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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 >> Sultan v R [2008] EWCA Crim 6 (23 January 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/6.html Cite as: [2008] EWCA Crim 6

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BLACKRIARS CROWN COURT
HIS HONOUR JUDGE STONE QC
Insert Lower Court NC Number Here

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/01/2008

Lord Justice Rix:

1. On Christmas Eve, 24 December, 2003 the appellant, Tipu Sultan, engaged in sexual conduct with his estranged wife at the home where she, but not he, lived with their three children. As a result he was convicted on 12 August 2005 at the Crown Court at Blackfriars before HH Judge Stone QC and a jury on one count of rape and another of indecent assault, and sentenced to four years imprisonment. His appeal, for which leave was given by this court, raises the issue of the impact on the safety of his convictions of fresh evidence relating to his psychological condition at the time of the incident. That evidence has come before the court in the form of a medical report from Dr Nigel Blackwood dated 8 May 2007 which has put forward for the first time a diagnosis of Asperger's Syndrome. The court has heard Dr Blackwood give evidence orally, and has also read other medical reports and heard evidence from Dr L P Chesterman, whose report was commissioned by the Crown, and from Dr Aggrey Burke, who has been treating the appellant since 1999.
2. At the conclusion of the hearing, we gave leave to the appellant on his renewed application for leave to appeal, admitted the new evidence which had been put before us, and allowed the appeal. These are our reasons for those decisions. We also ordered a retrial.
3. The appellant was born in Bangla Desh in 1970 and is now 37 years old. He came with his family to England in 1977, when he was 8. He achieved three A levels at school and completed two years of a university degree before dropping out. He has been unsettled in adult life: his jobs have been short-term and he has not pursued any activity. He met his wife, Tahmina Haque, in 1992. They married in 1995 and have three children. The relationship has always been a turbulent one. Following the birth of their first child, he had demanded a blood test to prove that she was his. In 2001 his wife made a complaint of rape against him, but withdrew it when she became pregnant as a result with their third child. They went through a form of Islamic divorce and separated soon after his birth. They had not had any sexual relations between then and the Christmas Eve in question. He had formed a new relationship with Norbai Tambilawan, which may have been platonic.
4. The appellant had become a patient of Dr Burke since he was first referred to him in March 1999. He was then diagnosed to be suffering from Delusional Jealousy (or Morbid Jealousy). He was given anti-psychotic medication, which appeared to work. He was reviewed on 18 November 2003, when he stated that he was no longer jealous of his wife.
5. At that time the appellant was subject to an injunction of the Family Court not to contact his children without the supervision of a social worker and a contact centre. Nevertheless, on Christmas Eve 2003 he wanted to see them, to give them Christmas presents. He telephoned and spoke to his children, who reported to him his wife's request for him to stay away. Nevertheless he called at their home, and his children let him in. Ms Haque was later to say that "I wasn't really unhappy about it because…I didn't want him to come but I wasn't really angry that he had come…because the children are excited". She retired to her bedroom and covered herself with a blanket so as neither to see him nor to be seen by him.
6. What happened next was in dispute at the trial, although the appellant always accepted that he had had intercourse with his wife and maintained that it was with her consent. Her account was that he entered her bedroom, put his hand under the blanket and touched her vagina. That was the conduct which led to the count of indecent assault. She told him that he was not allowed to do this. He carried her into the living-room where he put her on a settee and covered her with a throw. There was then an interlude while she put their son to bed and he went out with the younger daughter to buy sweets. On his return, back in the bedroom he sought intimacy but she constantly pushed him away. He fingered her vagina and that made her angry: she told him, "There's no point, you're not going to have sex with me. Don't even try because it's not going to happen." He persevered, and she bit him in the mouth. He then moved on top of her and tried to enter her with his penis, which caused her to scream with pain. There had been some, albeit slight, penetration. He stopped. She asked him to leave. She said she would contact the police, and he said, "Don't be silly, I will deny everything." When examined, she had a love bite on her neck, but no other forensic signs.
7. The appellant's account, in interview and evidence at trial, was that Ms Haque had invited, indeed demanded, sex and that all that happened was consensual. When he got to the flat, he saw her through the open door of the bedroom lying in bed under the blanket. They became affectionate and she pulled him into the bed. She wanted sex, and although he was concerned about sexually transmitted disease and pregnancy and therefore reluctant, she told him that he would have to satisfy her or she would make a false allegation of rape to the police. He described her as obsessed and needing help. He penetrated her but withdrew shortly, which appeared to upset her. He carried her to the living room, where there was more sexual contact. It was then that he took his daughter to the shops to buy sweets. On his return, he stayed another two hours. He received a call from his friend Norbai, which made his wife jealous and she said that she would "get" him.
8. This somewhat unpromising defence was not assisted when the appellant referred in his evidence to the fact that "I was seeing a doctor who was treating me for morbid jealousy". Nor was it assisted by the appellant's strange behaviour in court, such as reading a book while Ms Haque gave her evidence. In fact Dr Burke had written a report dated 29 July 2005, in which he had considered the appellant's mental state and concluded that he was at that time "free of active mental symptoms…does not hold any false beliefs concerning Tahmina Haque…" He also concluded that the appellant was fit to plead. The date of the report was admittedly over 18 months after the alleged rape, but Dr Burke there records various reviews of his patient from 18 November 2003 onwards at which he had presented without symptoms of his previous delusional state. In the circumstances, as trial defence counsel Mr Henley himself explained to the judge following Mr Sultan's evidence:

