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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 >> Cox, R v [2000] EWCA Crim 5 (26 January 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/5.html Cite as: [2000] EWCA Crim 5

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Case No: 1995/04394/W5

On 13 July 1992 at the Crown Court in Winchester before Turner J and a jury Julian Ashley Henry Cox was convicted of 5 offences: damaging property with intent to endanger life, 3 offences of attempted murder and 1 offence of murder. He was sentenced to life imprisonment on each count and the judge recommended a minimum custodial term of 20 years. His applications for an extension of time and for leave to appeal against conviction and sentence have been referred to the Full Court.
The applicant himself drafted grounds of appeal but these are now superseded by grounds drafted by counsel. It is sought to adduce further evidence under section 23 of the Criminal Appeal Act 1968, as amended. The purpose of the fresh evidence is to establish that the conviction for murder was unsafe because, in the light of the fresh evidence, the applicant might have succeeded in establishing a defence of diminished responsibility. Further, or in the alternative, the jury might have taken a different view of the applicant's intention with respect to all offences at the material time.
The bizarre events of the night of 16 July 1991 can be described in summary form. It will be necessary to consider the evidence and proposed evidence of the applicant's mental condition at the material time in more detail. The prosecution case was that the applicant deliberately set fire to the family home in Emsworth with the intention of killing his family and destroying the house. He sought to benefit from the insurance monies. He was staying there with his parents, his sister Jackie and her son Tim. His mother died at the house as a result of the fire.
The evidence was that the fire had started in a corridor on the first floor. A pool of petrol was found outside Jackie's bedroom door. It extended into her room and would have consisted of one or two pints. The seat of the fire, in the opinion of the fire investigation officer, was in the corridor outside Jackie's room. There was an open plastic can containing just over a litre of petrol outside the door of Mr and Mrs Cox's bedroom. Petrol was found on the carpet. In a ceramic bowl in the applicant's bedroom were three full and closed plastic bags containing a total of just over two litres of petrol.
The applicant's girl-friend had left the house late in the evening. Jackie Cox heard noises outside her room during the night and went to investigate. She smelt turpentine or petrol. She then noticed that she was on fire, ran out of the house and rolled on the damp grass to put out the fire. As an air hostess, she knew the procedure to follow. When she noticed her brother near her outside the house, he threw a garden urn at her. When it missed he picked up a piece and threw that at her. She became hysterical shouting "he's trying to kill me". Neighbours arrived on the scene.
The applicant went back into the house but the fire had taken hold. He rescued his mother and father and Tim and himself received burns and other injuries. Jackie Cox received burns of 20% of her total skin area. She made a good physical recovery but suffered a degree of psychological upset which was prolonged.
When interviewed by police and asked how the fire started, the applicant said: "I don't know. I know it was me but I don't know how". He gave an account of his previous difficulties. He stated that he was sure he started the fire but could not remember doing it. He could not definitely remember igniting Jackie. When asked whether he had any recent history of medical illness his answer was interrupted by the entry of an officer into the interview room and there was no return to the subject.
In his evidence, the applicant said that he had returned home on a visit to spend time with his family to sort out his business affairs. It is clear that his company, Ashleys of Emsworth Ltd, was in serious financial difficulties. The applicant had guaranteed the company's debts. The applicant said that he had returned home to visit his family and to sort out his business affairs. He had forgotten his personal liability to the bank and knew that the company was "dead". However he said that he was not financially desperate.
The applicant gave evidence that the preceding day had been a normal, happy one. He went for a walk with Jackie and Tim and said it was "one of the happiest little walks Tim, Jackie and I had had". Asked how his spirits were he replied: "High. It was nice to be home. It was all fine". During the night however, he said he was restless and began looking over the house for different pieces of mail. He decided to get petrol to burn papers relating to the company. He wanted to burn repeat invoices so that no one would see them. He took two red plastic containers of petrol from the garage into the house. They were both between one half and three-quarters full. The three plastic bags which he began to fill were to be his reservoir of petrol for burning the documents. In his room he decanted one can into the other, spilling petrol while doing so.
