No: 200107075/Z3 
Neutral Citation Number: [2003] EWCA Crim 1173
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Wednesday, 26th March 2003
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE ANDREW SMITH 
 
MR JUSTICE LEVESON 

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R E G I N A 

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MF 
 
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MR R SMITH QC & MR C QUINLAN appeared on behalf of the APPELLANT
MR J CAUDLE appeared on behalf of the CROWN
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J U D G M E N T
1.	THE VICE PRESIDENT:  On 10th October 1997 at Chelmsford Crown Court, following a trial before Thomas J, the appellant was convicted of murder and sentenced to detention at Her Majesty's Pleasure.  On 24th July 1998, the Full Court, differently constituted, dismissed his appeal against conviction.  That appeal was based on the jury's alleged failure to understand the judge's direction on provocation, as evidenced by a note which they sent, whose doubts, it was said, the judge's supplementary directions did not eliminate.
2.	He now appeals against conviction following a reference made in December 2001 by the Criminal Cases Review Commission. The reference has been made on the basis that, as a result of investigations carried out by the Commission and, in particular, their procuring of a psychiatrist's report from Dr Misch, there is doubt about the safety of the conviction because of diminished responsibility.
3.	Diminished responsibility was not run as a defence at the trial, nor did the jury hear any evidence as to the effect of the sexual abuse to which, in a moment, we shall come on the appellant's mental state.  The defence concentrated, at trial, on provocation and self-defence.
4.	The facts were these.  The deceased was a 75 year old man, who was a friend of the appellant's grandfather and he became a regular guest at the home where the appellant lived with his parents.  He also went on holiday with the appellant and his parents and grandfather, in the summer of 1996, and he spent Christmas 1995 and Christmas 1996 with the family.
5.	His body was found a little after 10 o'clock on 7th February 1997.  He had died as a result of severe head injuries.  Initially the police treated the death as accidental, having apparently resulted from falling against a mirror, with a consequential loss of a considerable amount of blood.  But, less than a week after his body was found, the deceased's passport, a scarf and a plastic bag containing clothing and other documents belonging to him were found on an area of waste ground, about 10 minutes from where the deceased had lived.  The documents included an envelope which had a fingerprint in blood on it, and there was also, with the various items recovered, a metal cosh.  In consequence, on 13th February the appellant, who was then 17, was arrested.
6.	He was interviewed the following day and, at first, denied any involvement with the death and denied having visited the deceased at the relevant time.  He described the deceased as a generous, kind and loving person and expressed a hope that the police would find his killer.
7.	Thereafter, the police having found evidence which connected the appellant to the death, the appellant made a written statement in which he said that the deceased, whom he regarded as an honorary grandfather, had indecently assaulted him on two occasions in November 1996.  He said that he had gone to see the deceased on 6th February to talk to him about the assaults, but the deceased had tried to touch him again and the appellant had lost control and hit him.  He had not intended to kill him.
8.	He declined to add, in interview, to the terms of that written statement, the accuracy of which he confirmed.
9.	As a result of further investigations by the police, it emerged that the deceased had indecently assaulted two boys, respectively 7 and 8 years old, who were brothers.  It was accepted at the trial that, prior to the killing, the deceased had made sexual advances towards the appellant. It was the prosecution case that the killing was a revenge attack because it was said that the appellant blamed the deceased for the failure of a heterosexual relationship and for his fears that he might be homosexual.
10.	The pattern of bloodstaining on the walls was consistent with a sustained attack involving many blows with a severe degree of force.
11.	The prosecution claimed that, having killed the deceased, the appellant stole property to make it look like a robbery which had gone wrong.
12.	There was an issue between prosecution and defence as to the circumstances in which the cosh came to be in the appellant's possession at the time of the killing.  He said that it was used by him for killing fish and it merely happened to be in one of the garments which he was wearing.  The explanation, in relation to the cosh, was not given in the course of interview but emerged subsequently.  Similarly, the appellant's description of the deceased seizing a scarf round the appellant's neck, which he gave in evidence before the jury, was not mentioned at an earlier stage in interview.
13.	The defence was that the appellant did not intend to kill the deceased or cause him really serious harm and, in any event, he was provoked.  He had gone to speak to the victim about the previous sexual assaults and had lost control in the face of the victim's further advances towards him. The appellant gave evidence that he had borrowed £5 from the deceased, in November 1996. On that occasion the deceased had unzipped the appellant's trousers and masturbated him. When he had returned a week later, to give the money back, he had again been touched by the deceased who told him he was a lovely boy.
14.	The appellant's evidence was that he was reminded of those indecent assaults when at Christmas, in 1996, he saw the deceased with his arm around a 6 year old boy.
