Case No: 2009/04643/D2
Neutral Citation Number: [2010] EWCA Crim 547

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE RADFORD

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/03/2010
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE GRIFFITH-WILLIAMS
and
MR JUSTICE FOSKETT
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Between :

	Reference by the Criminal Cases Review Commission
R		
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	Osborne		

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Mr C.H. Blaxland QC and Miss M Smullen for the Appellant
Miss S Plaschkes for the Respondent

Hearing date : 4th March 2010
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Judgment
The Lord Chief Justice of England and Wales: 
1.	On 15 April 2005 the appellant was convicted at Snaresbrook Crown Court before His Honour Judge Radford and a jury of the murder of Mohammed Omar on 30th June 2004.  He was sentenced to detention for life with a minimum term assessed at 9 years, with appropriate credit being given under section 240 of the Criminal Justice Act 2003.  His appeal against conviction was dismissed on 2nd November 2005.  
2.	In September 2007 his solicitors applied to the Criminal Cases Review Commission (CCRC) for the conviction to be reviewed in the light of fresh evidence, admissible under section 23 of the Criminal Appeal Act 1995, which supported a defence of diminished responsibility which had not been advanced at trial.  On 18th August 2009 the Commission decided that the case should be referred to the court on the basis that the evidence lent support to the defence at trial, absence of the necessary intent, as well as giving rise to the defence of diminished responsibility which was not advanced at trial.
3.	The essential facts in which the killing took place are not uncommon, but in the context of the issues relating to the appellant’s mental capacity, which arise for consideration in this Reference, they are of critical importance.   
4.	It was about 7.30pm on 30th June 2004 when the appellant, who was then aged 14, was sitting with two friends (Luke Martin and Scott Cooper) outside the Golden Lion public house in Plaistow.  He had smoked at least 3 joints of skunk, the last one very recently, and had probably consumed alcohol.  Mohammed Omar, then 22 years old, accompanied by a 17 year old female, was walking along the pavement in the direction of the public house, and drew level with the appellant and his friends.  The racial origins of Mohammed Omar and his companion attracted the attention of the three boys.  Words were exchanged and a fight broke out.  The deceased was attacked.  The appellant joined in the attack.  The deceased’s t-shirt was ripped, but, in self defence, he managed to punch the appellant in the head.  The scuffle then came to an end.  The deceased and the female walked away from the incident, back whence they had come.  That should have been the end of that.
5.	The appellant’s immediate action afterwards was to pick up some money which had fallen into the road.  More important, all three boys thought the Asian man had “taken a liberty” by, as they were to contend, starting the incident and the appellant did not, and said that he did not take kindly to having been punched.  Rather than staying where they were, all three decided to follow the deceased and his companion.  First, however, they ran across to the other side of the road and, taking advantage of some renovation work in a shop to choose a weapon, armed themselves.  Each of them picked up a piece of wood. The appellant picked up a heavy piece about 3 feet in length and 3 inches in thickness.  By then the deceased and his companion were out of sight of the three boys.  Nevertheless all three ran back to the other side of the road, and followed them.  Led by the appellant they ran and eventually caught up with the deceased, who by now was about 250 metres away from the scene of the first fight.  The deceased was taken completely by surprise and quite defenceless, as the appellant swung his weapon from behind him and struck him on the right hand side of his head.   The blow was a very hard blow, administered while the appellant was holding his weapon in both hands.  
6.	The deceased sustained a serious fracture of the skull.  The blow was fatal.  It later transpired that his skull was somewhat thinner than usual, a consideration which was advanced on behalf of the appellant at trial in support of his defence that he lacked the necessary intention for murder.    
7.	The appellant and his friends ran away, to another public house. The weapon used by the appellant was never recovered.  The appellant told the barman that he had been in a little bit of a fight.  On his return home, he told his mother that he had been hurt playing football.  He said this lie was told because his mother had health problems and he did not want to cause her any stress.  Much more important, later that day the appellant returned to the scene in a car.  He saw one of the eye witnesses, and threatened him not to “grass”.  