In the corridor, the applicant pulled out his lighter in an attempt, he said, to find a key. He said that he knew it was a stupid thing to do. There was a big vapour flash and he was aware of smouldering and petrol. He saw Jackie on the landing and then became aware of fire around. He followed Jackie out of the house. (Based on evidence as to how long it would have taken for the fire to take hold, the prosecution case was that he remained in the house for a short time to spread the fire). He saw his mother through the flames at the door of her room. In the garden, he tried to knock Jackie down to put the flames out. He was livid, cross with himself, and frustrated. Jackie bit his fingers (she denied that). He hit Jackie with something which he thought was a bit of stone or concrete. When Jackie said "My baby", he returned to the house and rescued the child and Mr and Mrs Cox. When cross-examined, the applicant said that it had seemed a good idea to burn documents in the middle of the night as he was compulsive about getting things done.
For the defence, evidence was given by Madame le Grande at whose home in Cherbourg the applicant had been staying until a few days before July 16. He had seemed normal when he left for England and she had expected him to return in a few days. Mrs Groves, a publican, gave evidence she had known the Cox family for years. The applicant was thoroughly nice. She had once seen him light pieces of paper and drop them into a waste paper basket. When she told him that was silly, he said "It burnt out and that was it". She had also seen him light a fire with a full jar of petrol in the sitting room. When she said it was dangerous, he did not respond.
The jury reached verdicts in about four hours. When sentencing the applicant, the judge stated that it was very fortunate that the applicant's sister was a light sleeper. The judge's analysis of the evidence was that it was a "chillingly cold-blooded plan by you [the applicant] to do away with your family ... selfishly, you thought, that by that means you could solve your own financial problems. A baser motive for a crime ... it is difficult to imagine".
At the time of the alleged offences, the applicant was 29 years old and without convictions. Following arrest he was examined by Dr Pickstock who found no evidence of mental illness. In his summing up, the judge had referred to the bizarre nature of the events of the night of July 16 and the jury would have considered them in the context of a man of good character on good and close terms with his family.
Understandably, medical evidence was sought before the trial as to the applicant's mental state. On behalf of the defence, he was examined by Mr Nicholas Wright, consultant general and forensic psychiatrist, who reported on 2 October 1991. The report is stated to be "with regard to his application for bail". We set out the report in full and without comment at this stage.
"Thank you for requesting a psychiatric report on Julian Cox with regard to his application for bail.
As you know, his is a very unusual case; I have therefore interviewed and examined Mr Cox very carefully and extensively on three occasions, 30th July 1991 for one hour, 7th August 1981 for one hour twenty minutes and on 4th September 1991 for one hour thirty minutes. I have also listened to the tape-recordings of his interviews with the Police and talked to the prison offices responsible for his day-to-day care while on remand in Winchester Prison.
In all my examinations I could find no evidence of mental illness, nor any mental abnormalities which might be an issue at his trial. This view of him is also held by the medical officer and hospital officers at Winchester Prison since he has been there under observation.
In my extensive investigations there were no indications that he might commit a further alleged offence of this nature should he be granted bail. There was also no evidence that he might attempt to harm himself while awaiting trial.
Certainly therefore, from the psychiatric point of view, there are no contra indications to him being out of custody and on bail."
A medical report was also obtained on behalf of the prison medical services from Dr J C Sinclair, senior registrar in forensic psychiatry. It is dated 12 March 1992. Dr Sinclair stated that she had interviewed the applicant "On 15.8.91, 13.9.91 and 19.12.91". She had read the prison medical notes and statements and depositions. In setting out the family history, Dr Sinclair noted that the applicant's brother, Graham, had been killed while on active service in Northern Ireland. She stated that the applicant was aged 17 at the time, though in fact he was aged 11. Dr Sinclair stated that there was no known family history of psychiatric illness.
Dr Sinclair described the applicant's school career as told to her. He had enjoyed being at school and felt that he made friends fairly easily. He had studied Yacht Design and Construction at Southampton Technical College and had obtained a City and Guilds diploma in yacht design. For nine years he had been a crew member on large private yachts for much of the time acting as first officer or navigator. He had set up a business exporting food from Britain for sale to English members of the yachting community in the South of France. The business had not flourished and the shop had been closed in January 1991. In May and June 1991 he had spent a few weeks in the North of France with friends having a rest from his business concerns.