"There is to be no medical evidence…There obviously was a time when Mr Sultan was suffering from mental illness. My concern which led me to require a full report was state of mind at the time of the offence, state of mind now. Those are the conclusions of the doctor whose gaze he has been under through a number of years and still is. I have no medical evidence to suggest anything else. My hands are tied."

In the circumstances Mr Henley made it clear to the judge that the appellant's defence was a straightforward factual conflict: there was and could be no case that he was suffering from a mental illness or that his evidence was therefore unreliable because he was suffering delusion or that he and his wife were at cross-purposes because of his mistaken state of mind. There was no issue at trial as to the appellant's mens rea.

9. The judge reflected this in his summing-up. He was sufficiently concerned, while directing the jury on the mens rea ingredient of rape (to the effect that the appellant must have known that Ms Haque was not consenting or was reckless as to whether she was consenting or not), to mention that in some cases

"there might be room for doubt or room for misunderstanding. Perhaps the sort of situation where the woman is not consenting but is not making that clear and there is room for argument about what the defendant understood. This is a matter for you but I suggest to you that this is not that sort of case. We are not here debating misunderstandings. The difference between the two sides is such that there really could have been no room for misunderstanding."

10. That is now the issue, as it was not at trial, as a result of Dr Blackwood's diagnosis of Asperger's Syndrome, for it is his evidence that a sufferer, such as the appellant, is liable to misunderstand in real time the signs and even straightforward indications of those with whom he comes into contact. As a result, Mr Edward McKiernan, who now represents the appellant, submits that, although his legal representatives did not know this at the time, the appellant had a real defence on the mens rea of the offences of which he was charged. Miss Philippa McAtasney QC, however, who appears for the Crown on this appeal, as she did at trial, submits that the new diagnosis is not sufficiently well grounded and in any event cannot explain why an innocent man should have acted as the defendant accepts he did in the face of what were, as the judge at trial clearly considered, unmistakeable signs of the refusal of consent.
11. Before we seek to deal with this ground of appeal, however, we need to say something of the process by which we have arrived here, as well as to highlight the evidence we have read and heard from the medical witnesses.

