Lee Robert Foye v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Hughes |
| Judgment Date | 24 April 2013 |
| Neutral Citation | [2013] EWCA Crim 475 |
| Date | 24 April 2013 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | 201107029B4,Case No: 201107029B4 |
[2013] EWCA Crim 475
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
His Honour Judge Foster
T20107441
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Hughes of Ombersley
Lady Justice Gloster
and
Mr Justice Hickinbottom
Case No: 201107029B4
Jeremy Benson QC and Philip Rule (instructed by O'Neill, Wright & Nash, Solicitors) for the Appellant
Neil Moore (instructed by the Crown Prosecution Service) for the Respondent
This defendant was a prisoner serving a sentence of life imprisonment for murder when he killed another prisoner in circumstances of some brutality. The only live issue at his trial was diminished responsibility. If made out, that partial defence would reduce the offence from murder to manslaughter. The jury rejected diminished responsibility and convicted of murder. His grounds of appeal challenge the manner in which the issue was left to the jury.
The defendant was 25 when he killed the other prisoner. The following facts are common ground. He had been a disturbed and aggressive child. There were episodes of violence to others, of cruelty to animals and of fire setting. He was treated as characterised by Attention Deficit Hyperactive Disorder and given the drug Ritalin for about two years until he was twelve. He was in care for a year and then educated at a residential special school for children with emotional and behavioural difficulties until expelled for repeated violence culminating in an assault with a pool cue. He was frequently convicted as a teenager of offences of dishonesty and violence. He had a history of alcohol and drug abuse, both of which had led to brief admissions to hospital following excessive consumption. He is a large man of approximately 18 stone (115 Kg) and a keen user of training weights.
At the age of 20 he was in a sexual relationship of about two years' duration with a young woman, but also with a second woman, Lauren. In August 2005 he went to live with the first. About a week later, on 28 August 2005 he had a row with her, and, leaving their home, went from her immediately to Lauren. Within days, after he and Lauren had had sexual intercourse, he murdered her following, according to him, an argument which ensued when she asked his intentions for the future. He inflicted some 46 stab wounds upon her and stamped repeatedly on her head. According to his own subsequent account he had been intoxicated with alcohol and cocaine when he committed this offence and was regularly injecting steroids. He was on bail at the time. He denied responsibility for the killing to everyone who asked, until pleading guilty abruptly and unexpectedly at court.
While on remand awaiting trial for this first murder the defendant assaulted another prisoner. After conviction, and when detained at HMP Woodhill, he made himself a sharpened knife which was hidden in his cell. Following transfer to HMP Dovegate, a therapeutic prison, he attacked another prisoner only about three months after arrival, breaking his eye socket, cheekbone and jaw. What lay behind that attack, if anything, never emerged; it was not the subject of any prosecution.
The defendant was assessed after the first murder as having a severe personality disorder of the kind variously known as 'dissocial', 'antisocial' or 'psychopathic'. That is characterised by (inter alia) callous unconcern for others, high levels of aggression, a low tolerance of frustration, difficulty in taking responsibility for his actions and a readiness to blame others. At times he nevertheless presented himself as co-operative and keen to engage with therapeutic work. That resulted in the move to Dovegate. He was transferred away from that prison after the attack on the other prisoner, having been heard to say that he would 'fight all the way' if removed. Subsequently, after a period of good behaviour in another prison, HMP Swaledale, his transfer to HMP Grendon Underwood was made at the end of January 2010. Grendon Underwood is, as is well known, a specialist prison entirely dedicated to psychotherapy; those who are sent there are those of whom there is reason to hope they will commit to it and profit from it. Many of its prisoners have committed extremely serious offences. It was there that the present offence was committed only about six months later.