Dr Sinclair recorded that the applicant had become depressed following the death of his brother in Northern Ireland. The applicant had described himself to her "as generally calm but with a short temper". He stated that he drank alcohol "very occasionally". He had returned to England in July 1991 with the aim of sorting out his business affairs with the help of his mother. The applicant told Dr Sinclair that he was not over-worried about money and wanted to wind up the business and get back to a career on boats.
The applicant described to her the events of the night of July 16 1991. He had been out with his girl friend and drunk half a pint of beer. His account was substantially consistent with that he subsequently gave in evidence. At about 3 a.m. he had woken up and decided to go through some papers in his bedroom. He wanted to get rid of the papers he thought the Liquidator should not see and decided to burn them. It was never his intention to start a fire in the house and he denied any attempt or desire to harm any member of his family.
Dr Sinclair stated that at interview the applicant was "co-operative and distressed over events". It was apparent that he had some difficulty sleeping at night. Dr Sinclair continued: "There were no definite signs of a depressive illness and he was not suicidal. However, by the second interview he seemed depressed with poor concentration, waking early in the morning with vivid dreams about the alleged offences. I thought this presentation was consistent with a post-traumatic stress disorder and began him on a course of anti-stress medication to which he responded with improved sleep and better concentration". In Dr Sinclair's opinion, the applicant was fit to plead. She could find "no evidence to suggest that [the applicant] was seriously mentally ill at the time of the alleged offences". She could find "no evidence for psychopathic disorder". Dr Sinclair added that "subsequent to the events of 17 July 1991, Cox had "developed a post-traumatic stress disorder with features of depression and had responded to treatment".
A large number of expert reports have been submitted to the Court. These include reports from four psychiatrists whom it was proposed should give evidence. Three of them were instructed on behalf of the applicant though the reports of one of the three, Dr J O'Grady, were relied on by the prosecution. The fourth, Dr J H Stone, was instructed by the prosecution. The course which the Court decided to adopt was to hear the witnesses de bene esse and then to decide whether to "receive" their evidence under section 23 of the 1968 Act. We considered that only when the opinions of the doctors had been elucidated and explored orally could a decision be taken under section 23.
The doctors considered the evidence given at the trial and background material, some of which was not considered at the trial. The object was to assess the state of mind of the applicant at the time of the alleged offences. As to diminished responsibility, the submission of Mr Nicol QC (neither he nor Mr Owen appeared at the trial) on behalf of the applicant is that the applicant was clinically depressed at the material time. It is not in issue that a person suffering from clinical depression may be suffering from abnormality of mind induced by disease within the meaning of those words in section 2 of the Homicide Act 1957 ("the 1957 Act").
Some of the background material has been mentioned when summarising the report of Dr Sinclair. It is also common ground, on the basis of a report from Professor E R Miles that the applicant had suffered from dyslexia. There was also evidence, based on a report from Ms L Blakemore-Brown that the applicant suffered from Attention Deficit Disorder ("ADD")which may lead to impaired attention and hyperactivity.
Records have also revealed that one of the applicant's mother's brothers suffered from bi-polar affective disorder. The applicant also told one of the doctors that an aunt "may have had periods of depression". There was undoubtedly a tragic event in the family's history in that the applicant's elder brother, who was a highly regarded young man, inside and beyond the family, was killed by an IRA sniper. Threats were also made to the family following that tragedy. In 1979, the applicant was seen by a consultant psychiatrist because he was depressed, particularly about the death of his brother five years earlier. He was prescribed an anti-depressant. There had been no further treatment or medical attendances. There is no doubt that the applicant had substantial business difficulties in the period leading up to the alleged offences.
The doctors also had available a post-trial report from the senior medical officer at Winchester prison, Dr R C Ilbert, dated 15 July 1992. On behalf of the applicant, reliance is placed upon Dr Ilbert's statement that the applicant had "throughout his remand in custody been difficult to assess and something of a closed book". The doctor also commented that, at the beginning of the remand period, it was thought that the applicant could have been a suicide risk "mainly because he was opaque to us". The case on behalf of the applicant is that he was materially depressed at the clinical time but because of his opaqueness the condition went undiagnosed.