8.	Two days after the attack, a witness, - a boy of 13 years - encountered the appellant and his two friends.  The witness asked the appellant why he had struck the deceased, and one of his companions replied that “…we don’t like Asian people.  They stink.  Why do they come over to our country?”, or words to that effect.  The appellant himself said nothing, but the response enraged the girlfriend of the witness, and she spoke out in unequivocal terms.  With that, the appellant and his friends walked away, smirking.
9.	The appellant was arrested on 18th August.  As he denied any involvement, identification parades were held.  He was positively identified.  He was then interviewed on a number of occasions.  His solicitor and an appropriate adult, his father, were present. When he was arrested the appellant had made clear to the police that he was not suffering from any mental health problems.  His father did not suggest any. In interview he made no comment.  The judge directed the jury that in view of his age and the legal advice he had received, his silence on these occasions should not be held against him. In due course he was remanded in custody.  He was held at the Eastmoor Secure Unit.  No evidence of mental health problems appeared. The next line of defence which was to emerge was self-defence.
10.	The defence statement prepared on his behalf admitted that the appellant had “armed himself with a piece of wood and struck the victim with it”.  It asserted that he did not intend to kill the victim and that at the time he believed that he was acting in self-defence.  He claimed that he had been assaulted by the victim and thrown to the ground and suffered concussion, and that when he attacked the victim with a piece of wood he believed that he was about to be assaulted again.
11.	At trial it was understood by the prosecution that self defence was a live issue.  However he appellant’s counsel made clear that the reference in the defence statement to self defence was mistaken. The only issue at trial was the appellant’s intention at the moment when the fatal blow was struck.  Nothing was said about diminished responsibility.  No evidence was called to support the defence.  
12.	The case advanced on behalf of the appellant naturally focussed attention on his youth at the time, and the absence of previous convictions.  He was in fact cross examined about two racial incidents in which he had been involved while at school, but his mother and others gave evidence to the effect that he was not racist, and indeed that some members of his family were black.  The judge directed the jury that there was no evidence (and at trial there was none) of his involvement.  It was also suggested that he had some educational problems, and difficulties with reading and writing.  However there was no suggestion from any witness, who included his mother, or from his father who was present in the dock with him throughout the 8 day trial, that the appellant suffered from any abnormality of mind. No concerns whatever were expressed about his mental health.  Counsel who represented the appellant at trial, in response to criticisms of the way in which the defence was conducted, commented that there was “nothing before us to indicate that Stevie was suffering from any abnormality.  In these circumstances we had no basis upon which to seek medical reports”.  The appellant’s solicitor confirmed that “throughout the case, as far as we are aware, nothing was said by Stevie Osborne or his parents to the effect that he suffered from any particular mental or physical condition which would affect his criminal liability, or have any bearing on the issues in this case”. 
13.	Following conviction, the judge adjourned for reports.  When he came to sentence the appellant, he considered a pre-sentence report and a mental health nursing report.  The pre-sentence report was carefully structured, following information gathering from a number of different sources, and two interviews with the appellant himself.  The report records his educational difficulties, and frustration in the school environment.  His behaviour in the classroom became unmanageable.  He had difficulty accepting the authority of members of staff.  He underachieved, not through lack of ability but because of what was described as “challenging behaviour”.  There was however nothing in his history which suggested any mental health problems.  The writer referred to possible diminished responsibility, not in any medical or legal sense, but because it was “entirely possible that a 14 year old boy would not fully appreciate that a blow to the head would result in serious injury or death”.  That, however, had been the issue at the trial, and the jury had resolved it adversely to the appellant. The consensus view seemed to be that despite his youth, the appellant was mature beyond his 14 years, and a boy of reasonable intelligence.
14.	The absence of mental health problems was confirmed by a report from a mental health worker, attached to Newham youth offending team.  The appellant presented no features which could be linked “to an underlying psychopathology and no evidence that he was currently suffering from any underlying mental ill health”.  The appellant said that he felt “beyond shame” for what he had done and that he thought about the incident a good deal with its wider implication for those affected directly and indirectly by it.
