No: 2003/1358/B1 
Neutral Citation Number: [2004] EWCA Crim 1834
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 8 July 2004
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE STANLEY BURNTON 
 
MR JUSTICE KEITH 

- - - - - - -
R E G I N A 

-v- 

GARY REYNOLDS
 
- - - - - - - 
Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR S LAWS appeared on behalf of the APPELLANT
MR R WHITTAM appeared on behalf of the CROWN
 - - - - - - -
J U D G M E N T
1.	LORD JUSTICE LATHAM:  On 5th November 1987 at the Central Criminal Court, before His Honour Judge Hazan (as he then was) the appellant was convicted of murder and ordered to be detained during Her Majesty's Pleasure.  He was 17 years old at the time.  He appeals against conviction upon a reference by the Criminal Cases Review Commission under section 69 of the Criminal Appeal Act 1995 on the basis that medical evidence now available indicates that he suffers from Asperger's Syndrome which may have substantially diminished his responsibility for the killing of the victim within the meaning of section 2 of the Homicide Act 1957.
2.	The facts of the offence were that at the time the appellant worked in a pharmacist's shop in Bow, East London.  The pharmacist was Miss Anita De Souza.  For some time it would appear that the appellant had had in mind a plan to steal the takings from the shop and then go to France in order to obtain work.  
3.	On Saturday 14th February 1987, as Miss De Souza was setting the shop alarm, the appellant took a claw hammer and struck her on the head inflicting multiple injuries which resulted in a fractured skull and damage to her brain from which she died.  The pathologist was of the view that 14 blows were struck.  The ferocity of the attack was such that it is likely that she would have been rendered unconscious after three to five blows.  It follows that the majority of the blows were struck when Miss De Souza was helpless and unconscious.  
4.	The appellant did as he had planned.  He took £500 from the shop.  He left.  He met some girlfriends that evening and told them that he had robbed the shop, and laughed about it.  The next day he purchased a change of clothing and travelled to Dover intending to sail to France.  However, he was there arrested and when he was arrested he asked the police officers: "Is she dead yet?"  In interview he admitted hitting her but denied that he had intended to kill her.  
5.	At the trial the issue was intent.  Medical evidence had been obtained on behalf of the defendant which indicated that he had an unusual personality.  At the trial defence counsel sought leave to call that evidence on the issue of the appellant's ability to form the necessary intent.  The judge refused that application on the basis that there were no exceptional features which could justify the conclusion that a jury would need assistance in determining the issue of intent.  It was in those circumstances that he was convicted.  He appealed to this court; but on 18th October 1988 his appeal was dismissed.
6.	The matter was referred to the Criminal Cases Review Commission essentially as a result of a report dated 2nd September 1999 which was prepared for the purposes of the Parole Board's consideration of this appellant's position by a Dr Gralton.  Dr Gralton was of the view that there was sufficient evidence to suggest that the appellant was suffering from what was described as autistic spectrum disorder, sometimes known as Asperger's Syndrome.  He considered that it was unlikely that given the nature of the disorder the appellant would be able to make any major gains around, as he put it, "victim empathy", nor would he be able to display emotions consistent with remorse for the offence.  He concluded that there was no specific treatment for the disorder and that there was no immediate place to which he could go where there were facilities which would enable his condition to be ameliorated in any way.  
7.	That report was supported by a report from a Dr Shah who was a clinical psychologist, who saw the appellant in December of 2000.  She concluded that he had suffered from Asperger's Syndrome since birth and that the prognosis was uncertain save that there was no medical treatment available which could treat the basic impairments underlying the syndrome.  
8.	The Criminal Cases Review Commission in the light of those two reports instructed Dr Staufenberg, a consultant forensic neuropsychiatrist, to consider the appellant's condition.  He has provided a comprehensive report dated 18th December 2001 which gives a full and detailed history of the appellant and confirms the diagnosis of Asperger's Syndrome.  He also indicated in his report that such a condition was not widely recognised at the time of the conviction.  Indeed Asperger's Syndrome was not named in the ICD until 1990.  He was of the view that Asperger's Syndrome was capable of amounting to an abnormality of mind within section 2 of the Homicide Act 1957 and that in those circumstances a plea of guilty to manslaughter on the grounds of diminished responsibility may have been accepted or if the matter had proceeded to trial the judge may well have directed the jury that it was a defence open to the defendant justifying a conviction of manslaughter.  
9.	He, however, was concerned as a result of the interviews that he had had with the appellant that the appellant had a continuing preoccupation of anger against two men in particular, Mr Mayor, who was his employer at the time, and a Mr Driver, who was his mother's then companion.  He considered as a result that the appellant was a risk to those two individuals and that that risk should be assessed.
10.	As a result of those reports, the Criminal Cases Review Commission referred the matter to this court, concluding that the evidence of Dr Staufenberg in particular was evidence which was capable of being considered by this court to be fresh evidence under section 23 of the Criminal Appeal Act 1968 and that this court may well be prepared to admit it and consider that as a result the conviction for murder was unsafe.   
11.	The matter having been referred to this court, the Crown Prosecution Service commissioned a report from a Dr Joseph.  He concluded that the diagnosis of Asperger's Syndrome was correct and that the appellant had been suffering from that condition at the time of the offence.  He confirmed Dr Staufenberg's opinion that at the time it was unlikely to have been identified by psychiatrists as a condition which constituted an abnormality of mind for the purposes of the Homicide Act; and his conclusion was that had the condition been recognised and evidence called to that effect at trial, it was highly likely that the jury would have concluded that the appellant's behaviour in attacking the deceased was significantly attributable to his mental disorder and accordingly that the jury would have concluded that his abnormality of mind substantially impaired his responsibility at the time of the killing.  