Professor M Kopelman reported on 16 December 1998, 11 February 1999 and 18 November 1999. He was thoroughly questioned by counsel, as were the other consultant psychiatrists, and we refer mainly to the oral opinions they expressed in the witness box. Each of the doctors referred to evidence and events which in their view threw light on the applicant's mental condition in 1991.
Professor Kopelman had interviewed the applicant for between 2 and 3 hours. He had considered the papers but he had not read the transcripts of the police interviews. He believed that he was better able to assess the applicant's mental condition in 1991 upon examination in 1998 and 1999 than would have been possible in 1991. At that stage, it would have been difficult to obtain a full history. The applicant was not the easiest of people . That notwithstanding, Dr Sinclair had not excluded the possibility of depression at the material time. It was regrettable that more detailed evidence was not available from a psychiatrist in 1991. Eliciting clinical depression would have been very difficult. It was conceivable that the applicant himself was not confronted with his feelings at that time and did not recognise how depressed he was.
Dr Kopelman relied on the evidence given by Jackie Cox at the trial. While she was steadfast in her evidence that the applicant had attacked her, she acknowledged that he had appeared to be very depressed. She was concerned for him and he was under a lot of stress.
In the opinion of Dr Kopelman, there had been an insidious onset of clinical depression during the year before the alleged offence and the condition had been getting worse. The doctor was trying to explain the applicant's bizarre behaviour and the existence of clinical depression would provide an explanation for very strange behaviour, which was difficult to account for otherwise. The applicant was in a confused state and may have become more confused by inhaling petrol. His memory for the relevant events was patchy and an element of clinical confusion was present. Asked about the evidence of the applicant's girlfriend that the day had been a normal one, Professor Kopelman said that you do not make a diagnosis of depression on the basis of conduct on a particular day and that the condition does not disappear in a day. Features had been gathering over a period of a year and reached a culmination on the applicant's return from Cherbourg. There were predisposing factors including the dyslexia and the ADD which he saw as part of the dyslexic syndrome. The problems with drink which the applicant had had were a result of the clinical depression and not the other way round. Professor Kopelman said that he had never been of the view that the defence could argue for automatism.
Professor Kopelman was later recalled because a member of the Court had put to another witness the diagnostic criteria and guidelines which have been published with respect to mood affective disorders. The professor had not previously referred to them and his reaction was that they were useful for students preparing for the examinations and for lawyers examining medical witnesses. Nevertheless, when confronted with them, he expressed the view that applying the criteria to the symptoms, as he believed them to have existed, showed at least a "moderate" degree of clinical depression under the ICD-10 classification and a "major" condition under the American DSM-IV classification. He acknowledged the difficulty in applying the criteria eight years after the event.
Dr D McDonald submitted reports dated 30 April 1998, 24 February 1999 and 1 December 1999. Dr McDonald accepted that in his first report, which incorporated preliminary reports prepared in 1997, there was no mention of diminished responsibility. At that stage the doctor's opinion was that the applicant had been in a state of automatism on 16 July 1991. The applicant's account of the relevant events appeared to Dr McDonald to be extremely blurred and unclear. Even 7 to 8 years after the events, the applicant was still retracting aspects of the account given to the police and at his trial. Dr McDonald said that he was looking for an explanation in an extraordinary bizarre case. He had been disappointed when his medical colleagues could not find evidence of automatism. He now accepted that the defence of automatism was not going to be supported. It had to be put one side. It was impossible to be sure of the applicant's mental state so long after the event.
Dr McDonald now believed that a massive state of anxiety and depression had been present in the applicant. The change of opinion was not a change of tack clinically. The applicant had had a serious disease of the mind over many years. When interviewed in 1997 to 98, there was something childlike about the applicant. The disease had not suddenly hit a 28 year old man. A depressive illness had to persist over time.
This depression was one which had not shown as depression. The applicant had learnt to present himself as a happy likeable person. He had been practised from childhood at covering up thoughts and feelings and presenting himself in an acceptable way. His own account of events and his prior state of mind could not be relied on. He had lived on denial and rationalisation and still believed the fire to have been an accident. The apparently happy, helpful, amenable person at Cherbourg and on return home hid a very depressed self.
