Haddon, R v

J U D G M E N T

1. THE VICE PRESIDENT: On 18th January 1980, at Birmingham Crown Court, following a trial before Stephen Brown J, the appellant was convicted of murder and sentenced to life imprisonment. A further count on the indictment, to which the appellant pleaded guilty, was of sexual intercourse with a 14 year old girl, and for that he was sentenced to 9 months concurrently. A co-accused, Joy Rahman, was found not guilty, by direction, in relation to the first count, which alleged murder. Her plea of guilty to count 3, of causing grievous bodily harm with intent, was accepted by the Crown and she was made the subject of a care order.

2. On 23rd January 1981 the Court of Appeal (Criminal Division) dismissed the appellant's renewed application for leave to appeal against conviction. He now appeals on a reference by the Criminal Cases Review Commission, under section 9 of the Criminal Appeal Act 1995. That reference has been made on a single ground, (although there are other grounds sought to be advanced in the grounds of appeal), namely, new psychiatric evidence from Dr Walsh and Dr Clark, which indicates that the appellant was, at the time of the death of the baby, to which in a moment we shall come, suffering from a personality disorder of a character giving rise to a defence of diminished responsibility.

3. The facts can be very briefly stated for present purposes. The victim was the 10 week old daughter of the appellant and the co-accused. At the time of trial the appellant was 22 and the co-accused 15. The baby died on 18th February 1979 from bronchopneumonia, which was the consequence of a severe fracture of the skull, sustained about a week earlier. There was evidence from a pathologist that the injury had almost certainly been caused by the child being held by the legs and swung against a hard surface. There was also evidence of fractures and other injuries to the baby, which were revealed by X-ray a few days after the appellant had been arrested and he was not interviewed about those other non fatal injuries.

4. So far as the fatal injury was concerned, the appellant admitted hitting the baby on the head but, he said, only with his hand, and he maintained that he had never intended to kill or seriously harm her.

5. He was arrested on suspicion of murder on the afternoon of 19th February. When he was told of the severe head injuries revealed by the postmortem, he said "It's my temper, I lose my temper". He said that he could not stand her crying, his temper kept going and, when it went, he hit her and hit her. He said that the head had swelled up after he had hit her. He claimed only to have hit her with his hand but to have done so really hard. The co-accused, he said, had never hit her.

6. In the course of the evidence which he gave before the jury, he denied inflicting the fatal injuries. But, if he did, he said he had no intention to cause really serious injury. He had never hit the baby with a hard object or thrown her against something hard or mishandled her in any way. He did, in the course of his evidence, make certain allegations against the co-accused that she had neglected the baby during a period prior to the baby's death.

7. The only medical report obtained at the time of trial was from Dr Washbrook, the prison doctor, who reported on 15th August 1979. That report concluded that, although the appellant had been brought up in very poor circumstances, and dislocation and emotional deprivation had been the hallmarks of his formative years, he showed no abnormality in attitude, mind, manner or behaviour and there was no evidence of mental illness. His IQ was within the dull/normal range. He was clinically immature and emotionally retarded but there was no history of disturbed behaviour sufficient to warrant a diagnosis of psychopathic disorder. There was a social enquiry report, which referred to the appellant having been sent, at the age of 14, to a classified school, following repeated bullying by him of younger children. He was referred to in that report as "a withdrawn immature young man, of low intelligence, who was emotionally insecure".

8. The course which the proceedings have taken before this Court today has been this. Mr Gledhill, on behalf of the appellant, without objection by Miss Curnow QC, who represents the Crown, has called Dr Walsh and Dr Clark to give evidence. The stance of the Crown at the opening of the appeal was that they wished, perfectly properly, to test the evidence of those two doctors. In the course of a careful cross-examination of both of them, by Miss Curnow, many features of the appellant's history, as revealed by the abundant records upon him which have accumulated during the 22 years or so of his incarceration, have been explored.

9. Very properly, at the conclusion of her cross-examination of the second of the doctors, Miss Curnow, on behalf of the Crown, accepted that, as she put it, "patently, if this evidence had been available at trial, it would have led to a different verdict".

10. In the light of that entirely proper and realistic stance, the substance of the evidence given by the two doctors, and the circumstances in which their reports came to be made, can be very shortly rehearsed. Dr Walsh a consultant psychiatric reported in June 1998, at the request of the appellant's solicitors, in relation to a Parole Board hearing. For it is one of the striking features of this case that, although the tariff period recommended that he should serve at the time of trial was one of 10 years he is, as is apparent from what we have already said, still incarcerated.

