins, a consultant forensic psychiatrist, became the appellant's responsible medical officer. Dr Collins gave evidence to us.

iii) The appellant was diagnosed as suffering from paranoid schizophrenia. In December 2001, he was started on Clorazil, an anti-psychotic drug. It was the first medication to bring about a significant reduction in his symptoms; the effect was noticeable within 2/3 months.

iv) On 29 October 2005, the appellant was given unescorted parole in the grounds of Ashworth and moved in July 2006 to a low dependency ward.

The appeal against conviction

13. The appellant was advised by his trial team that there were no grounds for appealing against conviction.
14. On 1 June 2000, the appellant sought leave himself to appeal against his conviction writing his own grounds of appeal:

i) He challenged the correctness of rulings made by the judge, the failure of the judge to sum up the forensic evidence properly, the adequacy of the disclosure, mistakes by his lawyers and points on the jury. He sought to adduce fresh evidence. Further details were provided in further grounds submitted later in June 2000.

ii) In view of the criticism of his trial lawyers, the Registrar sought the views of the trial lawyers; each of the points was answered by solicitors and counsel in August 2000. In his response, leading counsel observed that the appellant was highly charged and agitated in the period before the trial; he was, however, able to understand the nature of the evidence against him and able to give full instructions, but would not recognise the strength of the case against him and was unrealistic about his prospects of an acquittal. They had spent much time taking detailed instructions on each point.

iii) The single judge refused leave in November 2000. The application was renewed to the full court.

iv) In January 2001 the appellant first told Dr Collins that he had committed the killing. He gave a detailed account of the killing. He told Dr Collins that whilst on remand prior to the trial, he had become aware of the enormity of what he had done, but he had rejected the option of admitting the killing as he still wished to win his case and defeat the police. A few days later he told a nurse he wanted to withdraw this confession. His position on this varied, but he finally withdrew his confession in the summer. His explanation for making the confession was that he thought he would not be able to make much progress in Ashworth until he admitted the killing.

v) On 21 March 2001 Mr Rees, a solicitor experienced in mental health matters who has represented the appellant since then, saw the appellant. The appellant accepted that when the killing took place, only he and the deceased were present. Mr Rees was satisfied that the appellant was accepting full responsibility for the events that followed and the result; he thought that was sufficient for a defence of diminished responsibility to be advanced and that the appellant was able to give him those instructions. He therefore sought an adjournment of the hearing of the renewed application that was to take place on 27 March 2001; that was granted.

vi) On 18 May 2001 Mr Rees sought leave to appeal on behalf of the appellant on the basis that there was evidence that the appellant was suffering from a major psychiatric illness at all material times and that a verdict of diminished responsibility should be substituted for that of murder. In a letter to the court he stated that he had advised the appellant that there were no grounds of appeal on fact and that the appellant had accepted that advice. Full grounds of appeal were lodged in July 2001 by Mr Rees and by Mr Vaughan of counsel (who has appeared for the appellant at all subsequent hearings). It was contended that the appellant's psychiatric condition, whilst not making him unfit to plead, was capable of affecting the instructions he gave and influencing his defence. He requested that the matter be adjourned so that the defence team at trial could explain what had happened and further medical evidence could be obtained.

vii) In October 2001, the trial team replied setting out the position we have summarised at paragraphs 10.x) to 10.xii) above. Mr Rees wrote to the court stating that the appeal would be pursued even though the defence had advised the appellant as to diminished responsibility, as although his illness did not render him unfit to plead, it did not enable him to give proper instructions.

viii) On 9 May 2002, the Full Court (Pill LJ, Nelson and Pitchers JJ) adjourned the renewed application so that a psychiatrist could be instructed. Counsel then saw the appellant and obtained instructions that the appellant would see a psychiatrist. Dr Wood was instructed and the court advised of this in August 2002. When Dr Wood went to Ashworth to see the appellant, the appellant refused to see him.

ix) The court was so advised on 9 December 2002; it was informed that the appellant wished to proceed with the appeal on the basis that he did not kill the deceased. Mr Rees withdrew. The appellant wrote to the court stating he wished to renew the application on the original grounds.

x) On 17 February 2003, the Full Court (Scott Baker LJ, Holland J and Dame Heather Steel) dismissed the renewed application, noting that the appellant had rejected the only issue that the court was prepared to consider – diminished responsibility. Mr Vaughan was present and explained the difficulties of his position.

15. It is not clear what happened between then and March 2005 when an application was made to the Commission. However, in August 2004 Dr Collins wrote a long report setting out the appellant's psychiatric history and the diagnosis of schizophrenia. For reasons that remained unclear, Dr Collins noted that the appellant was appealing on the grounds that a verdict of diminished responsibility would have been the correct order; he expressed the view that the evidence indicated that the appellant was mentally ill at the time and that this played a most significant part in his offending.

