Henry, R v

On 4 November 2003 in the Central Criminal Court the appellant was convicted of soliciting to murder and conspiracy to murder and was later sentenced to concurrent terms of four years’ imprisonment. His co-defendant, Donna Bailey, was convicted of the same offences and sentenced to concurrent terms of six years’ imprisonment. He appeals against conviction by leave of the single judge.

The factual background is unusual. Donna Bailey met and befriended a fellow student, Anna, but that friendship diminished and they eventually fell out following a row in February 2003. The case for the prosecution was that Donna Bailey became obsessed with Anna to the point that she and the appellant planned to have her killed by a hitman or (later) to do the job themselves. The offence of incitement was evidenced by contact they had with a man called Headley who introduced them to Robinson. They told Robinson that they wanted a woman killed and they gave him a post-it sticker with Anna’s address on it. Robinson mentioned a price of £5000 and told them to come back to him when they had raised the money. On the following day, when he was stopped by the police for breach of bail conditions in respect of an unconnected matter, Robinson told the police about his meeting with Donna Bailey and the appellant. He made a witness statement and was introduced to an undercover police officer called George.

A week later Robinson and George visited Donna Bailey and the appellant. George was introduced as a hitman from Birmingham. The appellant told Robinson and George that the job was cancelled because of the expense and that he and Bailey would be doing it themselves. Most of the conversation on this occasion was tape recorded on a concealed device. After it had ended, Bailey and the appellant were arrested and the house was searched. Several incriminating items were found, including handwritten notes, maps, plans and details of observations carried out at Anna’s address. A bag containing a syringe filled with liquid, a mask, gloves and binoculars was also found. The liquid was domestic cleaning fluid. Much of the handwriting was that of the appellant, as it was also on the post-it which had been handed to Robinson a week earlier and which he had handed to the police. On the basis of all this (and we are abbreviating the evidence for present purposes), the prosecution asserted that Bailey and the appellant had first sought to incite Robinson but had changed their minds because of the cost and had thereafter conspired together to murder Anna. It was common ground between the prosecution and the appellant that he was a weaker person than Bailey.

The appellant’s defence was that he had never intended that Anna should come to any harm. Bailey was a lying and manipulative obsessive and he had simply played along with her in order to pacify her. Anything written by him was at her dictation. He had not thought that she was serious. When he had told Robinson and George that they were now going to do the job themselves, he was just trying to get rid of them. He had already threatened to call the police if Bailey did not cancel the plan which had previously been imparted to Robinson.

Donna Bailey’s defence was that she had had no thought of having Anna killed but that at the first meeting with Robinson the appellant had suddenly come out with the idea. She sought to distance herself from the handwriting, denying that it had been done at her dictation. It was the appellant who had lined up the hitman and, when Robinson and George had paid a visit a week later, she had just said things to get rid of them.

On behalf of the appellant, Mr Carey QC made no criticism of any ruling or the summing up by the trial judge. He seeks to advance the appeal in this way. Prior to and during the trial, neither Mr Carey, nor his junior nor his instructing solicitor had had cause to question the cognitive skills or intelligence of the appellant as a factor relevant to criminal liability. He presented in a plausible manner except that at one stage prior to the commencement of the trial he had started to behave in a peculiar manner and a psychiatric assessment was called for on the issue of fitness to plead. The assessment resolved that issue and did not raise any medical issue relevant to criminal liability. Accordingly, the trial proceeded without concern in that regard. The appellant continued to present in a plausible way.

After conviction and in anticipation of sentence a report was commissioned from Dr L F Lowenstein, a psychologist. It was prepared for use in mitigation but, following sentence, it became the foundation of this appeal against conviction. When leave to appeal was granted, the prosecution instructed Professor Gisli Gudjonsson, a forensic psychologist, and his report is now relied upon by Mr Carey. The reports are mutually consistent. They lead to the appeal being put in this way. They amount to fresh evidence, not anticipated or realised at the time of the trial but which, if then available, would have been adduced on behalf of the appellant on the issue of his intention. As the jury did not have the benefit of this evidence, and as it is credible but was not reasonably discoverable at the time of the trial, the conviction is unsafe. On behalf of the prosecution, the central submission of Mr Brown is that, on the issue of intention, the evidence of the psychologists would not have been admissible at trial and does not affect the safety of the conviction. By section 23(2)(c) of the Criminal Appeal Act 1968, the admissibility of the evidence at trial is a relevant matter in relation to its receipt in evidence on appeal. Before we address the question of admissibility, it is necessary to summarise the findings of the psychologists.