15.	The evidence from the appellant was that, on the occasion of the visit which lead to the deceased's death, he had gone there to tell the deceased that the sexual advances must stop.  While he was there the deceased had made indecent gestures and expressions to him.  Having inflicted the injuries to which we have referred, the appellant said he had panicked and seized items from the victim's home and dumped them on the waste ground where they were found.  It was only when the deceased had approached him in an indecent manner that he had realised that the cosh was in his pocket.  The appellant was of good character.
16.	There are two grounds of appeal, one of which has been pursued.  The second ground relates to the issue of provocation and the impact upon that of the evidence of Dr Misch.  The Commission were unimpressed by that matter, and did not refer the case to this Court on that ground.  The ground which has been pursued by Mr Richard Smith QC, on behalf of the appellant, who did not appear at the trial, is that the fresh evidence from Dr Misch elicited by the Commission should be admitted by this Court and, if admitted, must lead to the quashing of the conviction for murder.
17.	The conclusion expressed by Dr Misch in his report for the Commission on 28th of March 2001, Dr Misch being a consultant adolescent forensic psychiatrist, approved under section 12 of the Mental Health Act 1983, is, in paragraph 1, in these terms:
"It is my opinion that Michael Frost was suffering from a depressive disorder and adjustment disorder and major symptoms of post-traumatic stress disorder during the period just preceding the index offence and at the time of the killing [of the deceased]. These disorders will have represented an abnormality of mind within the terms of the Homicide Act 1957 and will have substantially impaired Michael Frost's perceptions, his emotional responses, his ability to form a rational judgment, and ability to exercise control over his impulses to carry out physical acts.
It is my opinion that at the time of the offence, Michael Frost's mental responsibility was substantially impaired." 
In the light of that report and the reference to this Court by the Commission, the Crown Prosecution Service have obtained their own report from a consultant child and adolescent forensic psychiatrist, that is Dr Bester, whose report of 27th January 2003 is before the court in circumstances to which we shall shortly come.  Dr Bester's opinion in paragraph 11.2 of his report is:
"It is my opinion that there is significant evidence that Michael Frost was suffering from an adjustment disorder and symptoms of post-traumatic stress disorder and depression during the period just preceding the index offence and at the time of the killing of [the deceased].  These disorders constitute an abnormality of mind within the terms of the Homicide Act 1957 and will have substantially impaired Michael Frost's perceptions, his emotional responses and his ability to form a rational judgment.  I therefore agree with Dr Misch that at the time of the offence, Michael Frost's mental responsibility was diminished."
The prosecution sought from Dr Bester further clarification of his views and that is provided in his report of 5th March 2003. Paragraph 1.2 of that report is in these terms:
"I have been asked to provide for this report my further opinion of Michael Frost's failure to make full disclosure of the alleged abuse prior to trial. At his trial, the appellant advanced a defence of provocation, and the issue of diminished responsibility was not raised on his behalf.
1.3 The Crown wished to be satisfied that, on an objective assessment, the appellant's claim of significantly greater abuse than was alleged at his trial, is likely to be true, rather than to have been subsequently advanced in the hope of achieving the reduction of his conviction from murder to manslaughter..."
18.	Dr Bester's opinion is expressed in these terms in paragraph 4.1:
"In my view, the gradual emergence of detail of the abuse is entirely consistent with the history of sexual abuse and of a traumatic reaction to that abuse. Particularly, in a situation that is so taboo-ladden, he would have been unable to confide in anyone prior to or during the period of abuse, and it is more likely that details would emerge much later and during sensitivity therapy, helped by institutionalisation and learned helplessness. It would in all likelihood, have been difficult to make disclosures to his own lawyers, due to gender and age issues and to his mental state, at the time of trial. I do not know whether the single psychiatrist who saw him shortly after the offence had specific skills in this area, but the assessment and treatment of young offenders is a highly specialised field and requires specific training and understanding of the way adolescents present with psychopathology in these situations. The response to trauma is particularly complex in this group.  The advancement of the defence of diminished responsibility at the time would have been a matter for his lawyers, and not for a 17-year-old defendant.  I note from correspondence in the bundle that they did not feel at the time that such a defence was 'technically' an option.  I do not know why further and more specialised psychiatric evidence was not sought."
At 4.4, Dr Bester said this:
"I do not consider there is any clinical basis for doubting the appellant's most recent accounts. I would not agree that the defendant necessarily had the 'opportunity' to give such an account at the time of trial as he appears to have been traumatised and incapacitated, indeed, diminished by his mental state, most likely during the trial as well as at the time of the offence."
It suffices to say, in relation to the description, over a period of time, of the abuse to which the appellant had been subjected by the deceased, that there was more in evidence given in the course of the trial than had been given by the appellant in the interviews to which we have already referred. Soon after the trial, there was a further account given to a psychologist at Aylesbury Prison, and, in the intervening period between then and the preparation of the reports of Dr Misch and Dr Bester, to which we have referred, the appellant gave an account of more frequent and graver sexual abuse by the deceased than had been given at the time of the trial.