The initial request to the CCRC

16. On 8 March 2005 the Commission received an application from the appellant challenging both the factual basis of his conviction and also stating that he was mentally ill at the time and unable to instruct solicitors or defend himself. It is necessary to refer to the way in which the Commission proceeded as it is relevant to the way in which the Crown made submissions and to our decision:

i) In June 2005 Mr Rees sent the Commission the psychiatric report prepared by Dr Collins in which he had set out his diagnosis of paranoid schizophrenia.

ii) On 28 November 2005 the Commission enquired whether the appellant accepted that he had killed the deceased and whether he was requesting the Commission to investigate whether the defence of diminished responsibility could or should have been advanced at trial.

iii) Mr Rees responded on his behalf on 23 January 2006 to state that the appellant did not accept that he had committed an act that resulted in the death of the deceased; the appellant considered that the evidence against him was significantly flawed. The Commission should nonetheless consider whether the defence of diminished responsibility could have been run at trial; there was nothing legally impossible in running a dual defence: "I did not kill the victim, but if you find that I did, then I was suffering from diminished responsibility".

iv) On 1 March 2006 the Commission wrote to Mr Rees setting out the history of the matter. It pointed out the position was exactly the same position as existed at the Court of Appeal hearings when the appellant declined to accept responsibility for the killing. There was no new psychiatric evidence. The Commission suggested that the first question was whether the appellant had the capacity to instruct Mr Rees; a psychiatric report on this issue was needed. The Commission would also need a psychiatric report on the impact of his mental illness on his responsibility for the death of the deceased, but no such report could be prepared unless the appellant was prepared to admit being party to the killing. As things stood the Commission had no information before it which justified a reference of the case to the Court of Appeal. The Commission requested a response in 14 days; it would then either continue the enquiry or issue a provisional statement of reasons. There was no reply.

v) On 31 March 2006, the Commission therefore wrote advising the appellant of its provisional view that his conviction "should not be referred for a fresh appeal". It set out in detail the reasons for rejecting the contention that the conviction should be referred on the basis of evidence that the appellant did not kill the deceased. Its reasons for declining to refer the diminished responsibility defence were essentially those set out in its letter of 1 March 2006 to Mr Rees. It asked for any further submissions by 28 April 2006.

The further request to the Commission

17. On 10 April 2006, Mr Rees wrote to the Commission stating:

i) The appellant had indicated to him

"that he was at the scene at the material time. Indeed [the appellant] has also indicated to certain medical professionals that he was not only at the scene, but also involved in events. This clearly precludes a defence based upon "it was not me, I was not there" (a criminal defence) but does not prevent a defence "it was not me, it was my invisible friend" (a psychiatric defence). Indeed [the appellant's] insistence that he did not commit the act not only makes running a psychiatric defence very difficult, but also makes treatment by the psychiatrists difficult, if not impossible, and effectively prevents him from ever being released

What has now changed is that following lengthy discussion with those treating him, [the appellant] now accepts that he was there at the time of the offence and was the only person there (apart form the victim) and that he should instruct me to run a psychiatric defence on that basis"

Mr Rees then set out the case that the appellant was suffering from paranoid schizophrenia and this not only diminished his responsibility but also prevented him running such a defence at trial. That disorder had only recently ameliorated to enable proper instructions to be obtained.

ii) Mr Rees wrote to the appellant setting out what he had told the Commission in the second part of the letter.

18. The Commission agreed to give further consideration to the matter and to obtaining an expert report. A report was received from Dr Collins dated 10 August 2006;

i) It contained a detailed account of the appellant's mental history.

ii) It set out the account of the day of the killing given to Dr Collins by the appellant in two long interviews in June and July 2006. The appellant had stated that he had heard voices during the day telling him to kill; he had met the deceased and allowed him to stay the night in his room. He woke up in the night and the voices told him to kill; he had been unable to resist them. He had taken a kitchen devil knife and stabbed the deceased in the neck and nearly decapitated him in one go. The voices stopped. He realised he had to get rid of the body and dismembered it in the bath; he cleaned the carpet. He put the body in a large bag and wandered round the streets to find somewhere to dispose of it. He threw the knife and head into the sea.

iii) The appellant also gave an account of why he had pleaded not guilty; he said he did not want admission to Ashworth; one of the reasons for this was that he had been told by his lawyers that he had a good chance of getting off. He had also said that he was full of anger against the police and thought he could beat them; no psychiatrist in the world could have talked him out of pleading not guilty

iv) Dr Collins concluded that at the time of the offence the appellant was suffering from paranoid schizophrenia and had been suffering from it for some years before, quite possibly since he was 11. This had impaired his responsibility for the killing of the deceased; his illness had the further consequence that he lacked the insight to give instructions to plead diminished responsibility.

19. On 24 November 2006 the Commission decided to refer the conviction to this court on the basis that there was credible fresh evidence that the appellant was suffering from an abnormality of the mind which substantially impaired his responsibility for the commission of the offence and there was fresh evidence that his mental illness played a significant role in his refusal to accept his involvement in the offence or to countenance a diminished responsibility defence.
20. Before referring to that evidence, it is necessary to set out the approach that we should adopt to that evidence.