Dr McDonald referred to the difficulty, expressed in his first report, of interviewing the applicant. He stated: "I found my interviews with Julian to be among the most tedious I have had to conduct although he was most pleasant and co-operative and indicated a good verbal intelligence; but he had a `wooden' way of talking, with a poverty of facial and tonal expression. I did not sense a flowing dialogue. Lack of subtle and intuitive `pick-ups' between us made it hard work". Dr McDonald accepted that the difficulties he there described are something different from the `closed book' and `opaqueness' mentioned in the report of the senior medical officer.
Dr McDonald accepted that his approach involved rejecting the applicant as a reliable rapporteur both of the events of July 16, 1991 and of the period leading up to that night. In the doctor's opinion, the applicant had become utterly overwhelmed by an agitative depressive state. He had attempted to shrug off his mounting problems.
As to intent, Dr McDonald's assessment, like that of the jury, was that the necessary intent had been proved. In the scientific evidence and the evidence of Jackie Cox, there was compelling evidence of an intent to kill and to cause damage.
Dr J O'Grady reported on 12 October 1998 and 24 February 1999. In his opinion, the applicant was not at the material time suffering from an abnormality of mind within the meaning of section 2 of the 1957 Act. He had not found evidence that the applicant was suffering from mental illness. The evidence of events preceding 16 July 1991 did not support the presence of a depressive illness. He accepted that the existence of a depressive illness of sufficient severity would raise the possibility of a defence of diminished responsibility. It was however necessary to establish an abnormality of mind and something more than normal variation, however extreme, of mood changes. While the applicant may have had a predisposition to depressive illness, it did not follow that he had a depressive illness at the material time. He believed Jackie Cox had used the word "depression" to indicate a common human experience rather than indicating a medical condition.
The evidence was that the applicant had not been drinking heavily in the days preceding 16 July. If the depressive illness had been present, symptoms would have persisted when the applicant was not drinking heavily. The evidence of those who knew him did not indicate symptoms of clinical depression and neither did the evidence of the doctors who examined him near the time. The diagnosis of a post-traumatic stress disorder at a time after the events of the night and the subsequent arrest and detention of the applicant did not establish the existence of a depressive illness on 16 July.
Dr J H Stone reported on 5 May 1999. He interviewed the applicant on two occasions for a total of at least three hours. He accepted that the family history of depression increased by a few percentage points the risk of the applicant suffering depression. Having considered the other reports referred to, Dr Stone stated that he could find no evidence that the applicant had ever suffered from ADD or hyperactivity. From the applicant's description of his behaviour on 16 July there was, in the doctor's opinion, no evidence that the applicant was in an altered state of consciousness or that his behaviour was not under his voluntary control. There was also no evidence that he had been suffering from a disease of the mind or from an abnormality of the mind as defined in section 2 of the 1957 Act. To claim that there had been such an abnormality in 1991 was taking speculation a step too far. Though he had been unaware of the applicant's uncle's mental illness, Dr Sinclair's report was important. It was very important to see the person as soon as possible after the relevant events. If the applicant had been seriously depressed at the material time, that would have been evident to Dr Sinclair at the time of his interviews. Moreover, the applicant had been interviewed for 3 hrs 50 minutes by Dr Wright on behalf of the defence. The first interview had been only thirteen days after the event. While the report had been obtained for the purpose of a possible grant of bail, Dr Wright, a very experienced psychiatrist, expressed a firm conclusion as to the applicant's general mental state. The early medical notes did not suggest that the applicant was particularly depressed.
Dr Stone considered the evidence as to the condition and activities of the applicant during the years and weeks before July 1991. He did responsible work on yachts including as bosun and skipper. That would require a high level of function. He also taught people to sail which would require a good level of function. The evidence of Madame le Grande suggested that during his three months in Cherbourg shortly before 16 July the applicant had carried on a number of functions. That level of function was inconsistent with the presence of a depressive illness. The deterioration in function is a crucial part of a depressive illness. The illness would have been pervasive and not variable from day to day. Dr Stone referred to the statement in ICD-10 (F 32.1) that "an individual with a moderately severe depressive episode will usually have considerably difficulty in continuing with social, work or domestic activities".