12.	We have seen, as we have indicated, the reports of Dr Staufenberg and Dr Joseph.  We consider that the material contained in those reports constitutes fresh evidence which we are entitled to receive under section 23 of the Criminal Appeal Act 1968.  We consider that the evidence is clearly credible evidence and could have had a significant effect if it had been available at the trial.  We are of the view that Dr Joseph is correct in his conclusion that it was highly likely that had that material been before the court in the form that it is before us, the disposal either by way of plea to manslaughter or, if the matter proceeded to trial, by a jury's verdict of manslaughter, means that the conviction of murder must now be considered in the light of that material to be unsafe and we accordingly quash the conviction.  The material, however, before us makes it plain that the appellant must be convicted of the offence of manslaughter and accordingly that is the verdict which we substitute for the verdict of murder.
13.	The question then arises as to disposal in the light of the material that we have and also any further evidence which the parties wish to put before us. 
14.	We turn therefore to the question of the appropriate sentence to be imposed on this appellant in the circumstances of the medical evidence that we have rehearsed.  That has, however, been augmented now by oral evidence before us from Dr Staufenberg and Dr Johnson.  The position can be, it seems to us, encapsulated in the following way.  There is no doubt that the appellant is suffering from a mental abnormality, as we have already described, which is of a psychopathic nature.  There is no indication in any of the documentation before us that that condition can be ameliorated by treatment.  It follows that there is at present no material before this court which could justify any disposal other than a custodial disposal as opposed to a Mental Health Act disposal.  It is equally clear, and is accepted expressly by Dr Staufenberg, that the evidence of all the doctors establishes that this appellant does indeed pose a serious risk to the public, in particular to the two named individuals about whom he has expressed the anger which is identified in the reports.  The fact that there has been no incident to which anybody has been referred within the prison system since he was sentenced which indicates that he has been violent in any way, does not seem to us to justify the conclusion that the doctors' assessment is other than one upon which we should act.  That is particularly so because it is apparent from all the reports that the ordered routine of a prison life is one which he finds comfortable.  In other words, there are for him no conditions which are likely to give rise to the sort of relationships which a more unstructured and free environment might result in and which could give rise to the eventuality which is feared by those who consider that he does pose a serious risk to the public.  Accordingly, the only appropriate sentence would in those circumstances and could in those circumstances be a sentence of life imprisonment.  
15.	Dr Staufenberg and Mr Laws on behalf of the appellant have sought to persuade us, however, that there is an alternative today which is to adjourn the case for the appellant's position to be put to a psychiatrist who we understand works in Broadmoor, on the basis that he is a doctor who might be able to give a more constructive answer to the question of the appellant's treatability.  What is suggested is simply that an enquiry should be made to determine whether that individual considers that it would be worthwhile making a formal assessment of the appellant's condition, with a view to reporting whether that possibility does exist.  
16.	That is a very tenuous basis upon which to suggest that this court should act.  The difficulty, it seems to us, about the application is that there is nothing before us which suggests that it would bear any fruit.  More importantly, the evidence is clear that as far as secure hospital regimes are concerned, it is unlikely in the extreme that this appellant could possibly meet the criteria for admission to one of the special hospitals which would be, as we understand it, the necessary ingredient in the proposal of Dr Staufenberg because it is a person who is working within the special hospital system to whom he would like the appellant to be referred.  But the difficulty is not merely that so far the evidence is clear that those who examined him do not consider that he would meet what might be described as the treatability criteria, but that of course could be said to beg the question which Dr Staufenberg considers the adjournment might answer, but more important, the appellant does not require the security which is a necessary precondition for admission to a secure hospital.  He is satisfactorily held in category C conditions and accordingly a special hospital would not consider that he would be an appropriate person to take up the precious bed that he would have to be given in order for an assessment to be made.
17.	We are grateful to Dr Staufenberg for the concerns that he has expressed to us because we do accept that the position in relation to psychopathic individuals such as the appellant is not satisfactory within the health service.  But we do not consider that there is sufficient in the material with which we have been provided which could justify the conclusion that there should be any disposal of this case other than that which we have already indicated is the appropriate disposal on the evidence before us; that is that he should be sentenced to life imprisonment.  
18.	We are required to indicate what would have been the appropriate determinate sentence.  That is a somewhat unreal exercise in the context of this case, bearing in mind that the appellant has already served 17 years in prison.  But it seems to us that the court could not have imposed a determinate sentence in excess of 12 years had the appellant been convicted of manslaughter on the grounds of diminished responsibility at his original trial; and the appropriate period therefore which would, if it mattered, have to be served before consideration by the parole board of release would have been one of six years.  That therefore is the sentence that we impose today.  
19.	MR WHITTAM:  My Lord, can I just simply raise one matter to get some guidance from the court.  It became clear, once the appeal was being prepared and the reports written, that not all agencies dealing either with the appeal or with this appellant were aware of either the general nature of the appeal or had all the reports and those who instruct me wonder whether it would be appropriate for them to collate all the reports that have been prepared for this appeal and make them available to the prison where the defendant currently is, because it became clear they do not appear to have the reports. 
20.	LORD JUSTICE LATHAM:  It seems to me to be absolutely vital that any decisions that are taken from now on in relation to this appellant are taken in the light of all the material which can possibly be made available to those who have to make those decisions and it would be very helpful if, therefore, you could collate those reports and make them available.  Indeed, it seems to us that if Dr Staufenberg wished to put in letter or report form the views that he expressed to us in his evidence as a consideration for somebody to consider, then he is perfectly at liberty to do so and it may or may not be a matter which could be taken up by other agencies.  
21.	MR WHITTAM:  My Lord, thank you.