Neutral Citation Number: [2006] EWCA Crim 3187
Case No: 2003/06451/C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHESTER CROWN COURT
MR JUSTICE STEPHEN RICHARDS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19 December 2006
Before :

LORD JUSTICE PILL
MR JUSTICE FORBES
and
MR JUSTICE HODGE
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Between :

	THE QUEEN	Respondent	
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	MAURICE ALAN JOHN LATUS	Appellant	

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 MR S LINEHAN QC for the Respondent
MR A BARKER QC for the Appellant

Hearing dates : 23 November 2006
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 Judgment

Lord Justice Pill: 
1.	On 19 June 2002 in the Crown Court at Chester before Mr Justice Stephen Richards, Maurice Alan John Latus pleaded guilty to wounding with intent to do grievous bodily harm (Count 5).  Two days later, he pleaded guilty on re-arraignment to an offence of manslaughter (Count 3) where murder had been charged.  On 3 and 4 July 2002, before the same judge and a jury, he was convicted of attempted murder (Count 4) and wounding with intent to do grievous bodily harm (Count 1).  On a separate count of murder (Count 2), separate that is from the killing on which there had been a plea to manslaughter, the jury failed to agree.  
2.	There was an abortive trial on that count for murder, also at Chester, in February 2000 followed by a further order for re-trial.  On 16 October 2003 at the same Crown Court before His Honour Judge Gibbs and a jury, Latus was convicted of that murder. 
3.	For each of the offences, Latus was sentenced by Judge Gibbs on 16 October 2003 to life imprisonment.  The minimum term provided was 16 years.  Latus appeals against the conviction for murder on 16 October 2003, by leave of the full court.  An extension of time of one year and five months was granted. 
4.	The ground of appeal is simple to state.  The conviction is unsafe, it is submitted, because fresh evidence is available which, if admitted, would establish that the appellant was suffering from diminished responsibility at the time of the killing.  The conviction should be for manslaughter.
5.	There were three victims; Julian Sanders, Colin Faulkes and the appellant’s mother.  Faulkes was the subject of the manslaughter count (Count 3), the offence having been committed in June 2001.   The appellant’s mother was the victim of attempted murder (Count 4), the offence having been committed on the day following the killing of Faulkes.  Sanders was the victim of wounding with intent (Count 5) on 29 February 2000 and of the murder now in issue, to the facts of which we now turn.
6.	From about 1985, the appellant lived in the Gatehouse a house owned by Colin Faulkes in rural Shropshire.  The appellant alleged that Faulkes had physically and sexually abused him over many years but that he could not leave the house because he had nowhere to go.  His relationship with his mother was difficult.  She had re-married a much younger man, a pupil of hers, in the early 1980s.
7.	The appellant and the deceased Julian Sanders worked together from 1997 onwards and became friendly.  They saw each other fairly frequently.  Sanders was admitted to a mental hospital twice in 1999 suffering from a drug induced psychosis. 
8.	On 29 February 2000, Sanders attended Shrewsbury hospital with wounds to his forehead and the back of his head.  There was extensive bruising and swelling at the back of his skull.  At the time, he said that he had fallen down a flight of stairs.  He was again an inpatient at a mental hospital from early April to late May 2000.  
9.	Sanders was killed on 27 or 28 May 2000.  His body was found at Cofton Park, a grassed area in outer Birmingham.  CCTV which normally operated in the area had malfunctioned.  The evidence was that Sanders had been killed elsewhere, that the killer had severed the head from the body and travelled to Cofton Park, it was thought by car.  
10.	The appellant was arrested in October 2000.  At interview, he denied any connection with the killing and was released without charge.
11.	The prosecution case was that the appellant had hacked Sanders to death with an axe or a heavy implement with a sharp edge.  Reliance was placed on evidence that the deceased had telephoned the appellant shortly before he was killed.  A watch worn by the deceased a week before his death was in possession of the appellant after the death and the appellant attempted to destroy it.  The appellant was seen driving his car on the day on which Sanders was likely to have been killed.  Reliance was placed on the guilty plea to wounding Sanders with intent in February 2000 as showing animosity towards him.  