From the applicant's account, and that of others, there were no symptoms of alcohol withdrawal on the day of the alleged offences. Moreover, even if it had been present, the half pint of beer drunk shortly before the tragic events would have alleviated the symptoms. (That claim was not disputed on behalf of the applicant.) Dr Stone made the further point that when diminished responsibility is raised as a possibility, one looks for a demonstrable connection between the action taken and the suggested depressive illness. He could find no connecting reason.
The doctors all accepted that it was difficult to assess in 1998 or 1999 the mental condition of a person in 1991. Diminished responsibility arises once an intent to kill has been proved and we consider first the submission that the background material now available throws doubt upon the jury's conclusion on the evidence that the intent was present. That submission was not one supported by Dr McDonald. Mr Nicol made the point that if the jury had concluded that the intent to kill had been formed not at the outset of the burning operation, but at a later stage, they might not have reached that conclusion had they had the benefit of the further medical evidence.
We cannot accept those submission. The evidence as to intent was overwhelming and could not have been disturbed by further evidence as to medical history. We have in mind the conduct of the applicant taking the amount of petrol he did into the house at night, the pouring of petrol into plastic bags, the indications of a pool of petrol on the landing outside Jackie Cox's bedroom door, the presence of petrol on the stairs and of the petrol can outside the parents' bedroom door, the throwing of petrol onto Jackie which must have occurred as she came out of her room, the failure of any attempt at that stage to rescue his mother, the following of Jackie Cox out of the house and the attack on her by throwing a heavy garden ornament at her from close range.
As to diminished responsibility, Lord Taylor stated in R v Alhuwalia [1993] 96 Cr App R 133 at 142: "If there is no evidence to support diminished responsibility at the time of the trial, this Court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism". Sofar as relevant to these applications, section 23 of the 1968 Act now provides:
"(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice ... (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to--
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings ..."
The test to be applied was stated in the Divisional Court by Lord Bingham CJ in R v Criminal Cases Review Commission ex p Pearson [1999] 3 All ER 498 at 504A to F and we respectfully agree with it:
"Under s 23 as it now stands, it is plain that the Court of Appeal has a discretion to receive evidence not adduced in the trial court if the court thinks it necessary or expedient in the interests of justice to receive it. The Court of Appeal is never subject to a mandatory duty to receive the evidence, but is bound in considering whether to receive the evidence or not to have regard in particular to the specific matters listed in sub-s (2). The Court of Appeal is not precluded from receiving fresh evidence if the conditions in sub-s (2)(a), (b), (c) and (d) or any of them are not satisfied, but the court would for obvious reasons be unlikely to receive evidence which did not appear to it to be capable of belief, or which did not appear to it to afford any ground for allowing the appear, or which would not have been admissible in the trial court. The Court of Appeal would ordinarily be less ready, and is some cases much less ready to receive evidence which the appellant had failed without reasonable explanation to adduce at the trial, since receipt of such evidence on appeal tends to subvert our system of jury trial by depriving the decision-making tribunal of the opportunity to review and assess the strength of that fresh evidence in the context of the case as a whole, and retrials, although sometimes necessary are never desirable. On any application to the Court of Appeal to receive fresh evidence under s 23 in an appeal against conviction, the question which the Court of Appeal must always ask itself is this: having regard in particular to the matters listed in sub-s (2), does the Court of Appeal think it necessary or expedient in the interests of justice to receive the new evidence? In exercising its statutory discretion to receive or not to receive fresh evidence, the Court of Appeal will be mindful that its discretion is to be exercised in accordance with the statutory provision and so as to achieve, in the infinitely varying circumstances of different cases, the objective for which the discretion has been conferred. The exercise of this discretion cannot be circumscribed in a manner which fails to give effect to the statute or undermines the statutory objective, which is to promote the interests of justice; the court will bear in mind that the power in s 23 exists to safeguard defendants against the risk and consequences of wrongful conviction."