The guidance applicable to the exercise of the discretion to admit fresh psychiatric evidence in relation to appeals of this kind

21. It is essential again to emphasise that it is fundamental to the trial process that a defendant must advance all aspects of his case at trial and a court will not admit fresh evidence to enable a defendant to run a different case if that case could have been run first time round: this principle was made very clear in relation to appeals in cases where the fresh evidence relates to a plea of diminished responsibility by Lord Taylor, the then Lord Chief Justice in R v Ahluwalia (1993) 96 Cr App R 133. A good example of a case where the court applied that principle is R v Shah [1998] EWCA Crim 1441. This principle cannot be stated too often – see R v Hill [2008] EWCA Crim 76.
22. However in the exercise of its powers and in accordance with the principles set out in s.23 of the Criminal Appeal Act 1968, the court can permit fresh evidence to be admitted. Although it is clear that each case will depend upon its facts and upon the exercise of the discretion in accordance with the principles in s.23, a series of cases which have been before the court enabled some guidance to be stated as to the exercise of that discretion in relation to cases where the evidence relates to a plea of diminished responsibility that was not advanced at trial. These were very helpfully and clearly stated in R v Neaven [2006] EWCA Crim 955 [2006] Crim LR 909 by Rix LJ as follows:

"(1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards tactical decisions, remain fundamental.

(2) That it therefore takes an exceptional case to allow it to be in the interests of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this

(3) each case turns on its own facts. Therefore,

(4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (in the absence of opposition from the appellant himself – see Kooken) to admit it.

(5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant's illness itself.

(6) The emergence only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of offence. In this connection it may be observed that only in the special case of Kooken was clear and undisputed fresh evidence on appeal of a good defence of diminished responsibility to the killing not acted upon in this court."

23. We would like to emphasise as important to the present case in particular the following:

i) If at the time of plea there was medical evidence that the defendant was fit to plead, and if he was fully advised as to the position in relation to diminished responsibility and fully capable of taking the decision as to how the case was to be put, and decided not to advance a defence of diminished responsibility, then even if the defendant was not a "normal person", it was not permissible for a defendant to change his mind after the verdict: R v Straw [1995] 1 All ER 187.

ii) If there was medical evidence prior to the trial of a mental illness, but the defendant did not permit the defence team to advance a defence based on that and insisted on appeal that the same course be taken, then it would not be in the interests of justice to permit an application to adduce evidence of that mental illness: R v Kooken (1981) 74 Crim App R 30.

iii) It is essential to consider the medical evidence on two issues (1) a defence of diminished responsibility succeeding and (2) the mental illness itself being a material cause of the decision not to run the defence of diminished responsibility (or to use Kennedy LJ's phrase in Shah the choice was "forced on him"). In the first hearing in R v Borthwick [1997] EWCA Crim 2656 ([1998] Crim LR 274), the need for overwhelming or clear evidence of both of these was stressed, if the evidence was to be admitted. In the subsequent hearing, there was undisputed evidence which was unknown at trial; that was also the position in R v Gilfillan [1998] EWCA Crim 3466, R v Haddon [2003] EWCA 284 and R v Ashton [2006] EWCA Crim 1267. In R v Weekes [1999] 2 Cr App R 520, [1999] Crim LR 907 there was undisputed evidence available to the crown and the defence at trial, but the defendant had refused to defend the case on that basis.

iv) It is very important to have regard to whether the evidence is contemporaneous or ex post facto. If there was strong evidence of mental illness which might have impaired the responsibility for the killing available after the trial but none available at the time of the trial, the court would view with scepticism any retrospective evidence of that kind. But where there was evidence contemporaneous to the trial which was not pursued and about which the defendant was not advised, then the court might admit fresh evidence: R v Ahluwalia (1993) 96 Cr App R 133. This and the decision in Neaven are cases of this kind.

v) Where there is a dispute over the medical evidence as to whether the defendant was suffering from an abnormality of mind that might have impaired the responsibility for the killing and his ability to give instructions, then the difficulties that the appellant will face have been made clear. In R v Sharp [2003] EWCA Crim 3870, Lord Justice Buxton said at paragraph 32

"It is only going to be in very exceptional cases that a different defence can be adduced. Thirdly, that will normally only be the case, as Schiemann LJ indicates in Weekes, where the original evidence was indeed available at the trial. That is not this case. Fourthly, the criteria that will be looked for before an exceptional case can be accepted are (i) that the availability of the diminished responsibility defence is effectively unchallenged or at least certainly not controversial; and (ii) that there is an explanation in medical terms for any decision by the defendant not to run that diminished responsibility case at the trial."

In R v Shickle [2005] EWCA Crim 1881 the court applied the approach suggested by Buxton LJ in a case where evidence on both issues was challenged and controversial and no psychiatrist had been instructed at trial. The evidence was not admitted save for the purpose of deciding that it was not established that his mental condition materially affected his decision not to run the defence of diminished responsibility. In Latus [2006] EWCA Crim 3187 the court concluded that the decision was not caused by the illness but by a tactical decision not to allow the defence of diminished responsibility to be investigated.

