R v Melville
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 06 November 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J1106-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2598/B/73 |
| Date | 06 November 1975 |
[1975] EWCA Crim J1106-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Widgery)
Mr. Justice O'Connor
and
Mr. Justice Lawson
No. 2598/B/73
SIR HAROLD CASSEL, Q.C. and MR. R. TROTT appeared on behalf of the Appellant.
MR. A. McCOWAN, Q.C. and MR. T. NASH appeared on behalf of the Crown.
On the 4th May, 1973 at Chelmsford Crown Court before Mr. Justice Eveleigh this Appellant was convicted of the murder of one Cyril Headley and he was sentenced to life imprisonment.
He now appeals against his conviction by leave of Mr. Justice Lawson, and he has applied to call additional evidence which was not available before the Court below dealing with his mental condition.
It is not necessary to go into the facts in any detail at all. This man killed a homosexual with whom he had been associating. He did not use a weapon, but he used very considerable force, using his boots and his fists, and there is no doubt that he had entirely lost control of himself for a period at or near the time of the murder.
At the trial the only substantial defence which was run was the defence of provocation, and the jury did not accept that, so that on the 4th May, 1973, as I have already said, a conviction of murder was entered against this man. At no time was his mental condition put under question, and the reason for that is because the medical reports which were available pretrial both made it clear that in the opinion of the highly qualified psychiatrists making the reports there was no medical issue which could be raised.
For example, in the case of Dr. Scott, who made a report on the 20th March, 1973 some months before the trial, he refers to certain abnormalities appertaining to the Appellant, but says there is no disorder of mood or thinking and nothing to suggest psychotic illness. He concluded by saying "He is fit to plead and stand his trial. There is no disability of mind in the McNaughton sense. His mental abnormality does not substantially diminish his responsibility. I cannot suggest any medical defence against the charge."
Dr. Blair, reporting at the same time, also gives a long and very comprehensive report about this man and reaches the same conclusion. He is not suffering from any psychosis or psychoneurosis, nor has he ever suffered from such illnesses in the past. Then the doctor goes on to consider the pros and cons of whether he is a psychopathic personality, and in the end comes to the conclusion similar to that of Dr. Scott that when the crime was committed the Appellant knew what he was doing. He says "He attacked him with tempestuous aggression, in a state of temper which momentarily overwhelmed him." Dr. Blair goes on to say "I do not consider it would qualify him for diminished responsibility under the Homicide Act 1957"
Small wonder, one may think, that no mental issue was raised at all at the trial, and the question was provocation or no, and the jury found against the Appellant.
After he had been convicted he was sent to Wormwood Scrubs and there he came under the care of Dr. Clark and was also seen by Dr. Neville. It is, we think, clear that the main purpose of those examining this man's condition at this time was to consider what advice they might give to the Home Secretary in regard to an order being made under section 72 of the Mental Health Act, 1959 for his detention in a special hospital; but be that as it may, further investigations of his mental condition took place in the months succeeding his trial.
Although such electroencephalograph readings as were available at the trial had shown nothing of abnormality, the E.E.G. readings obtainable after the trial began in some instances to show an abnormality. In particular, as a kind of landmark, on the 29th September, three months after the trial, Dr. Williams found some abnormalities in the E.E.G.
These abnormalities were pursued and considered by other doctors who considered the case. I have already said that a Dr. Neville was involved and also a Dr. Williams, who found the initial abnormality on the E.E.G. The effect of that abnormality and of others subsequently found is, we find, conveniently summarised in the report of Dr. Blair which is given on the 5th April, 1975 before the hearing of this Court. He explained how he has now had to re-consider his views in the light of the E.E.G. evidence which has come before him since the trial. In considering how far the evidence of abnormality helps the accused to prove a state of diminished responsibility, the doctor says this: "The difficulty in accepting this statement in itself is that an EEG tracing on Melville before 29th September, 1973 was normal and tracings afterwards showed 'slight abnormality and eventually no abnormality.'"
Thus, one has what seems to a layman a considerable phenomenon of no abnormality at the time of the trial, abnormality arising and discovered quite soon afterwards and then going away again, and eventually disappearing altogether. That is the summary of the activities of the Appellant's E.E.G. results throughout the time his case was under consideration.
This is not the first time that this kind of situation has occurred. Nor is it the first time in which an Appellant in the position of the present Appellant has sought to call fresh evidence on medical grounds. It is quite obvious, and Sir Harold Cassel does not shrink from it, that in order to succeed in this appeal the Appellant has got to show that the introduction of the evidence with regard to his E.E.G. readings is vital – in other words, that that evidence is enough to get him either a dismissal of his conviction or at least a new trial. Nothing else will help him. In order that he may get the evidence of the E.E.G. readings before the Court he has to have leave from this Court to call the fresh evidence because under section 23 of the Criminal Appeal Act, 1968 fresh evidence is not to be called except with the leave of the Court.
I have said that this is not in any sense a novel situation, and indeed there is a very similar case to which we will make reference now, raising almost exactly the same points but unfortunately never reported. It is a case in this Court tried on the 10th June, 1971. The presiding Judge was Lord Justice Fenton Atkinson and he sat with Lord Justice Stephenson and Mr. Justice Lawton, as he then was. Here again there was a charge of murder, here again there was...
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