Lord Bingham cited with approval an analysis of this Court's role under section 23(2) in R v Arnold [1996] 31 BMLR 24. That was a case where diminished responsibility was not raised at the trial but it was later sought to adduce medical evidence on the issue. Hobhouse LJ stated (at p 36):
"Ultimately the most important consideration must always be whether the proffered evidence affords a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interests of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was unsafe."
Fatal to the application in that case, as recognised by Lord Bingham, "were the facts that by the time of the trial all the material relevant to the defence of diminished responsibility had been available, that the medical opinions inevitably depended on the factual evidence of the appellant and that she had throughout been unwilling to provide an adequate account of the facts on which such opinions could be based".
Hobhouse LJ stated, at p 48,:
"This is a case, unlike others, where factual evidence would be necessary to support the defence. Until such factual evidence has been given, there is no basis for the admission of the opinion evidence. The decision not to adduce the factual evidence at the trial, no doubt because it either was not available or would not have been credible, would have meant that the opinion evidence could not be adduced. Further the opinion evidence now tendered relies upon factual statements which are still not supported by any admissible evidence. As regards the question of credibility, no question of the credibility of Dr Jones and Professor Bluglass arises, but there are fundamental questions whether the statements upon which they have proceeded are worthy of any credit at all. Since those statements are not tendered in any admissible form it is not necessary to go beyond that. But it is clear that, if a defence of diminished responsibility was to be run, a critical issue would be the creditworthiness of the appellant herself and it is clear beyond doubt that she is not a person who could be treated as a credible witness in matters which affect her own interest in the present matter. It will, accordingly, be appreciated that the evidence the subject matter of the appellant's application under s 23 does not afford any ground for allowing her appeal. If received it would do nothing to show that the convictions were unsafe. We repeat, diminished responsibility is exceptional in that it raises an issue upon which the defence has the burden of proof. The appellant has had the opportunity to deploy before the court admissible fresh evidence which would make such a defence arguable and give a prospect of it being accepted by a jury. She has not placed such evidence before the court and it follows that there is no basis for treating the jury's verdict as unsafe. By a parity of reasoning she has failed to persuade us that it is necessary or expedient in the interests of justice to admit any further evidence. We have not applied the dictum of Fenton Atkinson LJ in R v Dodd, repeated in R v Melville, that the case for diminished responsibility must be `really overwhelming' before an appellant can be allowed to raise it for the first time in the Court of Appeal. Had we come to the conclusion that the convictions were unsafe, we would have allowed the appeal; that is that the 1995 Act requires."
The present case has in common with Arnold the fact that diminished responsibility was not raised at the trial and that no question of the credibility of Professor Kopelman and Dr McDonald arises. It is different in that it is claimed that there was no unwillingness on the applicant's behalf to provide an adequate account of the facts on which the medical opinions of Professor Kopelman and Dr McDonald could be based but that the nature of the applicant's illness, a "depression which did not show as depression", was such that the psychiatrists who examined the applicant at the time failed, either by reason of lack of skill or by reasons of the extreme difficulty of diagnosis, to ascertain it.
The Lord Chief Justice concluded his analysis in Pearson by stating:
"From that lengthy recital of authority, it is plain that all applications to adduce fresh evidence under s 23 turn on their own peculiar facts. That is as it should be, since the exercise of a discretionary power must be conditioned by the merits of the case before the court or as the court perceives them. Since no two cases reaching the Court of Appeal are the same, it will often be hard, if not impossible, to predict with confidence how the court will perceive the merits of any given application in a borderline case, a point which obviously bears on the discharge of the Commission's task under s 13 of the 1995 Act. Judicial reactions, being human, are not uniform, Wisely and correctly, the courts have recognised that the statutory discretion conferred by s 23 cannot be constrained by inflexible, mechanistic rules. But the cases do identify certain features which are likely to weigh more or less heavily against the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision-making faculties are unimpaired not to advance before a trial jury a defence known to be available; evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence; expert evidence based on factual premises which are unsubstantiated, unreliable or false, or which is for any other reason unpersuasive. But even features such as these need not be conclusive objections in every case. The overriding discretion conferred on the court enables it to ensure that, in the last resort, defendants are sentenced for the crimes they have committed and not for psychological failings to which they may be subject."