24. We turn to the evidence before the court.

The psychiatric evidence before the court

25. We heard evidence from both Dr Collins and Dr Snowden under s.23 of the Criminal Appeal Act 1968; they are very experienced psychiatrists and we are greatly indebted to both of them. The way in which the evidence was provided to the court was a model of its kind. Both agreed on 4 matters:

i) The concerns about the appellant's mental condition expressed prior to the trial were correct.

ii) In the light of all the evidence it was clear that the appellant suffered from paranoid schizophrenia at the time of the offence and during his period on remand and trial.

iii) He was fit to plead within the established test.

iv) He now had capacity to give instructions to his lawyers, as we have set out at paragraph 6.

26. However they disagreed as to how longstanding the schizophrenia had been and the extent of his personality disorder; they also disagreed as to whether the schizophrenia and his personality disorder impaired his responsibility for the killing and was a material cause of his decision to plead not guilty and not to defend the case on the basis of diminished responsibility.
27. Dr Collins' evidence was in summary:

i) The appellant had been suffering from schizophrenia for some considerable period before he killed the deceased, probably since the age of 11, as that was when he first spoke of auditory hallucinations. It was evident from Dr Shaw's report of June 1997 that it could now be seen he had paranoid thoughts; she had been mistaken in her diagnosis. The appellant had attributed the 43 recorded assaults (including those when in custody) which he had committed prior to admission to Ashworth to hallucinations, paranoia and his general sense of anger, particularly against the police. When admitted to Ashworth the assaults had continued.

ii) He accepted that the diagnosis had been based on his subsequent care and examination of the appellant and a study of the records; an assessment at the time should have taken place and his diagnosis had its limitations. He accepted that the appellant had been able to give instructions in respect of the offences in 1995 and 1996 of which he had been acquitted

iii) The schizophrenia had substantially impaired the appellant's responsibility for the killing. At the time of the trial, the factors that played a significant part in his decision to plead not guilty were – an opportunity to gain a degree of revenge on the police by securing a not guilty verdict, a lack of understanding of his condition (which meant that he acted on his paranoiac ideas) and the self interest in hoping to obtain a not guilty verdict. The mental illness had played, in his judgment, a significant role in the appellant's decision to plead not guilty; the appellant had not understood what was on offer as he did not know that his condition was treatable.

iv) The appellant also had a personality disorder, but the schizophrenia was the condition that affected him more at the time of the killing; it had trumped the personality disorder.

v) The appellant had started to respond to treatment after December 2001; he had ceased to be involved in fights. The appellant had said his fantasies had diminished and then disappeared. By August 2006, he had started to gain insight into his feelings.

vi) When in January 2001 the appellant first admitted the killing to him, (see paragraph 14.iv)), the appellant was still ill, as was evidenced by his paranoiac behaviour in 2002. In January 2001 he still had hope his appeal would succeed; his confession had taken away that hope and was ending his fight with the police. The appellant then regretted it, withdrew it and denied he was the killer.

vii) It was only by 2004 that the appellant began to recognise he was mentally ill and the steady improvement continued until 2006. He had not addressed the issue of the killing with the appellant between 2001 and June/July 2006, when they discussed it again and the appellant admitted the killing (as set out in paragraph 18.ii) above). Since then the appellant had maintained his admission of the killing

viii) He was not sure that the appellant had the capacity to give instructions before 2005, but he certainly had that capacity in and after 2005. When the Commission refused his appeal on the facts, he had the capacity to give instructions on which Mr Rees had proceeded (as set out at paragraph 17).

28. Dr Snowden's evidence was in summary:

i) As we have set out at paragraph 10.ix), Dr Snowden had seen the appellant in September 1998. His view at the time was that the appellant was suffering from significant personality difficulties that probably amounted to a personality disorder, but he could not conclude that he was suffering from a mental illness without an assessment. His view that the appellant had personality difficulties was supported by the fact that the appellant had had a childhood conduct disorder which was not uncommon in those who went on to develop a personality disorder. He agreed with the opinion of Dr Shaw set out at paragraph 9.xi) that the appellant had a personality disorder; this amounted to a psychopathic disorder that could reasonably be viewed as an abnormality of the mind. The evidence of the examination in Prestwich in 1993 (see paragraph 9.v)) and the psychiatric history which we have set out supported the view that the appellant had a personality disorder and no mental illness until 1997.

ii) He had considered that during the appellant's periods on remand for the killing of the deceased, there was evidence of a change in his mental condition and a suspicion of mental illness. Although there was now ample evidence to support a diagnosis of a paranoid schizophrenic illness in addition to the personality disorder, it was unclear when the illness started to develop. Undoubtedly there was a change between the assessment by Dr Shaw in 1997 and the pre-trial assessments. At the time of the killing and thereafter, he had two abnormalities of the mind – the serious and chronic personality disorder and the schizophrenia; it was not now possible to say which was dominant and both must be taken into account when considering what caused his decision to plead not guilty.