15.	When he passed sentence Judge Radford had observed the appellant for himself for eight days.  In his sentencing remarks he commented that the appellant’s “uninhibited violence cannot be passed off as being a momentary over-reaction in the course of a fight, in the heat of the moment.  What you did cannot either, in my view be explained away as being due to the immaturity of wayward youth…it is… clear that you are mature for your age, that was the view derived from the reports about you from your school and from those who clearly were working closely with you in that context and it is clear too that your home circumstances made you mature beyond your years, that was a sentence that your own learned counsel drew my attention to in the course of the submissions in mitigation”. 
Fresh evidence          
16.	The fresh evidence submitted to us on behalf of the appellant consisted of:
(a)  The appellant’s medical and educational records, all of which pre-date the offence.
(b)  Records and reports from the YOI where he was held in custody.  The reports are dated 25th June 2006 and 14 September 2007, and they are supplemented by letters from the writer Ms Welfare, dated 16th February and 1st April 2009.
(c)  The reports of Sandra Stevens, a clinical psychologist, dated 3rd June 2007 and 13th April 2009, with an updating undated letter. 
(d)  Reports from Dr Kevin Cleary, a consultant forensic psychiatrist, dated 3 January 2008 and 12 June 2009, with a further update dated 11 February 2010. 
17.	Evidence advanced on behalf of the Crown took the form of a report from Dr Michael Browne, a consultant psychiatrist.  His report was dated 22nd February 2010.
18.	We were invited to hear the oral evidence of Dr Cleary, Mrs Stevens, and Dr Browne.  Given the voluminous material we had already studied, that seemed an entirely reasonable request, and their evidence was given de bene esse. 
19.	The thesis on which the Reference by the CCRC is based is that there is now evidence, not adduced at trial, that at the time of the killing the appellant suffered from Attention Deficit Hyperactivity Disorder (ADHD). The dominant feature of the condition in the appellant was impulsiveness. It constituted an abnormality of mind which substantially impaired his ability to form a rational judgment and exercise control over his actions when he struck the deceased.  This would therefore have provided the defence of diminished responsibility as well as supporting the defence case that at the time the appellant lacked the necessary intent for murder.  
20.	Something was made of the failure by those who were responsible for the conduct of the defence case at trial to obtain this evidence.  The criticisms are hardly fair.  No one who had any dealings with the appellant had any reason to believe that he was suffering or had suffered from any mental incapacity.  That applies to the appellant himself, 15 years old at the time of trial, as well as to his parents.  The defence of diminished responsibility was not advanced because no one believed that there was any evidence to support the contention that the appellant’s mental responsibility for his actions at the time of the killing was substantially diminished.  No forensic or tactical advantage was being sought.  It was simple.  The issue did not appear to arise, and there was no reason why it should have appeared to arise.  Indeed if we had felt that more should have been done to consider at least the possibility of adducing evidence of the kind now placed before us, but that the opportunity was rejected in the hope of obtaining a tactical advantage, we should have been less rather than more inclined to consider the evidence now before us as truly “fresh” evidence.  We underline this aspect of the process because, if the evidence now available had been available at trial, there would have been an acute forensic problem, that the likely impact of the evidence which could have been adduced in support of diminished responsibility would have created difficulties for any defence based on lack of intent, when the burden of establishing diminished responsibility rested on the appellant, whereas the prosecution had to prove the intent required for murder.  In our judgment the failure to adduce this evidence, or evidence of this same effect, is sufficiently explained.
21.	The second problem which sometimes arises (but in this case does not) when a new minted defence of diminished responsibility is advanced some years after the killing took place, and the trial has concluded, is that the true facts have started to become obfuscated.  However, in this case the appellant was only 14 years old when he committed this crime.  Like the experts, we have been provided with voluminous evidence about the troubles which visited this young man in his childhood (and which involved visits to a psychiatrist when he was 9 years old) as well as his seriously disordered behaviour at school.  