Dr Lowenstein found the appellant to be an extroverted personality with a number of neurotic traits or psychological problems. He is also an impulsive individual who tries to please others and help them. Testing of his intellectual abilities produced “roughly a 75 IQ score” and would place him with the mental age of approximately 12 years. Dr Lowenstein concluded as follows:

“1.

Mr Henry is a fairly disturbed individual who gives an impression of his intellectual capabilities which is totally wrong. He has a tendency to fail to see the significance of acting by himself leading him into difficulties.

2.

He is easily imposed upon as may be noted by the influence his girlfriend had upon him to commit certain acts which led to his conviction. This is again partly attributable to his low intellectual ability to reason matters out as well as psychological problems which would make him susceptible to fall under the influence of others.

3.

Mr Henry falls into the category of just being above the mentally defective area or what is commonly termed ‘borderline’ defective area of intellectual ability … Mr Henry is a strange man with a Walter Mitty-type of attitude to viewing himself as a clever individual capable of carrying out a crime of a very serious nature and yet not having the mental capacity to see matters through logically and reasonably … It is unfortunate for him that he has a bearing of an intellectual but the capacity of someone of virtually mentally defective ability. While this does not excuse his offences, it does or could provide mitigation.”

As we have related, Dr Lowenstein was instructed to prepare a report for possible use in mitigation rather than exculpation. Professor Gudjonsson, on the other hand, was instructed by the Crown Prosecution Service to prepare a report specifically in relation to this appeal against conviction. He carried out a more extensive assessment of the appellant’s intellect and concluded:

“1.

The current intellectual assessment … indicates that Mr Henry is functioning in the borderline range of learning disability. His full scale score of 71 falls at the bottom 3% of the general population. This suggests a significant intellectual impairment …

2.

I found no evidence that Mr Henry is currently mentally ill nor is there evidence that he has ever been mentally ill … he seems to have serious emotional problems, including a high level of anxiety, proneness towards agitation, self-defeating personality structure, dependence needs and extremely poor self-esteem …

3.

In summary, Mr Henry is a psychologically vulnerable individual, whose intellectual abilities are very limited, in social interactions he undoubtedly tried to cover up his limited abilities and he superficially presents as intellectually brighter than he actually is … It is likely that these problems interfere with his effectively coping with stress and demands placed upon him by others (eg Miss Bailey involving him in arranging a hitman to deal with [Anna].”

We now turn to the authorities. In Turner (1974) 60 Cr App R 80, Lawton LJ said (at p.83):

“An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.”

This approach has been followed in subsequent cases. A good example of a case in which the issue of expert evidence in relation to intent was considered is Masih [1986] Crim LR 395 (Court of Appeal, Criminal Division, 27 January 1986) in which Lord Lane LCJ said:

“Generally speaking, if a defendant is mentally defective, or otherwise comes in the last class, ‘69 and below mental defective’, then in so far as that defectiveness is relevant – relevant that is to the particular case – it may be that expert evidence should be admitted about it. That is in order to enlighten the jury upon a matter which is abnormal, and therefore ex hypothesi, presumably, outside their own experience. If it is admitted it should be confined to the assessment of the defendant’s Intelligence Quotient, and to an explanation of any relevant abnormal characteristics which such an assessment involves … Where the defendant however is within the scale of normality, albeit, as this man was, at the lower end of that scale, expert evidence, in our judgment, is not as a rule, necessary and should be excluded.”

The IQ of the appellant in that case was assessed at 72, virtually the same as that of the appellant in the present case. The cut-off point of 69 has sometimes been criticised as arbitrary but it has psychological significance and, as the late Professor J C Smith said in his commentary in the Criminal Law Review, it does have the advantage of being “a clean rule”, even if “a rather stringent one”.