iii) If the appellant's mental illness had been known at the time of the trial, he would have recommended further examination and testing to determine the extent of his illness and personality disorder. It was not safe to rely on the appellant's account as he might or might not be accurately relaying his mental condition to others.

iv) However, in the absence of that contemporaneous examination and testing, he could not agree that his mental illness was a material cause of the appellant's decision to plead not guilty or that it did substantially impair his responsibility for the killing. A killing by someone with schizophrenia did not inevitably mean that there was diminished responsibility for a killing by that person. It was possible that if the appellant had been examined, there would have been evidence to establish diminished responsibility, but he could not say it was probable that was so. Furthermore all he could now say was that it was possible the appellant did not have the capacity to give instructions on account of his illness; he might simply have been playing the system and wanted to avoid responsibility if at all possible.

The difference that a verdict of diminished responsibility would make

29. In Kooken to which we have referred at paragraph 23.ii), the Lord Chief Justice asked the question as to the difference it would make to substitute a verdict of manslaughter:

"Practically speaking, what difference, apart from the label, would intervention by us in the calling of the evidence make? If the evidence persuades us that diminished responsibility was made out, then the label of the crime would be changed from murder to manslaughter by reason of diminished responsibility. One then has to decide whether to leave the imprisonment standing or make a hospital order under section 65 in its place. Whichever we do, this lady would remain in Broadmoor, and in any event there she will obviously remain until she is cured, if ever that happens. There is no doubt that she is very dangerous, and, unless some startling new drug is found, as it may be, the chances are that she may have to remain in safe custody for the rest of her life. The only difference will be the label."

30. The position is now different. Dr Collins referred to the change by the Home Office in 2005 in the way in which prisoners such as the appellant who had been convicted of murder were managed and held whilst serving life sentences for murder. After transfer to a secure hospital under s.47/49 of the Mental Health Act, the practice had been to accord what was called "technical lifer" status; thereafter those with this status had been managed within the mental health system, unless it was appropriate to return a prisoner to prison to continue his life sentence. If a prisoner remained within the hospital system as a "technical lifer", as the management of their release required the support of the mental health services, their conditions of security, release and other matters were managed by the hospital with any issues being determined by the Mental Health Review Tribunals. They were in effect treated as if they had been made subject to a hospital order. A full description of the system and the reason for its abolition is given in the decision in Beatty [2006] EWCA Crim 2359 at paragraphs 22-29 and 58.
31. In 2005, the Home Office ended that regime. All questions relating to reducing the level of security and release were for the Parole Board; there was real concern as to the delay and lack of flexibility that could cause for persons such as the appellant.
32. Thus the change in policy made, we were told, a real difference to those in the position of the appellant. It appeared from Dr Collins' evidence that there might be several others who might wish for that reason to seek to have a conviction for murder set aside and, after the substituted conviction for manslaughter on the grounds of diminished responsibility, become subject to a hospital order. We were informed by the Commission it had no further cases of this kind in the pipeline.

Our conclusion

33. This appeal was heard 10 years after the killing and 9 years after the conviction; there had been an attempt to appeal against the conviction which had proceeded before the court for 3 years and during which the issue of diminished responsibility had been raised. That appeal had been dismissed.
34. If we are to admit fresh evidence as to the issue of whether his responsibility for the killing was diminished, we must first determine whether by reason of his mental condition during 1998 and until the conclusion of his trial in January 1999, he was capable of giving the instructions he gave to his defence team at trial when he refused to allow this defence to be raised and gave them the instructions to defend the case on the basis he had not committed the murder.
35. In approaching that issue, the Crown have urged upon us that the test we must apply is that set out in Borthwick as to the need for overwhelming or clear evidence. In the light of all the submissions before us, we will proceed on the basis that no higher or different test is to be applied than that which is applicable in other s.23 cases (cf the commentary in [1998] Crim LR 274 on Borthwick). The observations in Borthwick and Sharp emphasise the real difficulties faced by a court which is seeking to deal with these issues on disputed evidence sometime after a trial where the case sought to be run was not before the jury. As was pointed out by Lord Bingham of Cornhill CJ in R v Criminal Cases Review Commission [2000] 1 Cr App R 141 at 149, the different language used in this court has reflected its judgment of the case before it. "The more unpromising the context in which the appellant seeks to adduce fresh evidence, the more compelling the evidence would have to be (all things being equal) before the Court of Appeal would receive it."
36. On the fact of this case, we have come to the conclusion that, on the evidence available to us, the decision made by the appellant to plead not guilty at the trial and not to avail himself of the defence of diminished responsibility was tactical and not made on the basis that a material cause of giving the instructions has been shown to be his mental condition at that time. Because it was a tactical decision not materially caused by his mental condition, there is therefore no reasonable explanation for the failure to adduce the evidence at the trial. In reaching that conclusion we prefer the evidence of Dr Snowden, which we consider is supported, as is our conclusion, by a number of matters. In saying that we wish to pay tribute to the very considerable help and assistance we have been given by Dr Collins.