22.	The records from the appellant’s general practitioner do not record any diagnosis of ADHD or anything which would now be described as ADHD.  There were a number of problems about his behaviour, and in August 1999 (when he was 9) he and his family consulted a consultant child and adolescent psychiatrist.  The appellant was described as very confrontational.  The discussions suggested that the parents believed that his problems arose from their own marital difficulties, the illness of an aunt, and the fact that when he was younger, both parents had given in to him too easily.  Perhaps more important, Dr Barcroft noted that although the appellant was cross when he came into the room, he relaxed and during the family interest “he sat without moving in a chair and was not unduly fidgety.  He separated easily to talk to me by himself and then plunged into a long spontaneous talk about the boys in the neighbourhood and people either being friendly towards him or beating him up”.  The psychiatrist believed that the talk was “invested with quite a lot of anxiety and concern”.  He would like to have a guardian angel which would stop him misbehaving.  The psychiatrist commented that “the spontaneity of his talk at the beginning might be indicative either of anxiety or some sort of attentional problems”.  
23.	The appellant then met with the same psychiatrist on a number of occasions, but in the end, as his parents stopped taking him, he was discharged, the psychiatrist observing that the appellant would have benefited from further consultations to sort out his feelings.  Importantly, however, ADHD was not diagnosed.
24.	In May 2002 the records from the general practitioner noted a 2 year history of anger outbursts and aggression, which had led to suspension from school, and the unhappy situation with his parents’ marriage which appeared to be causing constant problems. The appellant’s misbehaviour was attributed to these difficulties and consequent poor parenting.  Undoubtedly these were serious problems, as they would have been for any boy of his age, but there was no suggestion that they had caused or that he suffered from any abnormality of mind.  
25.	The context at this stage of the appellant’s education was that he continued to be extremely problematic.  We have looked at the case history in the papers from the appellant’s arrival at school in September 2001 until May 2002.  There can be no doubt that even this list, which is not itself a complete record, demonstrates that he was an extremely troublesome pupil, and not amenable or responsive to the variety of disciplinary actions.  Things did not improve.  We need not set out the history in further detail.  Its essential features are summarised in the context in which they arise for consideration in the rest of the judgment. In short, however, throughout his education, the appellant was a seriously disruptive pupil, the opposite of co-operative, always on the defensive, always ready to fight, and in many respects out of control.  However he was not stupid.  As we shall see, many positive comments were made about his potential, if it could be unlocked.  None of this medical and educational evidence about his childhood and his education is open to question.  It all reflects what the writers honestly believed at the time.  Quite whether the same can be said about the accounts the appellant and his mother gave after conviction to Dr Cleary and Mrs Stevens and Dr Browne is more questionable.  By then their attention was focussed on the possibility of a successful appeal against conviction.  As it is, their subsequent reconstruction of events does not greatly impinge on the issues we had to address.
26.	Dr Cleary largely focussed his attention on what he described in his evidence as the appellant’s “full developmental history”.  He identified a number of different elements in the appellant’s psychiatric condition.  He referred to learning disability, conduct disorder, obsessive compulsive disorder, and ADHD. ADHD was to be regarded as an underlying brain disorder with an organic element and was the most significant element of relevance to this particular case.  The remaining elements were supportive of and consistent with the diagnosis.  The condition resulted in what he described as a “triad” of symptoms, inattention, hyperactivity and impulsivity.  And for the purposes of studying the appellant’s actions on the occasion of the killing it was “impulsivity” which had “the greatest bearing”.   The level of impulsivity was much greater than would normally be expected in a child of 14 years.  The appellant’s impulsivity symptoms were experienced at what Dr Cleary described as the severe end of the spectrum, and because of it, he would be less likely than normal to think ahead or think out the possible consequences or indeed the course of his actions. We noted that there was no suggestion that the appellant was or would have been in a state of automatism.
27.	In his first report Dr Cleary did not appear to attach any significance to the appellant’s voluntary misuse of cannabis in the immediate period before he became violent.  However when he was cross-examined, and asked to consider the impact of three joints of skunk, he acknowledged that this would have an intoxicating and disinhibiting effect on the appellant, and would be likely to reduce his ability to control his impulses.  He also accepted that the appellant’s anger at the time and at the scene would have played a “significant part” in the offence.  His desire for revenge would also have contributed.  