12.	The defence case was a denial that the appellant was the killer of Sanders.  At interview, he had stated that the deceased’s injuries in February 2000 were caused accidentally.  The appellant did not give evidence.
13.	The sentencing judge on 16 October 2003 had to consider a conviction for manslaughter based on diminished responsibility and a conviction for murder.  The offences were committed about a year apart, the murder offence being the earlier in time.  When accepting the manslaughter plea in June 2002, Stephen Richards J had before him a report from Dr J D Collins, consultant forensic psychiatrist, based on his knowledge of the appellant as his responsible medical officer.  Dr Collins had been given a detailed account by the appellant of his killing of Colin Faulkes.  In relation to the killing of Sanders, Dr Collins added:
“In relation to the charge Mr Latus is facing in respect of Mr Sanders, I have no medical recommendation to make.  He has consistently denied any involvement in the killing.  Whilst I think it the case that Mr Latus was suffering from a mental illness at the time of Mr Sanders’ death, he has never said anything about him, which would suggest that Mr Sanders was involved in his delusional system or any other aspect of his mental illness.  Under the circumstances, if Mr Latus is convicted of an offence in respect of Mr Sanders, there is no indication at present to suggest that a hospital disposal is appropriate and no bed would be made available for him at Ashworth hospital in relation to this.”
14.	When sentencing the appellant in October 2003, the judge acted on the basis of that and subsequent reports from Dr Collins.  The subsequent reports dealt only with the Faulkes killing.
15.	The appellant sought leave to appeal against his conviction for the murder Sanders,  on grounds unconnected with the present ground.  His application for leave was refused by the single judge on 15 March 2004.  On 29 July 2004, the appellant admitted killing Sanders.  He made the admission to his solicitor, giving an account of what he said had happened.  The solicitor  understandably obtained a further report from Dr Collins.  It is this report which the appellant relies as being fresh evidence for the purposes of this appeal.  
16.	In his report dated 9 November 2005, Dr Collins first confirmed that, before the trial, he advised the appellant that, since he denied killing Sanders, he was “not able to make any decision as to the extent to which [the appellant’s] mental illness had contributed to the offence”.  Dr Collins then recorded in detail the account of the killing given to him.  Dr Collins asked him, properly and in accordance with his professional duty, why he had not given the account pre-trial and why he had denied involvement in the offence.  We will consider later the reasons given by the applicant.  
17.	The appellant’s  description of the killing fitted, in the doctor’s view, the facts insofar as he had been able to establish them and he had no reason to doubt its validity.  Dr Collins considered that there was a “striking similarity” in the aggression of the applicant towards Faulkes and Sanders.  On the appellant’s account, Sanders was involved in his delusional beliefs in much the same way as was Faulkes and that Sanders was perceived to be persecuting him as an agent for Faulkes.  Dr Collins concluded:
“Had Mr Latus given these accounts to me before his trial, I would have considered that he was suffering from diminished responsibility”.  
He said he would have recommended imposition of a hospital order, with restrictions.
18.	The prosecution obtained a report from Dr N M J Kennedy, consultant psychiatrist.  He too heard the appellant’s account of how Sanders was killed and said that,  had he heard that account at the time of the first trial, he would have advised the prosecution to accept a plea of diminished responsibility.  He added that when unwell the appellant “represents a  grave and immediate danger to the public.  There would be a substantial risk of serious violence to anybody about whom he formed paranoid beliefs in the future”.  In a short supplementary report, Dr Kennedy stated that, if the appellant was not telling the truth as to the circumstances of the killing, he would still take the view that the appellant was suffering from an abnormality of mind which was “something that would have globally affected his mental functioning to a substantial degree”.