The process of appeal

12. Following conviction, the appellant's then counsel, Mr Henley, advised that there were no grounds of appeal. The appellant nevertheless proceeded to apply for leave to appeal with numerous grounds of his own composition. One of them was that Mr Henley did not act in his best interests. Another was that the judge had wrongly suppressed evidence about his psychological problems. A third relied on fresh evidence from his sister, Mrs Navy Begum, to the effect that Ms Haque had confirmed to her in a telephone conversation that no rape nor any crime had been committed. Subsequently (in April 2006) there was an application to admit further evidence from Mrs Begum to speak to that telephone conversation with Ms Haque and to a letter dated 5 December 2005 which she had received from Ms Haque, to similar effect. All these grounds were rejected by the single judge.
13. In the meantime the appellant's condition in prison was causing concern. On 2 December 2005 there was an emergency psychiatric assessment. On 23 February 2006 his behaviour was noted to have deteriorated and as a result he was moved to the Healthcare Wing of his prison. He was prescribed but refused to take anti-psychotic medication; he denied any mental health problems. He regarded himself as having already succeeded in his appeal and to be illegally detained. In April 2006 he was assessed by a psychiatric trainee from the North London Forensic Service (NLFS). The appellant had no insight into his mental health and regarded himself as well. A provisional diagnosis of a psychotic illness was made, but his admission to a medium secure unit at NLFS was recommended for further assessment and treatment. On 13 June 2006 he was therefore transferred under sections 47/49 of the Mental Health Act 1983. By late September 2006 the diagnosis of Asperger's Syndrome (of which more below) had been made.
14. The application for leave to appeal came before the full court (Henriques and Gloster JJ) as a non-counsel application on 13 October 2006. The court had before it two letters, one from a lady, Emma Crivellari, who had been working with the applicant's family to access legal support; the other from Dr Blackwood, briefly describing his diagnosis as impacting on the appellant's ability to understand Ms Haque's intentions on the evening in question. The court decided that a representation order should be granted to original trial counsel, Mr Henley, to advise further on the merits of any appeal. The matter was adjourned.
15. Mr Henley therefore wrote a further advice dated 30 October 2006. He had only lately learned of Dr Blackwood's diagnosis. Mr Henley said he needed a full report from Dr Blackwood, which should describe Asperger's Syndrome and the effect of it, and should also address the further issues of whether the appellant was legally insane on Christmas Eve 2003, or fit to stand trial in August 2005. Mr Henley also advised that the new evidence concerning Ms Haque needed to be investigated.
16. The matter was back before this court (Hooper LJ, Gibbs and Roderick Evans JJ) on 31 January 2007. Mr Henley was there to present his advice, but had to tell the court that the appellant was adamant, albeit much against the advice of his family (his mother, sister and girlfriend, who were all in court) and the court itself, that he would not instruct Mr Henley or his trial solicitors on his appeal. The matter was therefore further adjourned, and arrangements were made for his current solicitors to be instructed. On 30 March 2007 the adjourned application returned before the same constitution with Mr McKiernan representing the appellant. The Crown was also represented, by Miss McAtasney. The court gave full directions for the preparations necessary for the hearing of the application, with appeal to follow if leave were to be given.
17. In consequence, a translation was prepared of a taped telephone conversation between Ms Haque and Mrs Begum; and Mrs Begum was interviewed by the police about that conversation and her letter, which had been written as a result. In her interview, which took place on 29 May 2007, Ms Haque confirmed her authorship of the letter. In it she had said that –

"I completely disagree with the verdict of the case of Mr Tipu Sultan. Mr Sultan was convicted of rape where I don't think it is justified…Mr Sultan said in the hearing that there was mutual intercourse took place but there wasn't any intercourse. Because Mr Sultan is mentally unstable he said things completely irrational. I knew Mr Sultan is a mentally ill person and didn't expect him to be in the prison…Straight after the conviction I phoned his psychiatrist to tell him that the verdict was unjust and was influenced by Mr Sultan's irrational comments..."

In her police interview, Ms Haque confirmed however that what she had said at court was the truth and that her real concern was that a mentally ill person had not had his proper defence put and had been treated unjustly. This also reflects the substance of the telephone transcript.

18. This matter therefore came before us, in form, as an adjourned, renewed application for leave to appeal, accompanied by an application to admit new evidence. One of the decisions we had to take was whether to hear and admit the new evidence. Although the Crown resisted the applications, Miss McAtasney was willing that the evidence be at any rate heard in the first instance, for what it was worth.

