R v Weekes (Stephen)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann,LORD JUSTICE SCHIEMANN |
| Judgment Date | 18 February 1999 |
| Judgment citation (vLex) | [1999] EWCA Crim J0218-1 |
| Docket Number | Case No: 980/3778/X4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 February 1999 |
[1999] EWCA Crim J0218-1
Lord Justice Schiemann
Mr Justice Hughes and
His Honour Judge Stephens
Case No: 980/3778/X4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE HUTCHINSON
CENTRAL CRIMINAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
MR. RUMFITT Q.C. [MR S THOMAS] appeared for the Appellant
MRS. POULET Q.C. appeared for the Crown
(Approved by the Court)
On 22 May 1998 in the Central Criminal Court before HH Judge Hutchinson the appellant, a man of previous good character, was convicted of murder and sentenced to life imprisonment. At the trial he put forward evidence of self defence and provocation which were rejected by the jury in less than an hour. He appeals against conviction by leave of the single judge. No complaint is made as to the conduct of that trial or as to the summing up. Counsel on his behalf before us sought leave to adduce evidence as to his mental state at the time of the killing. In the light of that evidence he seeks to persuade the court to substitute a verdict of manslaughter by reason of diminished responsibility for the verdict of murder.
Before the trial there were reports from psychiatrists, 2 instructed by the defence and one by prosecution, each of which agreed that the accused at the time of the killingwas suffering from a paranoid psychotic illness which would have substantially impaired his mental responsibility for his acts. He was not regarded as insane as defined by the M'Naghton rules.
However, psychiatric opinion based on interviews the last of which was 3 weeks prior to the time of the trial was that he was fit to plead and was of at least average intelligence. Although the prosecution had indicated prior to the trial that a plea to manslaughter would be accepted if proffered and although he was advised by leading and junior counsel that it would be in his best interest for psychiatric evidence to be called, he refused to allow them to do so. At their request he signed a document on the first day of the trial which stated
"I have been told by my barristers in this case that I have a defence to the charge of murder based on diminished responsibility as well as the defence based on self-defence. Both of my barristers have advised me that it would be in my best interest to allow them to call medical evidence in my trial so that the jury can decide the issue of diminished responsibilities. I have decided to reject that advice. I am fully aware that this makes a conviction for murder more likely. I have been told that this would involve a mandatory life sentence. It could also involve me being transferred to a mental hospital during my sentence. Nevertheless, I refuse to allow any medical evidence to be called during my trial".
The position was explained to the judge in chambers and the judge pointed out that he was powerless in those circumstances. S.2 of the Homicide Act 1957 makes it clear that it is for the defence to prove that the person charged is, by virtue of that section, not liable to be convicted of murder. If no psychiatric evidence is called the judge can not leave the defence of diminished responsibility to the jury.
The judge is not and can not be criticised. Nor can the prosecution be criticised —it would not have been proper for them to have led evidence as to the accused's mental state when he wanted to put forward self-defence as a defence.
Having been convicted, and having given the matter further thought, the defendant instructed his lawyers to ask for permission to adduce the evidence which was available at trial and further evidence indicating that defendant's judgement at the time of trial would have been seriously affected by his mental illness and that this might well have prevented him from coming to a reasoned judgement about his plea.
Mrs. Poulet Q.C., who appears on behalf of the prosecution, resists the application to admit new evidence but concedes that, if the new evidence is admitted, then this court has a power which it should exercise in the particular circumstances of this case, to quash the conviction for murder and substitute a conviction for manslaughter. In the light of that concession her resistance to the application to admit new evidence was made so that she might apprise the court of the public policy considerations which militate against the admission of evidence on appeal which was available at the trial.
There have been a number of cases in which this court has been faced by the difficulties which arise when a defendant chooses not to call evidence at trial and then wishes to call that evidence on appeal. In general applications to that effect are rejected on the basis that a defendant must put forward his whole case at trial and that it is not in the interests of justice to permit him to put forward his case with different evidence before different tribunals. If in a particular case that results in a conviction which he could have avoided by leading the appropriate evidence at the appropriate time then that is the price he must pay for having chosen not to lead that evidence at the appropriate time.
Difficulties however can arise in circumstances where a defendant is suffering from mental illness? To what extent is he to be bound by the general rule? If he is so ill that he is unfit to plead the problem does not arise. However, situations can and do occur when a defendant is known to be mentally ill but his illness is such that he is nevertheless fit to plead. The facts vary infinitely and the case law shows that sometimes this court has allowed the evidence to be adduced and sometimes it has refused.