On Sunday 1 August 2010 the defendant went looking in the morning for a fellow prisoner, Coello, who lived on the same wing as he did. Coello was not there, having gone to the chapel. The defendant went away, bided his time, and came back in mid afternoon. He had equipped himself with toilet paper to cover the spyhole in the cell door. He locked the door from the inside to keep others out. He attacked Coello, who was a much smaller man of about 11 stone and 5' 4"tall. It seems that he put him in a headlock and then having got him to the ground stamped repeatedly on his head until he was thought to be dead, and indeed for some time thereafter. Others heard the noise and came to the cell, but the defendant covered the spyhole with the toilet paper. After the attack the defendant returned to his own cell, changed his bloodstained clothes (which another prisoner put in a bin), lay down and smoked a cigarette and, when challenged, denied any part in the killing. He appeared calm and relaxed. Coello was mortally injured, although not in fact quite dead, and could not be saved. When the staff removed the defendant from the wing, he joked with others that he was being re-classified as a category D (low security risk) prisoner and released on licence.
Subsequently the defendant admitted that it was he who had killed Coello. He did not himself give evidence, and indeed absented himself from his trial except on the first day. The issue properly advanced on his behalf was one of diminished responsibility. Although his lawyers could not formally admit that he intended to kill or do serious bodily harm to Coello, the account which the defendant had subsequently given to the psychiatrists left no room for doubt about it. He told them consistently, after the event, that he had determined at least the previous day to kill Coello, along with (so he said) two other (unidentified) prisoners. He told them that he had looked for Coello to kill him in the morning and, not finding him, had returned in the afternoon. Indeed, he asserted that he had taken a spoon with him, intending to eat Coello's brains, but had been unable to split open his skull despite the repeated stamping. He said that he had previously thought about cutting off Coello's face with a razor, as seen in a violent film.
The jury was inevitably told that the defendant was a prisoner and that he was serving a term for an offence of violence, but it was not told of the previous murder. It was told of something of his history in the various prisons, because he relied on his engagement with therapists and on some of his history of violence. It was thus told of the incident at Dovegate in which he had broken the facial bones of another prisoner (paragraph 4 supra).
The defendant put before the jury evidence from other prisoners and prison therapeutic staff that he had spoken before the killing of experiencing increasing violent thoughts. He had spoken of such to other prisoners both privately and in some of the regular group sessions organised by the establishment. One such disclosure, relating to anger at people who had misbehaved towards his mother, was recorded about four weeks before the killing of Coello, but there were also others. He told psychiatrists subsequently that these thoughts had been increasingly dominant, that he had not slept properly the previous night (after, it would appear, deciding to kill Coello and, on his own account, others) and that on the day of the killing his mind was racing. After he had killed Coello, he said, he felt relieved and calm, and had slept well.
It was the fact that Coello had been in prison for rape of a child, a member of his own family. In prison he was engaging with therapy and with the chaplaincy, and his wife was loyal to him. His engagement with therapy led him to speak openly of what he had done, both in group sessions and otherwise. Some of the other prisoners, including at times the defendant, reacted adversely to his speaking graphically of his offence. The defendant was reported by a number of people, both prisoners and staff, as having said at one point about two days prior to the killing, that Coello should not be on the wing he was on, and indeed should be 'put down'. Coello was by no means the only sex offender on the defendant's wing; there were some nine others. The defendant was not the only person who had voiced hostility towards, or annoyance with, Coello.
After the killing and transfer to another prison, and before his trial, the defendant (i) smashed up his cell at the end of October 2010 (ii) severed one of his ears from his head on 18 April 2011, declining to have it surgically replaced, (iii) announced on 1 June 2011 that he was 'having thoughts' of severing the other and (iv) did sever the other ear on 14 July.
Three consultant psychiatrists gave evidence at the defendant's trial. Drs Thirumalai and Joseph had reported respectively in December 2010 and March 2011. They agreed the diagnosis of severe dissocial, or psychopathic, personality disorder. They saw no evidence of any other mental illness. Dr Joseph had addressed future management of the defendant. He concluded that he could not tolerate a therapeutic regime, and specifically that...
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