Karimi, R v

THE VICE PRESIDENT: Yesterday we allowed the appellant's appeal, quashed his conviction and gave directions for a retrial. We now give reasons. Each member of the Court has contributed to this judgment.

The appellant was convicted of murder on 29th July 1997, following a trial before Blofeld J at St Albans Crown Court. He was sentenced to life imprisonment. On 10th November 1997, the Single Judge refused leave to appeal and, on 1st May 1998, an application for an extension of time within which to renew that application was refused by another Single Judge. He appeals against conviction on a reference by the Criminal Cases Review Commission made on 20th June 2003, under section 9 of the Criminal Appeal Act 1995. The reference was made partly on the basis that there is new evidence contained in post-trial psychiatric reports, obtained by the Commission from Dr Mezey and Dr Grounds, relating to the appellant's special characteristics relevant to a defence of provocation. These doctors advance a diagnosis of enduring personality change after catastrophic experience (which we shall refer to as 'EPCC') and which Dr Grounds concluded did not appear to have been considered at the time of trial. The Commission observed that the absence of such a diagnosis at trial "appears to have reflected the understanding of psychiatrists as a whole at the time of trial". It is unfortunate that the Commission made no enquiry of either Dr Joseph or Dr Nayani, who gave evidence at the trial, as to whether they had considered EPCC. Had that enquiry been made, Dr Joseph could, and no doubt would, have told the Commission that it was considered. Dr Nayani could, and would, have explained why such a diagnosis would, in his view, have been difficult to substantiate. We shall return later to this aspect when dealing with the second ground of appeal.

The first ground, also contemplated by the Commission, is that the judge's summing-up was inadequate in the light of the law as now stated in Morgan Smith [2001] 1 AC 146.

The facts were that the appellant joined the Communist Freedom Fighting Movement in Kurdistan in 1984. He married Mehri Rezai, a member of the same movement, 2 years later and they subsequently had two children.

In 1990, having been injured while fighting in Kurdistan, the appellant moved to Sweden. His wife joined him there a year later. Their relationship began to deteriorate. The appellant returned to Kurdistan in about 1992 to fight for a short period. His wife came to England in April 1994 and the appellant joined her in October of that year. The relationship did not improve. In February 1996, the appellant moved out of the family home and took a room in a YMCA hostel. He enrolled on a full-time course to learn English and became friendly with a man called Sirvan Kabadi, who became the deceased. He too had been a freedom fighter in Kurdistan.

The appellant's wife met Kabadi in August 1996 through the appellant. They became lovers in the autumn of 1996. On 4th December 1996, his wife told the appellant that their relationship was over and he left the house in an emotional state. She was concerned about his welfare and telephoned the YMCA, fearing that he might commit suicide.

On 6th December, Mehri spoke to the deceased, who told her not to come round, as had been prearranged, at 4.15 that afternoon because the appellant was coming to help him fill in application forms. In consequence, Mehri arranged to see the deceased later.

Earlier during that day, the appellant and the deceased had been seen to be getting on well without any animosity between them. But, at 3.15 pm, as shown by the security video on the deceased's block of flats, the appellant entered that block. Sixty-five minutes later he left, having killed the deceased with a knife in a frenzied attack from behind. There were numerous stab wounds; the most severe injury was the cutting of the deceased's throat.

When questioned by police the following day, the appellant immediately admitted the killing and helped in the recovery of the knife. He was arrested. In his possession was a Stanley knife, which he said he had just bought to kill himself.

The appellant's account of the killing to his wife was in part given to her at a meeting immediately prior to his arrest and in part in telephone conversations with her (covertly taped by the police) from the hospital where he was detained. When he was interviewed by the police, he made no comment.

It was the prosecution case that the appellant killed the deceased with the intention to kill or cause grievous bodily harm. The defence case was that the deceased had come at the appellant with a knife and sworn a particularly insulting phrase 'Besharef', meaning "You have no honour". The appellant claimed to have disarmed the deceased and then, using that knife, killed him. The defence was that his responsibility was diminished because of post-traumatic stress disorder and provocation, and self-defence. The significant issues for the jury were whether the appellant had been provoked and/or whether he was suffering from diminished responsibility.