19.	On behalf of the appellant, Mr Barker QC seeks leave to call as further evidence, that of Dr Collins just described.  Section 23 of the Criminal Appeal Act 1968 provides, insofar as is material:
“(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice-
(a) …

(b) order any witness who would have been a compellable  witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and
(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.”
20.	It is common ground that the requirements of Section 23(2)(a)(b) and (c) are satisfied.   Mr Barker submits that it is necessary and expedient in the interests of justice to receive the evidence and that there is a reasonable explanation for the failure to adduce the evidence at the trial.  The appellant should be sentenced on the basis of the up-to-date medical evidence, as to what his mental condition was at the time of the killing of Sanders.  It was not adduced at the trial because the appellant sought to deny any involvement in the killing. It is further submitted that the appellant’s mental condition at the time of the offence was such as to affect his responsibility for decisions taken before and at the trial including the decision to deny the killing.
21.	For the prosecution, Mr Lineham QC submits that it would subvert the trial process to permit an appellant to mount on appeal an expert case which, if sound, should and could have been advanced before the jury.  Further, the current medical opinion depends on acceptance of an account of the killing given by the appellant, the accuracy of which is in issue and is to be seriously doubted.  The appellant knew of the partial defence of diminished responsibility because it was adopted, and accepted, in relation to the murder charge involving Faulkes,  heard at the same time as the first trial of the murder charge involving Sanders.  The appellant had determinedly and persistently lied about his involvement in the killing of Sanders.  He had been interviewed under caution in October 2000 for over 4 hours.  The appellant  answered detailed questions and throughout denied any involvement in the killing.  
22.	There have been cases in which fresh medical evidence of diminished responsibility has been admitted in this court notwithstanding a denial at trial of involvement in the offence.  In R v Borthwick [1998] Crim LR 274, the court held that if there was overwhelming or clear evidence that a defence of diminished responsibility would have succeeded and that it was the mental illness itself that caused the defence not to be run, the interests of justice would seem to require the substitution of a manslaughter verdict or at least a retrial.  In R v Ahluwalia (1993) 96 Cr.App.R 133, fresh medical evidence was admitted when a medical report available at the trial was overlooked or not further pursued and the appellant was not consulted about it.  However, Lord Taylor of Gosforth CJ stated, at page 142:  
“Ordinarily, of course, any available defences should be advanced at trial.  Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial.  It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence [diminished responsibility] to be raised for the first time here if the option had been exercised at trial not to pursue it.  Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences.  Nothing could be further from the truth”
23.	In the earlier case in R v Straw [1995] 1 All ER 187, the court refused leave to call fresh medical evidence when an appellant who was capable in law of taking the decision as to how her case should be put before the jury and, with full advice as to a defence of diminished responsibility, declined to allow it to be put before the court.
24.	In R v Neaven [2006] EWCA Crim 955, this court, Rix LJ presiding, drew, at paragraph 41, this guidance from the authorities:
“(1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards tactical decisions, remain fundamental. (2) That it therefore takes an exceptional case to allow it to be in the interest of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility.  However, subject to this, (3) each case turns on its own facts.  Therefore, (4) where the evidence of  mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (In the absence of opposition from the appellant himself – see Kooken) to admit it. (5)  This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant’s illness itself. (6) The emerging only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of offence.”
25.	Doubts have been raised by the prosecution as to the accuracy and frankness of the appellant’s present account of how Sanders was killed.  The prosecution case remains that it was a deliberate killing, whereas the appellant denies an intention to kill.  Doubts have been raised as to the credibility of the entire account now given by him.  Evidence, probably including pathological evidence, would be required in any attempt to resolve them.  It is not, in our view,  necessary or appropriate for this court to attempt to resolve them.  