19.	The submission which is made by Mr Smith, on behalf of the appellant, is that the reports from Dr Misch and Dr Bester from which we have quoted the crucial passages should be received by this Court because it is necessary or expedient in the interests of justice, in the terms of section 23(1)(c) of the Criminal Appeal Act 1968.
20.	As section 23(2) directs this Court, we have regard, in particular, to whether the evidence is capable of belief, affords a ground for allowing the appeal, would have been admissible in the proceedings and whether there is a reasonable explanation for the failure to adduce the evidence at the trial.  As it seems to us, the first three of those specific considerations to which the statute directs the court's attention give rise to no difficulty of any kind.
21.	So far as the failure to adduce evidence of this kind at trial is concerned, Mr Smith points out that the only report from a psychiatrist, available at the time of trial, was that from Dr Abou-El-Fadl, dated 12th March 1997.  There is no reason to believe that he has special qualifications in relation to adolescent psychiatric matters.  What he said, in the report which was obtained at the behest of junior counsel for the defence, soon after the appellant had been arrested, was that the appellant was at the time of the offence deeply troubled by the deceased's sexual advances:
"He probably felt incredibly angry towards him, realising that his generosity was designed to make way for the sexual advances.  The points in support of this possibility are the age and the simplicity of the defendant, together with his lack of sexual experience. His heavy use of cannabis during the time which preceded the offence may have rendered him vulnerable to affective disturbances." 
The doctor went on to say that the issue of provocation might need to be addressed by the court and he concluded his report with these observations:
"I have based my findings in this report on what the defendant had told me in addition to what his mother conveyed on the telephone.  I might be able to elaborate more when further details are available."
That doctor was never asked to elaborate more.
22.	It is apparent, from the responses to the commission of those who legally represented the appellant at his trial, that provocation and self-defence were the issues which were run.  It is apparent that the question of diminished responsibility was not raised or discussed with the appellant and, as it seems to us, in consequence, Mr Smith's submission, that this was not a case in which any tactical decision was made at trial not to run diminished responsibility, is well founded.
23.	The other aspect bearing upon the reasonableness of the explanation for not adducing this defence at trial is the appellant's own lack of disclosure, at that time, of the full nature and extent of the sexual abuse to which he had been subjected.  That aspect, Mr Smith submits, does not, in this case, give rise to any suggestion that there has been a development by the appellant, in his own mind, of details which, as now presented, might support a defence of diminished responsibility. In that respect Mr Smith relies upon the conclusions by Dr Bester in his report of 5th March 2003, which we have already rehearsed.
24.	The stance of Mr Caudle, on behalf of the Crown, in relation to the proffered fresh evidence from the two doctors is, first, that he would not resist the application made by Mr Smith under section 23. Secondly, hat he would not wish to challenge, by cross-examination, or otherwise, the views expressed by the two doctors in their reports.  In those circumstances, it seemed to the Court that no useful purpose would be served by hearing oral evidence from either of the doctors, although Mr Smith was prepared to call Dr Misch had the Court so wished.
25.	Furthermore, it appeared to the Court that a reasonable explanation for the failure to adduce the evidence at trial had clearly been provided.  Taking that and the other considerations identified in section 23(2) of the Criminal Appeal Act into account, it seemed to the Court expedient and in the interest of justice, that that evidence should be admitted and it was admitted in written form.
26.	The remaining question is as to the impact of that evidence on the safety of the conviction.  Mr Caudle helpfully accepted that, had it been the case at the time of trial that there had been a report from a properly qualified psychiatrist, eliciting, as may well have been possible, factual material from the defendant capable of sustaining a defence of diminished responsibility, and had such a psychiatrist concluded that such a defence was available to the defendant, the high probability is that, subject to concurrent views having been obtained by the Crown, a plea of guilty to manslaughter on the ground of diminished responsibility would have been accepted by the Crown at trial.  Of course, for the reasons which we have already given, such a question did not at the time of trial arise.
27.	In the light of all these considerations, we have no doubt that the conviction of this appellant, for murder, cannot be regarded as safe.  Accordingly, the appeal is allowed. That conviction is quashed and we substitute for it a conviction for manslaughter on the ground of diminished responsibility.
28.	The only remaining question is as to the appropriate sentence for the appellant in relation that offence.  We indicated to Mr Smith, in the course of his submissions, that we had in mind a period of 7 years' imprisonment.  Mr Smith did not seek to dissuade us from that course.  That is the sentence in relation to manslaughter which we impose. The appellant has already served the equivalent of that sentence.