R v Neaven
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX |
| Judgment Date | 15 May 2006 |
| Neutral Citation | [2006] EWCA Crim 955 |
| Docket Number | Case No: 2005 00654 D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 May 2006 |
[2006] EWCA Crim 955
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE CROWN COURT
HIS HONOUR JUDGE HODSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Mr Justice Mackay and
Her Honour Judge Goddard Qc
Case No: 2005 00654 D3
Mr David Robson QC instructed by the Crown Prosecution Service for the Crown
Mr Gerard McDermott QC and Miss Laura Bell (instructed by Darwen Law Chambers) for the Appellant
This is the judgment of the court:
On 5 September 2001 in the Crown Court at Newcastle-Upon-Tyne before HHJ Hodson and a jury the appellant, Damian Neaven, was convicted, by a majority of 11 to 1, of murder and sentenced to life imprisonment. He now appeals against conviction, by leave of the single judge who also granted an extension of time, on the ground that at the time of his offence, unknown to himself or his legal advisors, he was suffering from schizophrenia and was entitled to a defence of diminished responsibility. It is submitted that new evidence of his mental illness should be admitted under section 23 of the Criminal Appeal Act 1968, that his conviction should, on the basis of that evidence, be considered unsafe and should therefore be quashed, and that a conviction of manslaughter on the ground of diminished responsibility should be substituted.
The Crown oppose this appeal, on the ground that the decision not to run a defence of diminished responsibility, but instead to rely on a defence of self-defence, was a tactical decision which binds the appellant and prevents him seeking now to advance an appeal based on new evidence of his schizophrenia at the time of his offence, albeit that diagnosis is now accepted. It is not said that he or his legal representatives knew of his condition, or even ought to have known of it, but that he was offered the opportunity of a medical assessment by a court appointed psychiatrist and declined it, instructing his solicitors and counsel that he did not wish to undergo assessment. It is said that this amounts to a form of shut-eye knowledge of what such assessment would or might have revealed.
The background of this appeal is as follows. On 4 March 2001, the deceased, David Huitson, was stabbed twice in the chest by the appellant. One blow entered the heart, and he died of that wound on 6 March in hospital. It was the prosecution case that the appellant had a grudge against Mr Huitson, had stalked and murdered him. The grudge arose out of the fact that Mr Huitson had given evidence against the appellant in previous proceedings when he had been charged with wounding a Mr Harmison and causing damage to Mr Huitson's car. The appellant had served six months of a one year sentence in detention. The earlier incident had occurred in 1997, and he had been released in June 1998.
The appellant gave evidence. He acknowledged the previous incident, but said that the aggression since then had been on Mr Huitson's part. He spoke of two meetings in 1998/1999 when he had met Mr Huitson at a pub or in the street and Mr Huitson had shouted at him. On 4 March 2001 he had gone for a walk after an argument with his girlfriend and had come across Mr Huitson by accident. Mr Huitson picked up a stick and said "Come here". He was unarmed. Mr Huitson pulled a knife on him, holding it in his left hand, but he managed to twist it out of his grasp. He was hit on the head with the stick, and lashed out twice with the knife in panic, and then dropped it. Both spoke to the driver of a passing BMW. Mr Huitson buried the knife in the snow and walked to his nearby home. He, the appellant, spoke to the police. It was self defence.
That account was rejected by the jury. Soon after his conviction the appellant told a probation officer, as well as a girlfriend in a letter, that his story of self-defence was wholly false. It remains unclear, however, on his own subsequent accounts, whether he came across Mr Huitson by accident or because he was following him.
At the time of the killing the appellant, who was born on 7 October 1978, was 22. His psychiatric history extends back to his mid teens, since when he had been in trouble for incidents of violence. In April 1994 his GP referred him to the Young Person's Unit after he had been expelled from school for an assault on a teacher, but the Unit did not see patients whose only reason for referral was violence. In January 1997 he complained to his GP of outbursts of aggression and was referred again to the Unit, but failed to attend. In May 1997 he was referred again by his GP and this time was seen by Professor Hoghugi, who described him as an emotionally immature, impulsive young man who experienced constant, high levels of tension. He was thought to be suffering from longstanding and severe personality disorders. He was recommended for a course of anger and anxiety management, and attended 16 sessions.
