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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 >> Smith, R v [2002] EWCA Crim 840 (19 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/840.html Cite as: [2002] EWCA Crim 840

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		Tuesday 19th March 2002

19th March 2002
1. LORD JUSTICE JUDGE: Charlie Smith was formerly known as Vincent Richard Smith. He is now 42 years old. On 7th October 1977 in the Crown Court at Northampton before a jury and Melford Stevenson J, he was convicted of murder and sentenced to life imprisonment. He was 18 years old. At that date that was the appropriate sentence to be imposed him.
2. There was then, and there is now, no dispute that the appellant was guilty of homicide. The issue then, and now, is murder or manslaughter. At trial the jury was directed to consider manslaughter on the grounds of provocation. The issue of diminished responsibility was not canvassed.
3. The issue on this appeal, following a referral by the Criminal Cases Review Commission ("CCRC"), is diminished responsibility. There is a good deal of medical evidence before us which was not before the Crown Court at Northampton.
4. Dealing with the facts of the homicide, this occurred in the early hours of 30th March 1977. The appellant stabbed a man called Nicholas Feodorous in the throat and he died of the wounds inflicted on him. The case against the appellant was largely based upon two statements which he had made to the police shortly after the killing.
5. He told the police in a statement he had made on 2nd April 1977 that, following absconding from Borstal some six weeks earlier, he had hitched a lift towards Oxford. He was dropped off and walked into Oxford itself. At the railway station he saw the victim who he said was homosexual. He then decided to sit on a park bench by the riverside in Oxford until very much later. He intended to go back to London.
6. He suggested that Feodorous had started chatting to him. After about a half an hour or so of general conversation, Feodorous had tried to "touch him up", in effect touching him on the bottom. The appellant told Feodorous that if he persisted he would give him what was described as a "bang in the mouth". Feodorous was undeterred. The appellant hit him in the face. Every time he struck him the appellant thought that Feodorous must be "kinky or something" , because his immediate response was to keep on trying to touch him.
7. After a while, something like quarter an hour, the appellant lost his temper and "steamed" into Feodorous. He kicked him and punched him in the head. He dragged him off the bench, kicking him as he went along. He then tried to push him through a gap in the fence towards the river; that failed. He left him on the ground. As he turned away, Feodorous ran up behind him, shouting. As the appellant turned round Feodorous grabbed him by the throat. With that the appellant pulled out a pen knife and stabbed Feodorous several times in the back of the legs, trying to cut the back of his legs out. Feodorous let go of him and fell down on his back. The appellant jumped on top of Feodorous and started to stab him in the throat.
8. After three or four blows the appellant realised "what I was doing and had gone too far". He threw the knife into the river. He took some money from Feodorous's trousers and returned to London. On his return to London he then made his way back to the Borstal from which he had absconded in Feltham and gave himself up, telling one of the officers what he had done.
9. In a second statement made towards the end of the same month, on 29th April 1977, the appellant described how he had followed Feodorous to the park intending to rob him there. In this statement he described that he had for some time been harbouring violent fantasies:

"I've always been thinking about killing someone. It has always appealed to me to watch someone die, to really injure someone. So on seeing this bloke on the station I said it was going to be him."

10. He said that he had pulled out a gun and pointed it at Feodorous demanding money. Feodorous handed over money. The appellant punched him hard enough to cause him to fall back on his seat. He then struck Feodorous a couple of times with the butt of the gun on the head. He then stabbed him in the head before sitting down next to him, lighting a cigarette and having a drink. Then he started to laugh, taking a swig from a bottle which Feodorous had on him, and then laying into him, kicking punching and stabbing him. He then picked up a brick and started to smash Feodorous's head with it. He became fed up with this, ceasing to find it amusing. He tried to drag Feodorous through a hole in the fence and throw him in the river. He then stabbed him in the hands and legs and left him, throwing the gun away.
11. In his evidence at his trial the appellant's case to the jury was that he had described the true facts of what had happened in his first statement, a case of provocation in the sense that on that account Feodorous had been touching him up and making very unwelcome advances. He told the jury that the account in his second statement was not true. By asserting that the facts in the second statement were untrue, he was, of course, undermining any realistic possibility of a conviction of manslaughter on the grounds of diminished responsibility, because if that statement was not true, then he had not been harbouring violent fantasies, and so on, as described in the second statement.
12. In relation to the medical evidence then available, a report from a distinguished psychiatrist, Dr Peter Noble, concluded that the appellant was:

"... suffering from a severe and persistent disturbance of personality which is associated with seriously and irresponsible and abnormally aggressive conduct. He is suffering from psychopathic disorder within the meaning of the Mental Health Act. The psychopathic disorder would have the effect of diminishing the responsibility for his actions. It is impossible to form a clear view of his state of mind at the time of the offence. I thus do not feel able to quantify the extent to which his responsibility was impaired at the time."

13. A psychiatrist who prepared a report for the prosecution agreed that the appellant suffered from a psychopathic type of personality amounting to abnormality of mind, but he was unable to conclude that this was of sufficient degree to diminish his mental responsibility. Accordingly, there being no medical evidence to support it, and the appellant having, in effect, withdrawn his second statement from the police, diminished responsibility was not canvassed.
14. The judge summed the case up to the jury. The jury convicted the appellant of murder.
15. The case has not been referred to this court on the basis of any misdirection by the judge. The reference arises in an unusual and stark way.
16. After the appellant had started to serve his sentence, some two years or so later, in July 1979, he killed his cell mate. The precise details of that killing need no recitation in this judgment. It was a very violent death. In 1980 at the Central Criminal Court, on the basis of an agreed medical evidence, the appellant was convicted of manslaughter of his cell mate on the grounds of diminished responsibility. He was made subject to an order under the Mental Health Act 1959 and a restriction order, under what was then section 65, without limit of time was imposed.
17. The evidence available to the Central Criminal Court has now been made available to this court. It is uncontroversial. We shall admit it.
18. In a report dated 19th November 1979 Dr Noble concluded:

"I find no reason to alter the diagnosis given in my earlier report. This young man suffers from a serious psychopathic disorder ... a disorder of the mind such as to substantially impair his mental responsibility for his actions at the time of the killing."