The medical evidence

19. It is common ground that Asperger's Syndrome is a developmental disorder which begins to manifest itself sometime in the early childhood of the patient. Its precise cause is unknown but genetic factors and peri-natal trauma are thought to be possible contributory causes. Because it is a developmental disorder its presence is constant: unlike psychotic illness it does not come and go. It is a disorder which has only become understood in recent years. Its essential features are severe and sustained impairment in social interaction and restricted, repetitive patterns of behaviour, interests and activities. It causes clinically significant impairment in social, occupational and other important areas of functioning. In contrast to autistic disorder, there are no clinically significant delays or deviants in language acquisition, although more subtle aspects of social communication may be affected. It may co-exist with other disorders, such as Dr Burke's diagnosis of Delusional Jealousy.
20. There are at any rate three diagnostic tools: a developmental history taken from family members of whom a mother may be particularly important; clinical assessment; and psychometric assessment. As to developmental history, Dr Blackwood merely reported that, on the basis of in depth interviews, the family concurred in the appellant's account that he attained normal developmental milestones in an age appropriate manner. The real basis of Dr Blackwood's diagnosis, therefore, was clinical assessment, supported by psychometric assessment. The latter revealed that the appellant has a significant divergence between his verbal IQ of 117 and his performance IQ of 87, a neuropsychological profile "typically seen in individuals with Asperger's syndrome"; and that he also demonstrated impaired cognitive flexibility in executive function. As for clinical assessment, Dr Blackwood reported that his speech had an odd prosody with an almost telegraphic quality; his language was formal and tangential, displaying an apparent inability to understand the needs of the listener; his discourse was repetitive and returned to preoccupations which superficially resembled delusions; he struggled with non-literal uses of language, having difficulty in understanding metaphors, irony, sarcasm or humour.
21. In an important paragraph in his report, Dr Blackwood writes as follows:

"The period of inpatient assessment has demonstrated the extent to which problems in executive function and understanding others' beliefs can disable someone who is otherwise intellectually very able. Thus his rigid belief in his illegal detention has resulted in long periods of time when Mr Sultan has refused to interact with members of the multidisciplinary team. He has refused to read letters sent to him by his legal team, maintaining that he is already a free man and that these letters have no interest or value to him (despite patient explanation that they related to the ongoing appeal process)…maintaining instead that our only function was to 'appraise the trauma suffered by an innocent man in prison'…".

Apparently the appellant believed that the full court, at either the second or third of the hearings described above, had allowed his appeal: "The 3 judges accepted new evidence…the grounds of appeal were accepted."

22. Dr Blackwood concluded that there was a clear diagnosis of Asperger's Syndrome; and that although the appellant would have been aware that Ms Haque's consent was required for sexual contact, his disorder impacted on his ability adequately to determine another's intentions or beliefs or desires in ambiguous situations; and that unless an unequivocal statement or set of actions was made by Ms Haque to ensure that he ceased his unwanted attentions and left the premises, he was compromised by his disorder. In this connection Dr Blackwood referred to evidence that Ms Haque did not initially state that his presence was unwanted, and to the possibility that her presence in the bedroom may have been misinterpreted as a desire for intimacy. He wrote –

"Beliefs initially thought to be delusional such as the infidelity of his wife (in the past) or that the appeal court accepted his innocence and that he is being detained illegally (currently) are predicated on his inability to adequately understand others' beliefs, desires or intentions and to consider alternative views to his own."

Dr Blackwood also concluded that the appellant, although legally sane, had been unfit to stand trial. That last aspect of his evidence, however, was not supported by Mr McKiernan in his submissions.