28.	The evidence of Mrs Stevens supported the diagnosis of ADHD, and indeed Dr Cleary’s view of its severity.  She appeared somewhat more inclined to sympathise with the appellant’s case than perhaps the evidence warranted.  For example, in a report directed to tests to enable analysis to be made of the appellant’s “attention and executive functioning” she outlined no less than five tests to which he been subjected, and expressed the conclusion that the results of all five tests indicated “a poor ability to sustain attention”.  When she was cross examined she acknowledged that that was not entirely accurate.  Mrs Stevens was also inclined to work on the basis of the appellant’s description of his behavioural difficulties and inclined to set aside favourable observations about the appellant from those who had educated him.  She was not happy with descriptions of him as “sharp”, “smart”, “intelligent”, “articulate”, with a sense of “right and wrong”.  The writer of the pre-sentence report, and indeed the trial judge, both believed that the appellant, at any rate by trial, showed a significant level of maturity.  Again, she was disinclined to accept that any weight could be attached to these or similar observations.
29.	Dr Browne’s position was clear.  In brief, he did not himself support the diagnosis of ADHD, but he was prepared to accept the expertise of Dr Cleary about the diagnosis, and therefore would not contradict it.  At the same time he expressed clear and serious reservations about the suggestion that any ADHD to which the appellant was subject should be regarded as very severe or taking an extreme form.  In essence his position was that if it had really been as bad as Dr Cleary and Mrs Stevens were suggesting, it was indeed surprising that it had not been picked up at a much earlier stage by any of the many men and women who were in contact with the appellant on a regular basis before the killing, or were involved with him throughout the process of the investigation of the crime and the trial, and indeed for a fairly long period after his trial.  Apart from a couple of minor observations which were consistent with a possible diagnosis of ADHD, none of these many people identified any underlying condition that required attention to be paid to the appellant’s mental responsibility for his actions.  
30.	The response to these observations was that none of those who had had dealings with the appellant when he was younger would have had the necessary expertise to diagnose ADHD.  Assuming for present purposes the accuracy of that response even in relation to the psychiatrist who saw the appellant on some three or four occasions when he was 9 years old, and assuming further that more is known now than was known then about ADHD, this response does not sufficiently address the fact that the appellant was in the care of men and women drawn from the medical and education professions who were committed to his welfare. Yet notwithstanding all the trouble he caused, none of them saw fit to suggest that inquiry was needed into his mental capacity, or that further professional investigation was needed.  Even allowing for possible reticence about these matters, once the appellant was arrested and then charged with murder, it is reasonable to suppose that any inhibition against raising these matters because of their possible sensitivity would be dissipated, but in fact none of the many different individuals involved with and responsible, directly and indirectly, for the appellant saw fit to raise any such questions.  
31.	Having examined both the written and the undisputed oral testimony of Dr Cleary and Mrs Stevens we are prepared to accept on the balance of probabilities that the appellant was suffering from a degree of ADHD at the time of the killing.  We do however underline that we are not suggesting that a diagnosis of ADHD is, of itself, sufficient to demonstrate the level of diminution in responsibility required for the purposes of the defence.  For the reasons given by Dr Browne, and basing ourselves on a close study of the written material to which all the experts had access, and the absence of any sustained suggestion or recommendation that the appellant’s mental capacity was reduced, or that his mental condition required some form of professional intervention, we conclude that the contention that the condition was one of utmost severity is not established on the balance of probabilities.  
32.	Dr Cleary believed that the appellant was certainly “functioning at a level whereby he has the cognitive ability to understand that hitting a person with a piece of wood would at least result in a significant injury, even if he did not foresee that it would result in the victim’s death”. The essence of his support for the effect on the appellant of the ADHD in the severe form which in his opinion was established is that:
“…there was absolutely no pre-planning to the crime and it arose spontaneously and tragically from a minor disagreement on the street and that the victim suffered a single fatal blow carried out on impulse I believe that this young man who was a child at the time was suffering from an abnormality of mind namely ADHD which substantially impaired his mental responsibility for his act in killing …”
Mrs Stevens expressed herself in similar terms:
“At the time of the offence I believe he behaved impetuously, in a manner consistent with a poor impulse control which had been evidence throughout his life up to the time of his offence.  It is consistent with his previous behaviour that the incident was, to him, “just another fights…” ”
33.	In his second report, asked to express a view on the impulsivity of the offence “given that the victim was walking away”, Dr Cleary said that his impression was that “in a very short period of time there was a fight, but the victim started to walk away, (the appellant) crossed the road, picked up a piece of timber and then ran up the road and hit him over the head.  There was no evidence at the trial that this has been a pre meditated attack…given that this all happened in a very short period of time was a reaction to an incident I would say this makes this an impulsive action”.