19. He continues in a letter:

"With hindsight it is of course regrettable that he was not sent to Broadmoor under section 60/65 at the time of his original conviction. My view at that time was that he was suffering from psychopathy within the meaning of the Mental Health Act and that his responsibility was substantially diminished."

20. Dr Le Couteur was a consultant forensic psychiatrist working at Broadmoor. He referred to the defence run at trial, provocation, and the appellant's reliance on his first statement to the police which excluded references to premeditation, or the possible enjoyment of involvement in a killing. Having referred to the second statement, Dr Le Couteur concluded that the appellant had been suffering from psychopathic disorder for many years.
21. The Crown instructed another consultant forensic psychiatrist, Dr Jacobs. In his report, dated 18th January 1980, he indicated that in his opinion the appellant was suffering from a severe and persistent disturbance of personality with seriously irresponsible and abnormally violent conduct. He was suffering from a psychopathic disorder. On account of that condition his mental responsibility was substantially diminished.
22. It was noted by Dr Jacobs that in the context of the second killing, the death of the cell mate, the appellant had been infuriated, according to the appellant's account, because the cell mate reminded him, the appellant, of his adoptive mother whom he hated.
23. We attach considerable importance to this evidence. It is very proximate to the conviction which we are now considering. It is plain from the evidence of all three psychiatrists that what they were describing was a persistent, and we take that to mean long standing, condition of psychopathy.
24. On 22nd February 1980 the appellant was admitted to Broadmoor under the transfer processes then provided by section 72 of the Mental Health Act 1959.
25. We can take the narrative account of the medical evidence hereafter, fairly shortly. In August 1996 Dr Bowden, a consultant forensic psychiatrist from the Bethlehem and Maudsley National Health Service Trust, concluded that the persistence, to which reference has already been made, was a:

"... central part of the definition of personality disorder. The psychological factors, or state of mind, which prevailed at the time of the second killing must have been present at the first. The psychiatric evidence at the first trial was flawed."

26. After Dr Bowden's retirement Dr Somekh, also a consultant forensic psychiatrist, took an interest in this case. In June 2000 he described a very substantial body of objective material by a number of professionals in the field who had observed the appellant, both before the first killing and afterwards, all of which supported the overall diagnosis of psychopathic disorder. In his opinion there was no doubt that the severity of the disorder of emotional development was present at the time of both killings.
27. The Crown has invited Dr Joseph, a consultant forensic psychiatrist from St Mary's Hospital, to prepare a report on the appellant. He is not able to refute the opinion of Dr Bowden or Dr Somekh, agreeing with them, as he does, that the appellant was suffering from abnormality of mind at the time of the first killing. We will refer to the first part of his second conclusion in his own words:

"It is clear from the material that I have read that Mr Smith suffers from a psychopathic personality disorder, the features of which have been outlined in the report of Dr Bowden dated 12th August 1996. His psychopathic disorder can be classified as an abnormality of mind arising from inherent cause within the terms of section 2 of the Homicide Act 1957.

2. Mr Smith has suffered from a lifelong disorder of personality and he was suffering from such a disorder at the time of the first killing."

28. Dr Joseph does not feel himself able to confirm that there was a substantial impairment of responsibility such as is required by section 2 of the Homicide Act 1957, but equally he feels unable to advance any opinions supported by reasons to lead us to doubt the conclusions reached by Dr Bowden in 1996 and Dr Somekh in his latest report.
29. The Crown's position on this appeal can be summarised in the skeleton argument prepared by Sir Timothy Cassel QC. If evidence of this disorder had been put forward at the 1977 trial, the Crown cannot exclude the possibility that a diminished responsibility defence would have been successful. We agree with the Crown's analysis. The case which we are considering now is very different to the case which was considered by the jury at Northampton. In particular we have the advantage, which they did not have, of the medical evidence which in reality is all, to use colloquial language, one way. If the evidence presently available to support diminished responsibility, and, let us emphasise, available to support diminished responsibility in relation to the second killing, had been available at the trial in Northampton, we think it likely, given the context of the second statement and the medical evidence which would have been available, that the appellant would successfully have established diminished responsibility. In those circumstances, there is nothing to be gained by seeking to elucidate from the psychiatrist why it was that the appellant thought fit to abandon his second statement, and whether or not that may itself have been a manifestation of his condition.
30. In the circumstances that we have outlined, the conviction for murder in 1977 must be quashed. In place of that conviction we shall substitute a conviction for manslaughter on the grounds of diminished responsibility.
31. We then have to consider the appropriate sentence. We have further medical reports on that issue not only from Dr Somekh but also from Dr Treasaden, both are qualified for the purposes of the Mental Health Act. It is clear that arrangements for the appellant's continued reception in Broadmoor are available in order that he may be treated for psychopathic disorder. It is also clear that to protect the public from serious harm from the appellant we should make an order under section 41 of the Mental Health Act which will be unlimited in time.
32. Accordingly, the sentence on the appellant is an order under section 37 of the Mental Health Act 1983, together with the section 41 order that we have indicated.