11. Dr Walsh's opinion, in June 1998, was that the appellant suffered from a severe personality disorder, with elements of a number of specific personality disorders as defined in the tenth revision of the International Classification of Diseases (mental and behavioural disorders) colloquially refer to as ICD 10. Dr Walsh pointed out that personality disorders, particularly if unmodified by therapeutic intervention, tend to remain stable over time, and, in adults, are usually traceable to adverse childhood experiences. She took the view that the appellant's disturbed and deprived early life was clearly relevant to his development of the severe disorder which she identified.

12. In her view, he came within three categories of personality disorder as defined by ICD 10, namely, anxious personality disorder, dissocial personality disorder and paranoid personality disorder. She pointed out that his psychological difficulties had long been recognised and his medical reports showed on-going concern for his mental state. She concluded that he would continue to pose a risk to women with whom he came into contact and to any children for whom he had responsibility. In Dr Walsh's opinion the appellant, at the time of the offence, had suffered from the severe personality disorder from which he still suffered and this constituted an abnormality of mind in the terms of section 2 of the Homicide Act 1957. In consequence, his mental responsibility for his acts would have been impaired substantially by a number of feature, including feelings of intense jealously towards his partner and child, difficulty in relating to and respecting the baby as a separate other, mood instability, social phobia and mounting sense of feeling overwhelmed by the problems which he faced in the parenting task in the relation to this child. She concluded that his condition would meet the criteria for psychopathic disorder within the definition of the Mental Health Act 1983.

13. Other psychiatric reports were obtained from Dr Resnick on 9th September 1999 and Professor Duggan on 29th March 2000, to which it is unnecessary, for present purposes, to refer.

14. The Criminal Cases Review Commission obtained a report from Dr Clark, a consultant forensic psychiatrist at Rampton Hospital, approved also by the purposes of section 12 of the Mental Health Act. The Criminal Cases Review Commission very properly with Dr Clark, as they did also with Dr Walsh, a number of specific questions in relation to the conclusions of the two doctors about the appellant's mental state at the time of trial. The Criminal Cases Review Commission were, understandably in the light of the authorities in this Court, which require a degree of scepticism to be exercised in relation to psychiatrically based defences advanced many years after trial, anxiously explored among other matters, whether the appellant's state of mind, as it now presents, might have developed subsequently to the time of trial, by reason of his incarceration. The Criminal Cases Review Commission also, very properly, explored the question of whether or not the doctors might be being manipulated by the appellant in his account of matters, which necessarily, formed a central plank leading to the conclusions of both doctors.

15. It is to be noted that the classification and criteria now set out in ICD 10 were not available at the time of Dr Washbrook's report. It is also to be noted that, in the course of her evidence, Dr Walsh expressed the view that Dr Washbrook's reference to clinical immaturity and emotional retardation would, to her mind, have rung alarm bells as they were features indicative of personality disorders and would in her judgment have required further investigation. (The Criminal Cases Review Commission sought to obtain the views of Dr Washbrook, but was unable to obtain any response to its letters). Dr Walsh expressed the view that there was nothing to show any inconsistency in the appellant's account. On the contrary, one of its striking features has been its marked consistency over the years. We interpose the comment that, at the time of trial, the appellant was denying having caused the injuries to the baby. But it was not very long after the trial that he admitted the he had indeed caused them.

16. In a second report, in June 2001, Dr Walsh dealt with the questions posed by the Criminal Cases Review Commission and she adhered to the conclusions which she had expressed in her 1998 report.

17. She said that, although the appellant's mental health appeared to have deteriorated during his time in prison, the manifestation and pattern of his personality disorder had become clearer and some of the traits more marked. But the basic disorder, which had not been appreciated at the time of the trial, although it was present at the time of the offence, was unchanged. She referred, for example, to the fact that the appellant's jealousy of his daughter did not emerge at trial could be explained by shame and fear of punishment and lack of perception. But he has, in more recent times, come clearly to express that jealousy. She concluded that it was unlikely that he was trying to manipulate his circumstances. She also expressed the view that the appellant may well initially, that is to say by the time of trial, have understated his jealousy of the child's mother. That jealousy might have compounded and increased his hostility towards the child.

18. Her conclusion, to which she adhered in the evidence before this Court, was that the appellant was, at the time of the offence, suffering from an abnormality of the mind, of the kind which we have already identified, which substantially impaired his responsibility.