i) It is always important to make as contemporaneous as possible to the event in question an assessment of the mental state relevant to that event. There are very considerable difficulties 9 to 10 years later in 2008 trying to assess the appellant's mental state in 1998 and January 1999; there were also considerable difficulties in doing this when Dr Collins first became involved with the appellant in September 2000 and when he wrote his first report in 2004.

ii) We therefore attach much greater weight to the contemporaneous assessments.

iii) In 1993 and 1997 he was not diagnosed as suffering from a mental illness; we cannot accept the conclusion of Dr Collins based on his assessment many years later that the appellant was so suffering and cannot prefer that to the contemporaneous assessment of two experienced consultant psychiatrists.

iv) It is probable that there was a change in the appellant's condition after remand into custody. Dr Snowden saw him in September 1998 and he had diagnosed a personality disorder with the possibility of a mental illness. He found no symptoms of mental illness, though Dr Coorey and Dr Holloway had found some evidence. There was, however, no contemporaneous evidence of a diagnosis of such an illness. We have set out the view of the medical director of the prison at paragraph 10.xiv).

v) Although it became clear subsequently that the appellant had schizophrenia at the time of the killing, it is not now, 9 years later, possible to ascertain the role it or his personality disorder played in his decision to plead not guilty.

vi) He was given competent and clear advice in 1998 in the period leading up to the trial that it would be in his own interests to undergo an assessment and to consider the defence of diminished responsibility. However, the probability is that, having obtained acquittals in 1995 and 1996, the self interest in obtaining an acquittal was the dominant motive in his decision to plead not guilty; we are driven to conclude that it was a tactical decision made with sufficient understanding on his part. We cannot at this time on the evidence before us conclude that any lack of insight brought about by his schizophrenia played a material role in his decision.

vii) We do not accept any of the accounts given by the appellant; in the light of the history we have set out and of the differences in his account of the killing and the objective evidence, we could not do so.

viii) We accept the submission made by the Crown that the fact that his decision to plead not guilty was tactical is supported by the history of the appeal between 2000 and 2003 and the course of his application to the Commission, particularly what happened in March and April 2006 when the Commission were persuaded to consider his case on the basis he had killed the deceased. It is in our view very significant that the appellant only finally admitted he was the killer to Dr Collins in June and July 2006, when all other avenues of appeal were at an end and his only hope was to advance the defence of diminished responsibility. As Dr Snowden opined, this might well be linked to his underlying personality disorder and demonstrate the tactical nature of his actions – only admitting to the killing when there was no alternative.

37. We have also taken into account the broader issue raised by Dr Collins in this appeal in relation to the change of policy by the Home Office in 2005 referred to at paragraph 30. The position is, as we have stated, different to that which pertained at the time of Kooken. The resulting complaint turns on the need to involve the Parole Board; that in turn raises the well known issues in relation to the resources available to it. That must be a matter for the Secretary of State for Justice and, if he fails to carry out his statutory duties, the remedies that can be sought.
38. As we have reached the conclusion on the basis of the evidence before us that there is no reasonable explanation for the failure to adduce the evidence at trial, we can see no basis for otherwise considering it necessary or expedient in the interests of justice under s.23 to admit the evidence of Dr Collins relating to diminished responsibility. It follows that the conviction cannot be set aside.

Observations

39. We expressed our concern that the state of the appellant's mental condition at the time of the killing, the underlying issue in this appeal, has been before the courts for 10 years. It is particularly important to have regard to the effect this has plainly had, not only on the appellant but also on all the others who are affected by the killing. Surely all should be entitled to have such an issue determined in a way that brings finality and closure of the issue within a much, much shorter timeframe than 10 years.
40. As it was know to those defending the appellant, the Crown and the Court in 1998 that there was an issue as to the appellant's mental condition at the time of the killing, we therefore asked for and received short submissions on whether any other course was open at trial, particularly in the light of the observations of Dr Collins during his evidence that he had experience of several cases where he concluded the defendant was fit to plead on the accepted test (to which we refer at paragraph 42 below), but might be incapable of giving instructions as to whether to run a defence of diminished responsibility. It may be that the problem is a rare one, but in case it arises again we will set out an outline of our observations on the submissions put before us.
41. The submissions covered four issues (i) fitness to plead (ii) the role of the defence (iii) the role of the prosecution and (iv) the role of the judge. We are greatly indebted to counsel for their assistance.