In January 1998 the appellant was before the courts on a charge of section 20 wounding and witness intimidation, which had occurred early on in his course. These were the earlier proceedings involving Mr Harneson and Mr Huitson. Professor Hoghugi wrote a report for the courts. He spoke of the appellant's anxiety and anger, but said that the anger management programme was successful since there had been no repetition of violence.
In October 1998, after his six months in detention, his GP referred him again, this time to the Kolvin Unit, but he did not attend his appointment. In July 1999 he was seen as an outpatient by a general adult psychiatrist, complaining of anxiety, paranoia, drug abuse and aggression. He was thought to be suffering from panic disorder and alcohol dependency, set against a background of a paranoid and antisocial personality. He was prescribed an anti-depressant (as he had been before). In September 1999 he took an overdose and was seen as an emergency in outpatients. He was prescribed another anti-depressant and failed to attend any follow-up appointments. In February 2000 he was again seen urgently in outpatients, complaining of mood swings and aggression. He became tearful for no apparent reason. An antisocial personality disorder and drug abuse were diagnosed. He again failed to attend follow-up appointments.
In September 2000 he attended outpatients again after another referral by his GP, complaining of thoughts of violence, which he said came with increasing frequency. He had started following strangers. He was afraid he might seriously harm someone. He became aggressive for no reason and any noise would trigger a panic attack. A personality disorder was again diagnosed. He was referred for further assessment.
In November 2000 the appellant took another overdose. This led to his first psychiatric admission, to Collingwood Court, where he spent about a month. He said that he took the overdose after suffering intrusive thoughts of killing his girlfriend: he had held a knife to her throat while she was asleep, but had felt horrified at what he was doing. He had written a suicide note. He spoke of violent fantasies, and of sexual arousal by violent thoughts. He was seen by a specialist registrar in forensic psychiatry, among others. He was diagnosed as having sociopathic and dependent traits, anxiety disorder and substance abuse. He attended follow up appointments sporadically. In January 2001 he took another overdose, was admitted to hospital but discharged himself. In February 2001 he saw the forensic psychologist and spoke again about his violent fantasies. The killing of Mr Huitson occurred within the next month.
The appellant waived privilege for the purposes of his appeal. The court has before it letters from his senior and junior counsel at trial. Mr John Milford QC (now HHJ Milford QC), in his letter dated 23 March 2005, said that he had discussed the case with the other members of the legal team and had seen the solicitors' files. He referred to a written advice which he had given on 31 July 2001, inter alia as follows:
"I first saw the defendant in consultation on 5 th June 2001. It was then apparent, from medical records, that the defendant has a long standing psychiatric history. On what I read, I considered that it was likely that any psychiatric report on the defendant would be exceedingly unhelpful, in that it was likely that it would conclude that the defendant was dangerous.
The defendant is not unintelligent and we discussed the option of a psychiatric report. His clear instructions were that he did not wish a report to be prepared and he has repeated those instructions on 26 th July 2001. Furthermore, he has refused the prosecution access to his medical records and has declined to be examined by a psychiatrist who wished to report to the Court."
Judge Milford added that the appellant never exhibited any signs of schizophrenia recognisable to a layman; that, as he had never admitted to a murderous intent, there was no question of him entering a plea of guilty to manslaughter on the grounds of diminished responsibility; that the introduction of evidence of his psychiatric history would, on the basis of his medical records, have been fatal to self-defence, that he understood the issues and had made an informed decision.
Mr Barry Robson, the appellant's junior counsel, wrote in similar vein in his letter dated 7 April 2005. He also said that the appellant never exhibited any symptom of schizophrenia recognisable to a layman. He also referred to the solicitors' notes, from which, he said, that it was clear that "diminished responsibility with respect to his...
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Court of Appeal
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