23. Dr Blackwood is a consultant forensic psychiatrist and a senior lecturer in forensic mental health science at the Institute of Psychiatry. He described himself as having no specialty, but also said that he had researched Asperger's Syndrome and worked with patients who suffered from it. He has had the care of the appellant since his transfer in June 2006. His diagnosis was challenged in cross-examination on the basis that the appellant had used metaphor both in his evidence at trial (eg "she was hot and cold, like Mount Vesuvius"; "she brutally attacked me many times…she was like a rotweiller"; perhaps strictly speaking these are similes) and in letters from prison (eg "to see the fruits of her work ripening" and "I am not fettered by the chains of this prison"). Dr Blackwood's answer was that the appellant might have a semantic memory of metaphor and thus can reproduce metaphor himself, but that he struggles to understand it in "real time" when faced by it in others. He said that the appellant was capable of formulating lies, but not on a sophisticated basis. His concern was that a jury, uninformed about the appellant's disorder, would conclude that his erroneous beliefs, because they seemed incredible, were lies.
24. Dr Chesterman, whose evidence was led by the Crown, is also a consultant forensic psychiatrist, in the North Wales Forensic Psychiatric Service, and an honorary senior lecturer. His difficulty was that when he attended Camlet Lodge to interview the appellant, he found him unwilling to participate: "he said that he was innocent of all the charges, that his appeal had already been successful and he was sure to be released from the unit…". (Dr Blackwood and his team had experienced similar difficulties for the same reason, but they had the advantage of having the appellant in their care.) Dr Chesterman had already interviewed the appellant's mother and sister (Mrs Begum) according to a detailed diagnostic scheme. He reported that his mother described no abnormalities in development. Dr Chesterman commented: "At first sight, this would appear to indicate that there may be questions about the diagnosis of Asperger's Syndrome". However, the sister spoke differently. Dr Chesterman wrote –

"She told me however that he has always been socially isolated, that he was teased by others, that he had a particular interest in science fiction which he talked about frequently, that his gaze was abnormal and that he would stare in a fixed manner at people and that his language was always formal without the use of colloquialisms or slang expressions at any age. She told me that he collected numerous ceramic objects although he said that some of these were valuable. She told me that he was always apparently unaware of the feelings of others and would make inappropriate comments…When her remarks were contrasted with those of the detailed developmental history obtained from Mr Sultan's mother, his sister said that whilst in Pakistan, numerous relatives would have been involved in the care of Tipu Sultan and for this reason his mother may well have overlooked any developmental problems. She also said that her mother had undergone some form of neurosurgical operation when Tipu Sultan was aged seven which could have interfered with her ability to accurately recall Tipu Sultan's early development. In this context therefore, the apparently normal development described by Tipu Sultan's mother obtained by the use of the Autism Diagnostic Interview – Revised, may not constitute strong evidence against the diagnosis of Asperger Syndrome."

For the rest, in the absence of an interview of the appellant himself, Dr Chesterman's report was, as he himself said, "necessarily limited". He described the disorder. He expressed himself sceptically on Dr Blackwood's opinion about unfitness to plead, in any event. In his oral evidence he said that the appellant's use of metaphorical language was a factor discrepant with the diagnosis; and that sufferers of the syndrome can hear "No". His general stance appeared to be sceptical, but he expressly stated that he was unable to say that the diagnosis was wrong.

25. Dr Burke is a consultant psychiatrist at St George's Hospital, London SW17, part of the South West London and St George's Mental Health NHS Trust. He was called by the Crown. As stated above, the appellant has been his patient since 1999. In his report for trial dated 29 July 2005 he had found the appellant without symptoms of the previously diagnosed disorder of Delusional Jealousy. After reading Dr Blackwood's report, he wrote a further report dated 8 June 2007, addressed to the CPS, in which he recorded that he had studied the case notes and the contents of his previous reports and had been "unable to find anything to suggest that the diagnosis of his condition should be changed". However, he added –

"You should know that the diagnosis of Asperger's Syndrome was not considered at any time of his treatment with us. It is important to let you know that we have not used this diagnosis on any patient attending this clinic at any time."

But he went on:

"I have studied the diagnostic features of DSM 1V Asperger's Disorder and do not feel that these features were evident to us during the 6-year period of the patient's stay on this team…The case note material over the last 6 years do not support the view that the patient was suffering from Asperger's Syndrome during that time."