Fitness to plead

42. The classic test for fitness to plead was set out by Alderson B in Pritchard (1836) 7 C&P 303, Alderson B laid down the test, then a matter for a jury, which has been applied since:

"There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence - to know that he might challenge any of you to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.' "

43. Over the years there have been a number of attempts to enlarge the meaning of the necessary 'comprehension' under the test. A notable argument was mounted by F H Lawton QC for the defendant in the capital murder case of Podola (1959) 43 Cr App Rep 220, where at p 229 counsel argued that:

"In the third criterion in Pritchard.. "comprehend" must mean to lay hold of something with the intellect; it means not merely understanding, but understanding with the intellect so as to see the significance of what is happening. If a man does not and cannot, because of a disturbance of the mind, appreciate the significance of the evidence, it is meaningless to him and he does not comprehend it.' "

This argument was rejected by a five judge constitution of the Court of Criminal Appeal over which the then Lord Chief Justice, Lord Parker presided. It was made clear at pages 238/9 that the meaning of the test was narrow - could the defendant understand the case as it proceeded? The Court adverted to Scottish authority from the 1940s in support of that view. It was made clear in Robertson (1968) 52 Cr App Rep 690 that the enactment of the Criminal Procedure (Insanity) Act 1964 made no difference to the approach. Lord Parker rejected the Crown's submission that the test was broader at page 692-4:

"Counsel for the Crown in opening referred more than once not merely to the ability of the appellant to instruct counsel, but "properly" to instruct counsel, putting before the jury the question whether the appellant was "properly able" to defend himself .. and the experts in the trial in fitness to plead were questioned in similar terms. The thrust of the medical opinion which prevailed and led to the verdict of unfitness being challenged on appeal, was to the effect that ... he is entirely capable of understanding the legal effect of pleas of Guilty and Not Guilty etc, but he [Dr Neustatter] fears that his delusional thinking, from which he suffers, might cause him to act otherwise than in his best interests; in other words, unwisely, and so on. And the same appears from other reports before this Court.

The defence position was that' .. this appellant. .. appears to have had a complete understanding of the legal proceedings and all that is involved and, although he suffers from delusions which at any moment might interfere with a proper action on his part, that is not a matter which should deprive him of his right of being tried."

44. The approach taken in these cases was re-stated in Berry (1978) 66 Cr App Rep 156, a case where there was evidence of delusional paranoid schizophrenia. Geoffrey Lane LJ, as he then was, came to an identical conclusion, reaffirming the test. These decisions were followed in M (John) [2003] EWCA Crim 3452 where the defendant suffered from a serious impairment to his short term memory. The court approved the direction of the judge that the jury could find unfitness to plead if the defence could establish on a balance of probabilities any one of six things that was beyond the appellant's capabilities;

"(1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; (6) giving evidence in his own defence."

45. It follows that a consistent approach has been followed as to the test of fitness, and doing so even in the context of reported cases (Robertson, Berry) where the defendant was suffering from delusional mental illness which, on the face of it, had at least the potential to found a defence of diminished responsibility.
46. We have referred at paragraph 40 to a gap which Dr Collins says may well exist. On the established test, a defendant is fit to plead in cases where his mental condition may well enable him to advance successfully the plea of diminished responsibility, yet his mental condition is still such that it may also prevent rational or sensible decision-making as to the conduct of his defence. Once it is concluded that the defendant is fit to plead, although it may be apparent to everyone that else that there is an issue as to whether his decision making is materially affected by his mental condition, he is entitled to refuse to have his mental condition assessed (absent an application under s.35 of the 1983 Act). The trial proceeds on the basis of the instructions given not to advance a defence of diminished responsibility, with the risk that at some future stage, a point will be taken on his capacity to give the instructions when the essential contemporaneous medical evidence is lacking.
47. We would observe that no case was drawn to our attention where the relationship between fitness to plead and this issue has been examined, though we were referred to the article written as long ago as 1993 by Professor Grubin What constitutes unfitness to plead? [1993] Crim LR 748 and the response and further comment at [1994] Crim LR 419 and 423. The issue of reform was also raised by Professor R.D. MacKay :Mental Condition Defences in the Criminal Law (1995) at pages 241-246
48. Our attention was drawn to:

i) The Mental Capacity Act 2005 which has set a new framework and a new test of capacity for civil purposes and had been in force since April 2007.

ii) The fact that decision on fitness is determined by the judge since the coming into force of s.59 of the Domestic Violence Crime and Victims Act 2004

iii) Lord Bingham of Cornhill's statement of broad principle in R v Coutts [2006] HL 39 at paragraph 12:

"The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged."

The question was posed as to why those who may suffer from an abnormality of mind such that they cannot give rational instructions should be placed in a position where decisions they take can result in a conviction for murder rather than that which their culpability demands?

49. This was not a case where the issue could now be raised in the light of the evidence that was available to the appellant and to this court. It therefore was rightly not raised on the appellant's behalf.