26.	The potential relevance of the issue, apart from the issue of whether the appellant had been  frank with the court, is that Section 2(1) of the Homicide Act 1957, which defines the partial defence of diminished responsibility, requires that the abnormality of mind substantially impaired the defendant’s  mental responsibility for his acts and omissions in doing or being a party to the killing, the burden of proof being, by virtue of section 2(2) on the defence.   The impairment of mental responsibility must be for the “acts in doing the killing”.  Until it is decided what those acts were, the link, if any, between the impairment and the killing cannot be established.  There is no doubt that  Dr Collins, very understandably in our view, was not prepared to express an opinion about diminished responsibility in relation to the charge involving the death of Sanders at the time of the appellant’s trial.
27.	That point, however, is not central to our deliberations in this particular case.  If the point were to be crucial, the defence would rely on alleged similarities between the killing of Faulkes and the killing of Sanders to establish that, whatever the precise acts, the defence of diminished responsibility should cover both killings.  
28.	Analysis is required of the appellant’s decisions at the time of the first and the second trial.  At the first trial, a plea of diminished responsibility was accepted in the count involving Faulkes.  We have no doubt that its possible availability in the count involving Sanders was fully explained to the appellant by his legal advisors.  He decided to plead not guilty.  He was asked about that when interviewed by Dr Collins prior to him writing his report of 31 October 2005:
“When I asked Mr Latus why he had not given this account of the killing to us when he was in Ashworth on remand, and why he had denied any involvement in this offence, he gave me a number of reasons, as follows:
1.	He admitted that he was trying to achieve “damage limitation … I  hoped to get away with it.   There wasn’t much evidence”.
2.	He feared that, if he had given this account, people would have thought he was making it up.
3.	He thought that this crime was so terrible that people would be horrified by what he had done and not wish to associate with him.
At the time of his trial, he was still not really sure whether he had a mental illness or not.  He acknowledged that he had been told this often enough at Ashworth, but he was still convinced that he had been repeatedly attacked at night in the caravan and, as far as he was concerned, there was evidence to prove it, eg the pain in his knees and the various marks on his body that he had identified.
4.	He said that, whilst he knew that killing someone was wrong, he had thought, at the time, that he was justified as he had been the victim of repeated, serious, unprovoked assaults for many months.  However, he did not see any way of making his story seem credible to others.  He pointed out that he has never gone to the police either, his view being that, if he had done so, “they would have just laughed me out of the station.” 
29.	While, under point 3, the question of mental illness was raised, these explanations demonstrate what the prosecution have fairly described as a deliberate tactical decision not to allow the defence of diminished responsibility to be investigated because the appellant believed that he had a good chance of acquittal based on his denial of any responsibility.  We cannot accept the submission that it was the mental illness which gave rise to these attempts to evade responsibility.  Moreover, the appellant’s conduct after the killing, by way of attempting to dispose of the body and by his persistent denials of involvement tend to  confirm the statement he made to Dr Collins that he “hoped to get away with it”.  He persisted in his denial following his arrest for the killing of Faulkes and his “hope” succeeded to the extent of a jury disagreement on the Sanders count at the first trial.   The appellant persisted in denying involvement at the time of the retrial at which he was convicted and until his application for leave to appeal had been refused.
30.	This is not a case in which the decisions made by the court in, for example, Borthwick and Ahluwalia can be followed.  In our judgment, no reasonable explanation has been given for the failure to adduce appropriate medical  evidence at the trial and it is neither necessary nor expedient in the interests of justice to admit it now.  If it is necessary to state it, we state that this involves no criticism whatever of the conduct of  Dr Collins at any stage.  We agree with, and apply, the principle stated by Lord Taylor CJ in Ahluwalia, and cited in paragraph 22 above.  We note that in Neaven, at paragraph 43, the court, while admitting fresh evidence on the basis that the illness had affected the defendant’s ability to give rational instructions, stated, at paragraph 47:
“As stated above, we have no doubt that the principles in favour of one trial and against changing tactics remain of paramount and fundamental importance.”
31.	For the reasons given, leave to call further evidence was at the hearing refused.  It followed that the appeal was dismissed.