19. Before Dr Clark reported he had no prior discussion with Dr Walsh. Indeed Dr Walsh only saw Dr Clark's report a couple of days ago and there was no discussion between them before they each compiled their respective reports. Dr Clark reached a similar conclusion to Dr Walsh, namely, that the appellant was suffering from a personality disorder, within the criteria in ICD 10, at the time of the offence. Dr Clark considered not only the appellant's account but various objective assessments which were unequivocal in identifying abnormalities in the appellant's relationships and functionings. He fulfilled, in Dr Clark's view, three of the criteria for paranoid personality disorder, within ICD 10, (whereas four are needed for a full diagnosis), and he met the relevant criteria for anxious personality disorder.

20. His personality disorder was linked to abnormally aggressive and seriously irresponsible behaviour towards the baby and his personality disorder should therefore be defined as a psychopathic disorder. That disorder would have existed, he said in evidence to this Court, from the appellant's late teenage years. Therefore it was almost certainly present at the time of the offence. He said there is no other explanation for accounts for his behaviour other than long-standing personality disorder, which cannot be accounted for simply by the effects of incarceration. His feelings of anger, irritability and jealousy were of an entirely different nature and degree from the ordinary frustrations and emotions of a young father.

21. So far as Dr Washbrook's report was concerned, Dr Clark drew attention to the likelihood that the appellant at the time was unable or unwilling to discuss those matters which are now relied on as demonstrating the personality disorder from which he suffers. Dr Clark referred to the disorder as a profound one existing at the time of the offence, but not then appreciated and which had only become more manifest over time.

22. In the light of that evidence, this Court is of the clear view that, had a jury had such evidence before them, they are unlikely to have convicted the appellant of murder. That being so, this appeal is allowed. His conviction of murder is quashed and, exercising the powers which we have, under section 3 of the Criminal Appeal Act 1968, we enter a verdict of the lesser offence of manslaughter, by reason of diminished responsibility.

23. So far as the appropriate sentence is concerned, it is to be noted that, in the course of their evidence, both Dr Clark and Dr Walsh expressed views as to the risk still presented by this appellant. But it is not possible to deal with the question of sentence today because, as was helpfully notified to the court in advance of today's hearing, the witness whom the appellants wish to call on this aspect of the matter is not available.

24. Accordingly, with regard to sentence, the matter will be adjourned. The appellant will remain in custody where he presently is. The case will be re-listed as soon as practicable in a constitution of this Court in which I preside.

25. THE VICE PRESIDENT: Anything else, Mr Gledhill?

26. MR GLEDHILL: No, not at this stage. One concern I have is that his remand at present at Rayside is pursuant to a transfer under section 47 of the Mental Health Act which in turn rests upon the sentence having been imposed by the original court. I am just concerned about the legality, given that the conviction has now been quashed, of his current remand to Rayside without a specific direction from this Court, perhaps under section 35 of the Mental Health Act, which is the power of the court to order a medical report which includes a power to remand to hospital for the purposes of a medical report. Can I say, I apprehend it is unlikely-

27. THE VICE PRESIDENT: I cannot see anybody is going to challenge it.

28. MR GLEDHILL: I cannot see-

29. THE VICE PRESIDENT: I have said that he remain where he is. I am bound to say I had not specifically applied my mind, we had to say that.

30. MR GLEDHILL: Yes, it is, as it were, a technical problem which may arise if those advising wish to take the point. I suspect it will not happen in the practical world but, at the same time the court has to make-

31. THE VICE PRESIDENT: It is obviously desirable that this Court has a medical report, it may be other than the one on which you are seeking to rely. So we can readily direct that a medical report be obtained upon him. What is the section.

32. MR GLEDHILL: Section 35 of the Mental Health Act 1983.

33. THE VICE PRESIDENT: 1983, yes.

34. MR GLEDHILL: The power of the court to order a medical report and remand the accused to hospital, if it is not practicable to obtain the report whilst on bail. There is no suggestion that it is practicable to obtain this report whilst he is on bail.

35. My Lord, can I perhaps leave it this way. If we have any concerns or there is any indication of any concerns from the Rayside clinic as to the legality of them holding Mr Haddon, pursuant to the simple direction that he remain where he is, then I will undertake to draw that matter to the attention of the Court.

36. THE VICE PRESIDENT: We direct that a medical report be prepared.

37. MR GLEDHILL: If needs be, if there are any concerns, they can be informed their power is under section 35 in any event.

38. THE VICE PRESIDENT: Yes. If any anybody has any concerns before the matter is re-listed before me, they must make an application to me.

39. MR GLEDHILL: I will make sure that is done if needs be.