(iii) The defence lawyers

50. If the defendant is fit to plead, the defence lawyers are under a duty to advance the defence they are instructed to advance, having tendered proper advice. Although intellectually possible, it is likely to be tactically disastrous to defend the case on a denial of the killing whilst at the same time saying that if it is proved, responsibility is limited. The defence team, as in the present case, can do no more than advise and follow the instructions given

(ii) The position of the prosecution

51. Up to 2001, the prosecution had adopted a practice of obtaining a psychiatric report on any defendant charged with murder; this arose from the Home Secretary's obligation to consider leniency in capital cases, but more recently was obtained to assist the court on the issue of fitness to plead. The practice, which the Crown attempted to follow in this case, was discontinued after the decision in R v Reid [2001] EWCA Crim 1806. However if a defendant charged with murder is released on bail, there remains extant the requirement in s.3(6A) of the Bail Act 1976 (inserted into the Act in 1982) that the court must impose a condition as to examination by two psychiatrists, unless it considers that there is satisfactory evidence of his mental condition.
52. It is clear that the Crown has a duty to disclose any information relating to the mental health of a defendant – see Reid at paragraph 20 and R v Casey (1947) 32 Cr App R 91.
53. The duty of a prosecutor is otherwise governed by the Code for Prosecutors; if it considers that there is no realistic prospect of a conviction for murder, it can then accept a plea for manslaughter. Unless that is the position, no current duty rests on the Crown to put the mental position of a defendant before the court where the defendant does not wish to raise it (cf Nott (1958) Crim App 8).

(iii) The position of the judge

54. The judge has a very limited duty. In Kooken, the Lord Chief Justice observed in answer to a submission by the defence that the judge could raise the issue:

"We very much doubt whether any such discretion can exist in the judge. However it is always dangerous to forecast that no possible situation could ever arise in which the judge may not have to consider his powers in that respect. But we find it difficult to envisage any situation where a judge could properly call evidence to this effect in the face of the wishes of the defendant, upon whom the choice lies and upon whom alone the choice lies"

55. In Campbell (Colin) (1987) 84 Cr App R 255, it was suggested that the judge should have left the issue to the jury. The view was expressed that the most a judge should do was to point the issue out to the defence and it was their decision as to whether to pursue the issue; a similar observation was made in Straw.
56. It was submitted to us that the observations in Coutts on the duties in respect of alternative verdicts make no difference as, if the defendant did not wish to run the defence, there would be no evidence before the jury.

Other considerations

57. The issue was considered by the Law Commission in 2006 in their Report Murder, Manslaughter and Infanticide referred to the decision in Kai-Whitewind [2005] 2 Cr App R 31 in relation to infanticide where Judge LJ raised in the context of infanticide the question as to how the law should deal with cases in which a mother suffering from a postpartum psychiatric disorder killed her child, but denied the killing. He referred to the fact that the law was outdated and outmoded. The Law Commission put forward proposals at paragraphs 8.45-59 for dealing with this issue, but advised against similar recommendations for diminished responsibility for the reasons set out at paragraph 9.105 of its consultation paper No 177:

"Why would such an innovation apply exclusively to those defendants who, bar the denial, would have been able to plead infanticide, and not, for example, to cases where a defendant may be suffering from diminished responsibility? Diminished responsibility is always for the defendant to raise. Infanticide is not only a rare offence but one which the prosecution would be able to charge and would no doubt wish to do so in the circumstances under discussion, had there been any evidence of mental disorder. Neither does the success of a plea of diminished responsibility always ensure a lenient disposal. A psychopath may be guilty of manslaughter by virtue of diminished responsibility and still receive a life sentence. In contrast, a plea or finding of infanticide rarely even results in a custodial sentence. In the sort of cases contemplated, the chasm between the disposal which is appropriate and the one which the judge is forced to impose under the present law is vast."

Opinions can clearly differ as to whether the distinctions drawn are right.

58. It is striking that the issues were raised by the late Professor Sir John Smith in his commentary on R v Criminal Cases Review Commission ex p Pearson at [1999] Crim LR 731:

"A striking feature of the cases reviewed is that so many of them involve prosecutions for murder where, subsequently, the appellant has sought to adduce fresh evidence to support a defence, not raised at the trial, of provocation or diminished responsibility. The present law invites this problem. An accused is entitled to put the prosecution to proof of the whole of its case but it is not practical for him to raise alternative defences as is--or used to be--possible in civil proceedings: "I did not kill him; but, if I did, it was in self defence, or, if not in self defence, under provocation--or at least diminished responsibility". Naturally the accused will go for a complete acquittal if he thinks there is any possibility of it which may preclude him from raising other, perhaps more plausible, defences. The courts have almost fallen over backwards in discerning evidence of defences not expressly raised or even disclaimed in order to ensure that justice is done, but there are limits and this will be a continuing problem for the courts and the Commission.

There is a solution. The abolition of the mandatory penalty for murder could, and I now believe, should, carry with it the abolition of the defences of provocation and diminished responsibility. The rest of the law of offences against the person has many serious imperfections but the absence of these defences is not one of them. The matters to which they relate can be dealt with perfectly well at the sentencing stage. Unfortunately, as debates on the mandatory penalty in Parliament have demonstrated, this is a subject on which emotion and prejudice, not reason, prevail."

Concluding observations

59. It may be that cases such as this are sufficiently rare that the present position can be left as it is, but on the other hand the issues of principle raised point in any event to the desirability of finding a solution to a problem which, as the late Professor Sir John Smith pointed out half a generation ago, the current state of the law invites. It would be desirable for the issues to be fully examined if the occasion arises.