In view of the course which we have indicated we are taking, namely allowing the appeal and ordering a retrial, it is neither necessary nor desirable that we rehearse the evidence which was before the jury, save to the extent necessary in relation to the evidence given by the appellant and the two psychiatrists called at the trial, in order to explain our refusal to receive fresh evidence from the two new psychiatrists.

Dr Joseph, a consultant forensic psychiatrist, gave evidence for the prosecution that, in his opinion, the appellant was not suffering from PTSD. Dr Joseph relied heavily on an entry in the medical foundation records of 5th October which said:

The appellant gave evidence, to part of which we shall return later.

A number of witnesses were called on his behalf, including, as we have said, Dr Nayani. He too was a consultant forensic psychiatrist, who referred to the appellant having been the victim of a chemical warfare attack in 1988 and then remaining in a coma for 48 hours. As he recovered, the appellant thought he was dead. He had no sight for 3 months and believed himself permanently blinded. Dr Nayani noted that, in the Medical Foundation notes in 1995, the appellant was recorded as suffering from social, emotional, physical and psychological problems and there was a mention of nightmares and mental problems. It did not surprise Dr Nayani that neither the general practitioner nor the Medical Foundation personnel had made a diagnosis of PTSD, as the general practitioner was not trained in psychiatric medicine and the Foundation staff were not doctors. Dr Nayani was satisfied that the appellant was suffering from PTSD, a disease caused by an abnormality of the mind which had substantially diminished the appellant's mental responsibility at the time of the killing.

We turn to the grounds of appeal and deal, first, with the second ground, which invited us to receive fresh evidence from Dr Mezey and Dr Grounds, who are both highly distinguished psychiatrists. Their views are expressed in a series of reports and letters obtained by the Commission between August 2000 and September 2004.

In deciding whether to receive this evidence under section 23 of the Criminal Appeal Act 1968, as amended, we had regard to the matters identified in section 23(2), in particular (b) "whether it may afford any ground for allowing the appeal" and (d) "whether there is a reasonable explanation for the failure to adduce the evidence at trial".

It was apparent, in our judgment, that the proffered opinions provide a marked shift, unsupported by any significant new information, from the way in which the defence was presented at trial. It is common ground that the principal focus of the psychiatric evidence at trial was diminished responsibility. This is unsurprising because there was much evidence to suggest that the killing was premeditated and vengeful and, as will appear, the appellant's own account afforded an insubstantial platform for provocation. Privilege has not been waived so we have no knowledge of what passed between the appellant and his legal advisers. But, although the burden of proof in relation to diminished responsibility was on the defence, there was, as it seems to us, clearly tactically, much to be said for putting diminished responsibility in the forefront of the defence, in reliance on Dr Nayani, who strongly supported it, rather than relying on provocation, which would depend much more on the account of the appellant, who proved to be, as may well have been anticipated by his advisers, an unreliable historian.

Diminished responsibility was advanced on the basis of Dr Nayani's opinion that the appellant had suffered from PTSD since 1990 due to fighting, sustaining injuries and helping the injured in Kurdistan. This diagnosis was based on the appellant having flashbacks, two of which were specifically identified. PTSD was an abnormality of mind which, Dr Nayani said, substantially impaired responsibility at the time of the killing. For the Crown, Dr Joseph found little, if any, evidence of abnormality of mind at that time. In the Kurdistan war the appellant had suffered life-threatening, catastrophic trauma, but many people did not develop PTSD from such trauma and, in the appellant's case, such a condition was diagnosed by neither the general practitioner nor the Medical Foundation. PTSD, said Dr Joseph, is extremely disabling and, if it is to amount to an abnormality of mind, it must severely affect the person's life. There was, he said, no evidence that the appellant was so affected.