26. In his oral evidence, Dr Burke was asked about these observations, and in particular what he had intended to convey by the sentence cited above beginning with the words "It is important to let you know…" etc. Dr Burke's evidence was to the effect that he wanted the Crown to know that Asperger's Syndrome was "not our field". The field studied by his team was that of personality disorder, unlike Asperger's Syndrome, which is a developmental issue. There was no clinical psychologist attached to his team. Over 15 years, two patients had been referred to them with a diagnosis of Asperger's Syndrome and on both occasions they had had to decline care.
27. It is clear that Dr Burke knew the appellant well. Dr Blackwood had said that his diagnosis of Delusional Jealousy was a misdiagnosis, or at any rate that he had missed an underlying developmental disorder. Looking at the matter with hindsight, and without any expertise in this area, Dr Burke stood by his diagnosis and considered that the appellant's case notes did not support Dr Blackwood's new diagnosis. But he wanted the court to know that that was in the absence of expertise and also in the absence of any diagnostic assessment of the patient over the years with Asperger's Syndrome in mind. Moreover, Dr Burke was also anxious for the court to know that, as recorded in his original report, the appellant had always maintained to him that he had done nothing beyond Ms Haque's cooperation. He also explained, in his evidence in chief, that when the appellant is in contact with his wife, "the position changes – she is the 'provoking factor' ": by which we consider that he was speaking medically, not in any way suggesting that she did in fact do things to provoke him. But, as Dr Burke, continued: "He was fixated on her, and he had false beliefs". Indeed, Dr Burke volunteered that he had been very concerned by the outcome of the trial.

Discussion and decision

28. We were impressed by all three medical witnesses. We are unable to affirm that Dr Blackwood's diagnosis is established, but it is plain that the appellant's mental condition is giving grave concern and there is clearly cogency in the current diagnosis. Dr Chesterman is unable to say that it is wrong; and although that is in part due to the appellant's non-cooperation, the cause of that non-cooperation appears to be the appellant's own lack of insight into his own condition and the status of his appeal: as Dr Blackwood himself experienced and attests. Even if it is in theory a possibility, it is not suggested that the appellant is manipulating the doctors. Thus we do not think it right to hold the appellant's lack of cooperation against him, and the Crown did not submit that we should. Dr Burke's evidence on one level appears to gainsay the new diagnosis, but that view is undermined by his own lack of expertise, as he would seem himself to accept. Dr Blackwood's evidence is perhaps itself undermined to some degree by his view that the appellant was not fit to stand trial: but, although that point was not maintained by Mr McKiernan and was disputed by Dr Chesterman, the latter did volunteer that some recent research on Asperger's Syndrome supported Dr Blackwood, at any rate on one interpretation of the test.
29. In sum, the appellant is not well. No one currently has a diagnosis different from Dr Blackwood's. There is no sign that he is showing any further symptoms of Delusional Jealousy, but he continues to hold beliefs which on one view, as Dr Blackwood reports, mimic delusions. If Dr Blackwood's diagnosis of Asperger's Syndrome is correct, then, as all accept, the appellant has always suffered it and was suffering it on Christmas Eve 2003.
30. Section 23 of the Criminal Appeal Act 1968 provides as follows:

"(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."