34.	Mrs Stevens observed;  “The time interval and the fact that he took what appeared to be considered action in picking up a piece of wood and then following the victim suggests that there must have been both the time and the psychological control to reflect i.e. that his act was not impulsive.  I disagree with this reasoning. …I would prefer to say that his level of arousal (her underlining) and associated lack of inhibition overwhelmed his immature cognitive abilities and he lost control”.
35.	Even if we agreed that it would be right to describe the level of the appellant’s ADHD as severe, or even significant, these assessments omit important aspects of the facts of the offence with which we are concerned.  Mr Henry Blaxland, is, of course, correct that as a matter of law, the issue is the mental state of the appellant at the time of the killing.  However on the question whether the appellant was acting impulsively consequent on ADHD, or in response to a minor disagreement in the street, we have to go back to the beginning.  There was an attack by a gang of three on one man.  The appellant had already consumed cannabis, which he was later to say had him “buzzing”. The racist element in this first encounter never dissipated, and there was nothing impulsive about the violence shown to the deceased as he was walking peacefully along the road.  The appellant became angry because, with every justification, the victim had struck him.  He was later to embrace the untruth that he had been knocked unconscious, as a sort of excuse.  He had time for reflection.  He was not so overcome with impulsivity that he ignored money which had fallen on the floor, or so that he immediately chased the victim and struck him there and then with his fist.  Instead, and quite deliberately, together with his friends, he went across the road to find weapons.  Having found and chosen the weapons, although the deceased was out of sight, led by the appellant, they all ran down the road after him.  That was quite deliberate.  The victim was chased down and attacked when he was defenceless.  The blow with the weapon to the back of the head was administered with heavy force and without warning.  The attack was not long premeditated, but it was utterly deliberate.  It was not a spontaneous and instantaneous reaction to the earlier trouble for which the main cause, apart from the racist element, seems to have been the cannabis consumed by the appellant.   
36.	The level of ADHD, putting it as high as we can in favour of the appellant, did not substantially impair the appellant’s mental responsibility for his actions at the time of the killing.  There is clear evidence of calculation and deliberation.  He knew exactly what he was doing, and why he was doing it.  No jury properly exercising its responsibilities could have concluded that diminished responsibility was established on the basis of the appellant’s ADHD.  In relation to the fresh evidence, as it may bear on the question of the appellant’s intent at the time of the killing, if the evidence now before us had been deployed at trial, it would have revealed a history of violent behaviour which would have rendered the prospect of an acquittal on the basis of lack of intent not more but less likely.  The impression of a young man of good character conveyed at trial would have looked very different, and the judge would probably not have directed the jury to ignore the earlier evidence of two racially motivated incidents in which the appellant was involved.  
37.	On their unchallenged diagnosis of ADHD, the evidence of Dr Cleary and Mrs Stevens appears to be capable of belief, and would have been admissible at trial, and its absence is sufficiently explained for the purposes of section 23 of the Criminal Appeal Act 1968.  However, their evidence would not afford any ground for allowing the appeal against conviction on the basis that it was more probable than not that the appellant was suffering from an abnormality of mind which substantially impaired his mental responsibility for his acts in killing the deceased.  In these circumstances, having carefully reflected on the entire body of evidence, we have concluded that it is neither necessary nor expedient in the interests of justice to admit their evidence.  We are satisfied that the decision of the jury would have been unaffected.  The conviction is safe.  Accordingly the appeal is dismissed.