In relation to provocation, it is to be noted that the appellant's evidence as to the immediate circumstances of the killing was set out in the summing-up in the following terms:

Bearing in mind the appellant's account of the events, to which we shall also return a little later, the crucial question which arose before us was whether the evidence now proffered from Dr Mezey and Dr Grounds was capable of rendering the jury's verdict unsafe, ie might the verdict have been different in the light of their opinions?

Dr Mezey, in her several reports from August 2000, said that, although the appellant had some symptoms of PTSD, they were insufficient to found such a diagnosis or to constitute an abnormality of mind for the purposes of diminished responsibility. EPCC should have been considered. In July 2001 she agreed with Dr Grounds' diagnosis of EPCC and said it was highly relevant to provocation.

Dr Grounds agreed that there is no sufficient basis for diagnosing PTSD. EPCC is the appropriate diagnosis but it is relatively mild, not causing a high degree of disability. The appellant was able to work, study and show intimacy, warmth and affection to his family. The appellant's personality change was not such as to establish diminished responsibility, because it was not sufficiently substantial nor linked to the killing. As to provocation, the appellant was more withdrawn, intolerant and irritable and, because of his childhood experiences, deeply sensitive to accusation of dishonour. These factors should have been added to flashbacks, nightmares, disturbance of mood and depression amounting to special circumstances exacerbating both the impact of provocation on the appellant and his response to it. It is to be noted that Dr Nayani, in his evidence, comprehensively described the appellant as having flashbacks, nightmares, disturbance of personality and mood and behaviour; and PTSD was associated with low mood and clinical depression, associated with changes of personality, irritability, sensitivity, a tendency to loss of temper, volatility and changes of behaviour. He also referred to a weakening of mental faculties and emotional control.

The question asked by the jury was: "If he was provoked but acted unreasonably, is this murder?" In response, the judge repeated much of his earlier direction, dealing with the findings of fact that they must make and the evidence that could amount to provocation. Then he posed the first question, whether what they found to be said or done or known about had caused 'this particular defendant' suddenly and temporarily to lose his self-control and do as he did. If they found that it did or may have done, they had to ask the second question:

Mr Bentley submitted that those directions were wrong, or at least inadequate, in the light of the present law of provocation. He makes two separate complaints. First, in respect of the first limb of the provocation direction, relating to whether the defendant was in fact provoked to lose his self-control, the judge did not direct the jury to take account of any evidence that might have affected the gravity of the provocation in relation to this particular man; in other words, he did not tell them to take account of evidence that might make it more likely that the provocation in question would have caused this particular defendant to lose his self-control. Mr Laidlaw, for the Crown, did not dispute this. But, in our view, it is not necessary for a judge to make any specific reference to such evidence at the stage of the summing-up where he is giving directions of law. We note that the recent specimen direction suggested by the Judicial Studies Board and approved by this Court in Rowland does not require the judge to identify such evidence when giving such directions.

There was in this case evidence about the appellant that was relevant to the likelihood of losing his self-control when faced with the alleged provocation. Dr Nayani had given evidence that the appellant was suffering from post traumatic stress disorder, a condition which, he said, can be associated with low mood and clinical depression. He also said that it could be associated with changes of personality, particularly irritability, sensitivity, a tendency to loss of temper, volatility and changes of behaviour. He said that this condition could lead to weakened emotional self-control. He reported that the appellant was "frequently short-tempered and irritable". Yet, when the judge turned to remind the jury of the medical evidence, he said:

Mr Bentley's second point was that, in directing the jury on the second limb of provocation, the judge had wrongly limited the evidence relating to the appellant's characteristics to the general effects of his background and experiences as a freedom fighter in Kurdistan. Since Morgan Smith and the subsequent authorities which we have identified, it has become the practice to give directions of law that do not require the jury to undertake the difficult task of imagining a hypothetical reasonable man, with the characteristics of the defendant, and asking whether that person would have responded to the provocation in the same way as the defendant had responded, namely by losing his self-control. Instead, under the Judicial Studies Board specimen direction, the jury is directed to make a judgment as to whether the defendant's loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. They, as representatives of society, are to decide upon the appropriate standards of behaviour and what degree of control society could reasonably have expected from the defendant. In making that judgment, the jury is to take into account any evidence of the defendant's characteristics that is relevant to that issue. Thus, not only is the jury's task under the second limb explained to them in more readily comprehensible language, but they will be told in clear terms that they can and should take into account all the evidence relating to the defendant, his experiences, his character and mental state.

