R v Erskine; R v Williams

JurisdictionEngland & Wales
Judgment Date14 July 2009
Neutral Citation[2009] EWCA Crim 1425
Docket NumberCase No: 2007/03621/B2 (1)
CourtCourt of Appeal (Criminal Division)
Date14 July 2009
Erskine (1)
Williams (2)

[2009] EWCA Crim 1425

Before : The Lord Chief Justice Of England And Wales

The Rt Hon Lord Justice Thomas


The Hon Mr Justice Treacy

Case No: 2007/03621/B2 (1)

2008/00248/C4 (2)







Mr Edward Fitzgerald QC and Mr Paul Taylor for the Appellant

Mr Mark Ellison QC and Miss Zoe Johnson for the Prosecution

Mr Alun Jones QC and Miss Andrea Brown for the Appellant

Miss Lynn Tayton QC and Mr J Kirk for the Prosecution

Hearing date: 7 th May 2009

Hearing date: 6 th May 2009

The Lord Chief Justice of England and Wales:



These appellants were properly convicted of murder in unconnected trials many years ago. They now argue that their convictions should be quashed and substituted by convictions for manslaughter on the grounds of diminished responsibility. In Erskine there was powerful evidence available at trial which would have supported the defence: in Williams there was none. Neither advanced the defence: indeed Williams pleaded guilty to murder. The question for decision is simple: in relation to each appeal, exercising the jurisdiction provided by section 23 of the Criminal Appeal Act 1968, as amended, do we think it necessary or expedient in the interests of justice to receive evidence which was not adduced at trial?


This simple question has involved the preparation of a substantial bundle of authorities and extensive citation and analysis of previous decisions of this court. We imply no criticism of distinguished leading counsel. Their forensic technique has been sanctioned by this court. It has become the modern way of addressing legal principle both on appeal and in the Crown Court itself.


Various factors have contributed to the process. These include the stark reality that every single judgment of this court is now available to the advocate, whether it was reserved or unreserved, whether reported or unreported. Understandably, the advocate doing his duty by his client seeks to identify each and every case which even remotely appears to bear on the principle under consideration or which has some passing factual similarity to the one with which he is immediately concerned. The development of legal argument in the criminal justice process is therefore both much more complex and, we venture to suggest, more rebarbative and less focussed than it used to be. Added to these considerations, there has been something of a convention that this court should at least mention authorities referred to by the advocate in oral submissions, and this tends to add yet one more authority to the existing compendium. And so, like Topsy, the process has grown, and lengthened, and continues to grow and lengthen without the slightest discernable improvement in the doing of justice in the individual case and to the delay and disadvantage of the administration of justice generally. What is abundantly clear is that without a fresh approach to the way in which authorities are used in the course of forensic argument the administration of criminal justice will be suffocated.


We shall examine this process as it applies in these appeals after setting out the essential facts.


The appeals were heard consecutively. In both cases an unusual course was taken in relation to the evidence.

The taking of evidence


Under s.23 (4), the Court may

if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in a manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.


The powers under this sub-section were used in Stafford & Luvaglio (No. 2) (1972) 57 Cr. App. R. 203 and in Saunders (1973) 58 Cr. App. R. 248, but have rarely been used since then. In the present appeals, although it was clear that there were differences in the opinions of the experts, none of the differences turned on issues of credit. It was desirable to hear these two appeals together, but very difficult to find a time when all the experts and counsel were available. It was therefore proposed that the evidence of the expert psychiatrists be heard in each case by one of the judges who was to hear the appeal on separate days at a time that was convenient to those in each case. The evidence in relation to Williams was heard before Thomas LJ on 16 March 2009 and in relation to Erskine on 21 April 2009.


Ahead of the hearings of the evidence, and indeed when the evidence was heard, and then again, in advance of the hearing of the argument before the Full Court on 6 and 7 May 2009, the areas of disagreement between the experts were clearly identified and then refined. At the appeal transcripts of the evidence were made available to counsel and the court. Thus the hearings took place with a much clearer focus on the evidence actually before the court and its relevance to the submissions and were comfortably concluded within two days rather than the four to five days would otherwise have been needed.


9. Counsel in both appeals stressed the advantage to them of being able to consider the expert evidence in advance of the legal argument. They accepted that in future it would sometimes be helpful to allow an interval between the hearing of the expert evidence and the listing of an appeal, thus providing an opportunity for reflection. In appeals involving complex and lengthy expert evidence we agree that such an opportunity would be sensible.


We therefore suggest that when directions are given in a case involving expert evidence that the court should consider, apart from the usual directions regarding the exchange of expert reports and a meeting of experts (under Part 33 of the Criminal Procedure Rules), whether the expert evidence should be heard on commission before one of the judges who will sit on the appeal, or whether it should be heard in advance of the legal argument by the Full Court that is to hear the appeal, or whether it should be heard immediately prior to the legal argument as part of one continuous hearing. The considerations that the court may wish to take into account will include whether any significant issues of credit are involved, the nature of the evidence, its complexity, its length, the scope of the dispute, its relative importance in the appeal and the availability of the experts.

Kenneth Erskine – the facts


Kenneth Erskine (the appellant) is now 45 years old. Just over 20 years ago, on 29 January 1988, at the Central Criminal Court before Rose J and a jury he was convicted of 7 counts of murder and 1 count of attempted murder. He was sentenced to 7 concurrent terms of life imprisonment for murder, with a recommended minimum term of 40 years, and for attempted murder he was sentenced to 12 years imprisonment concurrent. This is an application for an extension of time of virtually 20 years for leave to appeal against conviction and sentence.


We must begin by recording, as briefly as we may, the facts of a series of dreadful killings by the appellant of elderly people which took place during 1986.


In early April 1986 a woman suffering from senile dementia, 77 years old, was killed in her own home. She was the victim of a violent attack. She died as a result of manual strangulation. The appearance of her anus was said to be consistent with intercourse or penetration while still alive, but probably unconscious at the time.


In early June 1986 a woman, 68 years old, living alone in her flat, was violently attacked and manually strangled. Her injuries suggested that the appellant was kneeling on her chest while he strangled her. There was also evidence to suggest some sexual interference.


On 27 June 1986, in the early hours of the morning, a man aged 73 was lying in his bed in an old people's home when he was attacked. The appellant jumped on top of him and attempted manually to strangle him with his hands, but he was able to struggle and resist, and after about 5 minutes attempting to strangle him, the appellant suddenly desisted and left.


On the next day a man, aged 81 was killed in the old people's home where he lived. He was a victim of considerable violence and a violent sexual assault, and was killed by asphyxiation caused by manual compression of the neck.


On the same date, after a violent assault, another resident in the same home, aged 94, was also asphyxiated to death by manual strangulation while the appellant was kneeling on his chest.


A few days later, in early June 1986, an 82 year old man was killed in his own home. Again he was the victim of a violent attack, and he was sexually assaulted. He died as a result of manual compression and fractures of the neck.


About a fortnight later, another man, aged 74 years was killed in his own home. Again, after a violent attack, he died from asphyxiation as a result of manual strangulation and the obstruction of his airways by pieces of cloth and tissue stuffed down the back of his throat. Again, the injuries to his body suggested that the appellant knelt on his chest to kill him.


The last murder occurred a few days later. An 83 year old disabled and virtually blind woman, living alone in her flat, was killed, after a violent attack. She died as a result of asphyxiation...

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