The Court's powers are set out in s.23 of the Criminal Appeal Act 1968:-
"(1) For the purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice —
(a) ….
(b) ….
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) the Court of Appeal shall in considering whether to receive any evidence have regard in particular to —
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
As long ago as 1971 in R v Dodd (unreported 10 June 1971), Fenton Atkinson LJ, Stephenson LJ and Lawton J, dealing with a case in which the medical evidence at time of trial had been against diminished responsibility but there was said to be fresh evidence in favour of it, said this:
"In the view of this Court, cases must be rare indeed when the defence have chosen to run at the trial as their only defence the defence of accident or provocation, or a combination of the two, and when that defence has failed can consult and call a psychiatrist, or a psychiatrist seeing the appellant for the first time many months after the event, with a view to getting a retrial to run a defence of diminished responsibility. It may well be that if subsequent evidence of diminished responsibility was really overwhelming, the Court might well fell moved to substitute a verdict of manslaughter, or to order a new trial."
Those observations were repeated and endorsed in R v Melville (1976) 62 Cr App Rep 100. In neither case was the evidence of diminished responsibility available at the trial and in neither case was it overwhelming. In neither case was it admitted.
More recent case law includes R v Straw [1995] 1 All ER 187 (decided in 1987, in which the evidence was not admitted), R v Steven Jones [ 1997] 1 Cr. App. R 86 (in which the evidence was not admitted, but in which the conviction was upheld) R v Borthwick [1998] Crim. L.R. 274 and Transcript 96/7084/X5, a decision of Waller LJ and Smedley and Sullivan JJ on 27.10.1997 in which the evidence was admitted and on 18. 5.1998 a verdict of manslaughter substituted for that of murder) and R v Shah (Unreported 94/00393/Y5, a decision of Kennedy LJ and Butterfield and Richards JJ on 30.4.98 in which the evidence was not admitted). There is no indication in the later cases that Straw was drawn to the attention of the court although we are told by Counsel that it was referred to in the relevant editions of Archbold.
Shah was a case in which this court found the appellant's evidence not capable of belief and where there was no unanimity of view between the psychiatrists in favour of a diagnosis that the conditions set out in s.2 of the Homicide Act were fulfilled. Moreover, the court's view of the value of the evidence of those psychiatrists whose evidence supported the appellant was to a degree coloured by the fact that this evidence was based on what the court regarded as an unreliable account of the patient's history. The Vice-President said this at page 25 -
We accept that in some cases where the issue of diminished responsibility is not raised at the trial the explanation may be found in the same medical condition which is said on appeal to furnish the appellant with a defence. For example, in the recent case of Borthwick 27th October 1997 unreported, this court considered the possibility that an appellant said to be a paranoid psychotic, may not have been able to give rational instructions as to the way in which his defence was to be run. But that is not this...
To continue reading
Request your trial
-
R v Diamond (Stewart Michael)
...the position in R v Gilfillan [1998] EWCA Crim 3466, R v Haddon [2003] EWCA 284 and R v Ashton [2006] EWCA Crim 1267. In R v Weekes [1999] 2 Cr App R 520, [1999] Crim LR 907 there was undisputed evidence available to the crown and the defence at trial, but the defendant had refused to defen......
-
Adrian Jones (Deceased) v R
...accepts demonstrates diminished responsibility ( e.g. R v Borthwick [1998] Crim LR 274, R v Gilfillan, unreported 7 December 1998 and R v Weekes [1999] 2 Cr App R 520; in the latter case the essential fact was the “ plain and undisputed” evidence at trial that the defendant's decision not......
-
R v Hampton; R v Brown
...1 Cr App R 199; R v Shah (unrep. 30 April 1998); R v Gilfillan (unrep. 7 December 1998); R v Borthwick [1998] Crim LR 274; R v Weekes [1999] 2 Cr App R 520 and R v Pendleton. 100 In addition to those cases we were referred to other cases, in particular: R v Shields and Patrick [1977] Crim ......
-
R v Neaven
...decision to rely on self defence and to eschew a known condition of schizophrenia was significantly affected by the illness: see R v. Weekes [1999] 2 Cr App R 520 at 529. 26 On this question Dr Collins gave evidence that in his opinion the appellant's condition had affected his decisions fo......