In this case, it is sought to adduce evidence of mental impairment prepared years after the events. Mr Nicol submits however that the defence of diminished responsibility was not know to be available at the trial, that the proposed evidence is not contradicted by but is harmonious with evidence available at the time and that the factual premises on which the evidence is based are not unsubstantiated, unreliable or false. Moreover, a defendant who denies the intent which the prosecution must prove before a defence of diminished responsibility can arise is not thereby deprived of the right to claim diminished responsibility in the alternative. The applicant must not be punished for not coming to terms with the jury's finding against him.
While the factors to which this Court is to have particular regard under section 23(2) of the 1968 Act do not, as was recognised in Arnold, neatly cover situations in such as the present, the approach to be adopted emerges clearly from Arnold and from Pearson. We recognise that aspects of the applicant's background had not emerged at the time of trial, though in the circumstances we find no failure on the part of the applicant's then legal advisors. In considering the proposed evidence, however, the following factors are in our judgment material. Some of them overlap each other:
(1) The weight of medical evidence is that a clinical depression capable of being an abnormality of mind within the meaning of section 2 of the 1957 Act is not something which comes and goes from day to day but is pervasive.
(2) In that context, there is strong evidence that the applicant had been performing at a good level of function during the months and years before July 1991.
(3) While the applicant's sister, Jackie Cox, did describe the applicant as "very depressed" on 16 July, his evidence and that of his girlfriend indicated that he was in good spirits. He described his walk with his sister and nephew on 16 July as one of the happiest they had had. Madame le Grande gave similar evidence of his state of mind in Cherbourg.
(4) Notwithstanding difficulties with diagnosis, and some lack of information, we cannot accept as a real possibility that both Dr Sinclair and Dr Wright failed to diagnose clinical depression if it was present. They were aware of the bizarre nature of the applicant's alleged conduct. They were plainly aware of the legal issues which could arise. Had there been a possibility of a defence based on the existence of clinical depression, it would have been raised.
(5) As Dr McDonald recognised, acceptance of the thesis that the applicant was suffering from clinical depression in 1991 involves disbelieving the evidence he and others gave about events at and before that time.
(6) The lapse of time before the interviews by Professor Kopelman and Dr McDonald which led to the issue of diminished responsibility being raised is plainly a material factor.
(7) The first opinion of Dr McDonald was that the applicant was in a state of automatism at the time of the alleged offences, a view which even now he is unwilling to abandon. We do not find convincing his conversion to the diagnosis of clinical depression first advanced by Professor Kopelman.
(8) The doctors in 1998 and 1999 inevitably are seeking to reconstruct events and conditions of mind as they were in 1991. Having regard to persuasive evidence as to events at that time, we have not found at all convincing attempts at reconstruction which involve a conclusion that the applicant was clinically depressed.
(9) We found the opinions of Dr O'Grady and Dr Stone convincing and consistent with the contemporaneous statements and events. We accept that the level of function displayed is highly relevant to the question whether a depressive illness exists.
(10) This was not a case where there was a deliberate attempt, for tactical or other reasons, to conceal a defence of diminished responsibility. However, we cannot conclude that the applicant, who knew what was at stake, and the doctors, were so lacking in insight that, had clinical depression been a factor, or a possible factor, it would have failed to emerge during investigations in 1991 and 1992.
(11) When, not at their initiative, the published diagnostic criteria were raised with Professor Kopelman and Dr McDonald, their opinions that the criteria for clinical depression were present, though they may accord with what the applicant told them in 1998 and 1999, does not accord with the contemporaneous evidence.
For those reasons, this Court does not think it necessary or expedient in the interest of justice to receive the evidence of Professor Kopelman and Dr McDonald and the application to call further evidence is refused.. This is not to cast doubt upon the honesty with which they hold their opinions. The proffered evidence does not in our judgment afford any ground for allowing the appeals or any basis for concluding that the convictions were unsafe. Having considered the reports of the doctors, and heard their oral explanations and opinions, we have no doubts about the safety of these convictions. Since the applications for an extension of time and for leave to appeal against conviction depend upon the success of the application to call further evidence, they too must be refused.