The current edition of Archbold (2005 edition, para 17-99) states that

“… it is possible to discern a relaxation of the attitude of the Court of Appeal in the last 25 years.”

The case cited as authority for this statement is Toner (1991) 93 Cr App R 382. However, there the issue was the possible effect of hypoglycaemia on the formation of an intention. Russell LJ said (at p.387):

“… we do not know what, if any, effect mild hypoglycaemia can have upon a man’s ability to form an intent, and without that expert evidence the jury were deprived of assistance in a field where their ordinary experience did not enable them to judge for themselves.”

In other words, unlike borderline intellectual impairment, in relation to which Masih decided that the jury can judge for itself, hypoglycaemia is a medical matter outside the ordinary experience of the jury. We see Masih and Toner as cases on different sides of an identified line and wholly consistent with each other.

The one area in which a different approach is clearly discernible is that of the reliability of confession evidence. There one can see an increased willingness to admit expert evidence. See, for example, Silcot and others (The Times, 9 December 1991) in relation to the appellant Raghip. However, in Coles [1995] 1 Cr App R 157, Hobhouse LJ observed (at p.168F) that the Court in Silcot had expressly drawn a distinction between expert evidence going to the reliability of a confession and expert evidence going to mens rea. In Coles the disputed expert evidence was that of a psychologist on the capacity of the appellant to foresee the risks involved in his actions. The Court held that it had been rightly excluded and that (ibid)

“unless some factor of the mental health or psychiatric state of the defendant is raised, such evidence is not admissible.”

Where does all this lead? In our judgment, the evidence of Dr Lowenstein and Professor Gudjonsson is no more admissible on the issue of intention in the present case than the disputed evidence was in Masih and Coles. This is not a case of mental illness nor is it a case in which the IQ of the appellant is below that considered by the Lord Chief Justice to be the threshold for admissibility in Masih. Whilst it is true that persons with an IQ as low as that of the appellant form a small part of the population at large, sadly they form a somewhat larger part of those charged with criminal offences. An intention that someone should be killed is a visceral matter of no great complexity. In our judgment, it is not a matter which, on the authorities, lends itself to expert evidence in relation to a person such as this appellant. Moreover, it is not without significance that, in any event, the reports of Dr Lowenstein and Professor Gudjonsson do not opine that the intellectual impairment of the appellant acted or may have acted as a contra-indication of the specific intention. Indeed, to the extent that they portray the appellant as easily led and ineffective in coping with stress and demands placed upon him by someone such as Donna Bailey, their views are entirely consistent with the prosecution case.

For all these reasons, we are satisfied that the convictions of the appellant are not unsafe by reason of the reports of Dr Lowenstein and Professor Gudjonsson which do not contain admissible evidence on the issue of intention. Nor, in our judgment, are they admissible as supporting the credibility of the appellant’s account of a lack of the requisite intention. Outside the special area of confessions to which we have referred, it is not generally permissible for a defendant to adduce expert evidence on the credibility of his defence. It is stated in the current edition of Archbold (at para 4-326)

“Nor, save in exceptional circumstances (e.g. Lowery v R [1974] AC 85, PC), can psychiatric evidence be admitted to prove the probability of the accused’s veracity.”

We agree. Lowery is heavily relied upon by Mr Carey in the present case. However, it was considered in Turner and subsequent cases on these issues (but not in other respects: see Randall [2004] 1 Cr App R 26, [2003] UKHL 69) to be exceptional and fact-specific. Alternatively, it has been viewed as distinguishable in law: see Phipson on Evidence, 15^th edn, para 37-14 and Cross & Tapper on Evidence, 9^th edn, p.517.

We record that the written submissions on behalf of the appellant included an alternative argument to the effect that the reports of the psychologists would have made it possible to seek to exclude the evidence of the meeting with Robinson and George by reference to section 78 of the Police and Criminal Evidence Act 1984, on the basis that the tape recording was analogous to an unreliable confession. We are wholly unpersuaded by this submission. Indeed, no real reliance was placed on it in oral argument.

It follows from what we have said that, notwithstanding the succinct and elegant submissions of Mr Carey, the convictions of the appellant are not unsafe and his appeal is therefore dismissed.