31. For these purposes, we are satisfied that Dr Blackwood's evidence is capable of belief, would have been admissible at trial, and is covered by a reasonable explanation for the failure to adduce it at trial. Indeed, on behalf of the Crown, Miss McAtasney ultimately did not submit otherwise, basing her opposition to the applications before us and to this appeal solely on section 23(2)(b) and the submission that the new evidence did not afford any ground for allowing an appeal. She put her case in this way.
32. First, she submitted that to justify reception of fresh expert evidence would require the court to take a wholly exceptional course, which was unjustified on the facts, in particular in the light of Dr Burke's report available to the defence at trial and his current evidence. In this connection she relied on cases such as R v. Lomas (1969) 53 Cr App R 256. Secondly, she submitted that the diagnosis of Asperger's Syndrome, even if known about and presented in evidence at trial would in any event not have affected its result. The case was too black and white. Ms Haque, if she was to be believed, as the jury had done at trial, had made her opposition to the appellant's conduct too clear for him to have mistaken her signals. It was not a case which turned on misunderstanding signals. The competing factual cases were too stark.
33. However, we did not find these submissions, well directed as they were, sufficiently cogent to allay our feeling, which grew as the hearing progressed, that the convictions were unsafe. In truth, Miss McAtasney's own submissions peeled away during the appeal. Her reliance on cases such as Lomas reflected the undoubtedly primary view of this court that the greatest caution should be taken not to allow an appellant to subvert the trial process by permitting him to deploy second time around an expert case which could and should have been deployed before the jury. This consideration, however, principally concerns the subject matter of section 23(2)(d), and by the end of the hearing Miss McAtasney had abandoned any reliance on that. She acknowledged that, if Dr Blackwood's diagnosis was to be accepted for the purpose of this appeal, such evidence simply had not been available to the defence. It was not that the defence had failed properly to investigate, with Dr Burke's help, the factual and medical background to the offences charged, or had made tactical decisions in the light of Dr Burke's evidence as to how the trial was to be run. In this connection Miss McAtasney expressly acknowledged in her closing submissions that this was not a case where the appellant was seeking a deliberate change of tack. His defence remained the same as it had done since his police interview, namely that Ms Haque had been a willing and even insistent partner in his sexual conduct; and there was no change of tack relating to medical evidence. It was simply that the diagnosis of Asperger's Syndrome had not been there (and neither as at the relevant time had the earlier diagnosis of Delusional Jealousy). This acknowledgment was all the more powerful in that her original written skeleton argument had relied on R v. Neaven [2006] EWCA Crim 955, [2006] 6 Archbold News 1 for the submission that there had been a change of tack: see also R v. AR [2006] EWCA Crim 3356 at paras 27/28, where Neaven was applied.
34. Ultimately, therefore, what remained was that, unlike Neaven, in this case the new diagnosis was not unanimous across both parties to the appeal, and also the Crown's concern that the factual dispute between the appellant and Ms Haque made the new diagnosis irrelevant. It is true that the Crown continues to challenge the new diagnosis; but it agrees that if it is correct, then it applied at the time of the incident; and its effects are agreed. We have given our reasons above for finding the evidence of Dr Blackwood to be cogent. What remains in dispute is whether its effects could account for the appellant's conduct and his alleged belief that his wife was a willing partner. However, we are unable to say that the presence of Dr Blackwood's testimony at trial might not have affected the outcome of trial or could not afford a ground for allowing the appeal. We assume, as we feel sure, that Ms Haque's evidence was in its essential details credible and true. That is not the issue. However, in our judgment, the new evidence could have affected the trial in one or more of three ways. First, it would have enabled a defence for the first time to be based on the requirements of mens rea. Secondly, it would have enabled the jury to view the defendant before them not solely on the basis of whether what he said happened was at all credible, but more importantly on the basis of whether he was honest about what he believed to have been the situation, even if the facts were otherwise as Ms Haque said them to be. Thirdly, it might have gone some way to explain to the jury why the appellant was behaving so oddly at trial, such as reading a book during Ms Haque's evidence.
35. We have also been to some extent fortified in our conclusions by the obvious reactions to the trial of three people who have known the appellant very well, namely his doctor, Dr Burke, the complainant, Ms Haque, and his sister, Mrs Begum, all of whom clearly feel considerable concern that he has been in some way treated unjustly. We are alive to the dangers let alone weaknesses of such expressions of concern, whether from a member of a defendant's family, or from a treating doctor, who may feel a sense of loyalty to his patient, or above all from a complainant, who may be subject to all kinds of influences. We therefore mention these matters only in passing; our decision would have been the same in any event. We do consider, nevertheless, that these matters in this case support our judgment that it was expedient in the interests of justice for us to receive the new evidence; and that in the light of that evidence the appellant's convictions are unsafe.
36. It was for these reasons that we gave leave to appeal, allowed the appeal, and quashed the appellant's convictions. We also ordered a re-trial.