Although Mr Bentley could make no complaint about the words used by the judge in directing the jury on their task, he submitted that, at this stage, the judge should have directed the jury to take all the psychiatric evidence into account in relation to provocation. He did not. As we have said, he told them that that evidence was relevant to diminished responsibility. But, submitted Mr Bentley, all the evidence relating to post traumatic stress disorder was relevant to provocation as well as to diminished responsibility. Although the jury might have rejected the defence of diminished responsibility, it could not be said that they had rejected Dr Nayani's evidence in its entirety. They might have found that the appellant was suffering from PTSD, but not necessarily so as to prove diminished responsibility. There was some evidence from Dr Nayani, albeit not a great deal, relating specifically to the relevance of the appellant's mental state to the issue of provocation. Dr Joseph had said that he could not say whether the appellant had any characteristics that were relevant to the second limb of the provocation test. He was there using the word 'characteristics' in the limited sense in which it was used before Morgan Smith. Mr Bentley submitted that Dr Joseph's evidence and that of Dr Nayani might well have been differently expressed if they had approached the matter in the light of Morgan Smith.

Mr Laidlaw accepted that, in the light of Morgan Smith, the judge's direction on the second limb was not adequate. However, he sought to persuade us that the evidence in the case as a whole was so overwhelming that, despite the misdirection, the conviction was still safe. He argued that the case was simple. The appellant killed the deceased shortly after he had discovered that his wife and the deceased were lovers and that she wished to live with the deceased. He was fearful that he was would lose his children, whom he dearly loved. He had a clear motive for killing the deceased. In contrast, the deceased had no motive to kill, harm or provoke the appellant. The deceased had shown no malice towards the appellant. There was evidence that the appellant had lied to the jury in an attempt to conceal his motive for wishing the deceased to be dead. There was a strong case for murder and Mr Laidlaw questioned the relevance of the psychiatric evidence to the question of the appellant's loss of self-control.

We accept that, applying the law as stated in Morgan Smith to this case, there was a misdirection in respect of the second limb of provocation. No complaint can be made that the judge invited the jury to consider how a hypothetical reasonable man, with the defendant's characteristics, would have responded to the provocation. However, the fact that the judge limited the relevant characteristics to the appellant's background in Kurdistan amounted, in the light of the current law, to a material misdirection. In our view, for the reasons we have already given, there was also a material omission from the judge's summing-up in relation to the first limb.

What then is the impact of these defects on the safety of the conviction? If the jury rejected the defendant's account, then plainly the defects were of no effect. If, as the prosecution maintained, this was a deliberate killing arising from discovery of his wife's affair, there could be no basis for impugning the safety of the conviction. Provocation could only arise if the jury concluded that the appellant's account might be true.

But the misdirection in relation to the second limb clearly does affect the safety of the conviction. The psychiatric evidence directed to the defence of diminished responsibility, if accepted, established that the defendant was suffering social, emotional and psychological problems resulting in irritability, sensitivity, a tendency to loss of temper and volatility. When directing the jury on the issue of whether a reasonable and sober person of the defendant's age and sex might have behaved as the defendant did, the judge did not remind them of the psychiatric evidence to that effect. He only drew to their attention the evidence that the defendant was a Kurdish Freedom Fighter with a background of trauma in Kurdistan.

The failure of the judge to remind the jury of this evidence in the context of provocation is given additional importance in view of the question asked by the jury. In directing the jury further, the judge did not relate to the defendant's background as a guerilla fighter the psychiatric evidence about the effect of those expenses upon the defendant's personality, his vulnerability to provocation and his weakened emotional self-control.

Accordingly, this Court cannot be confident that, had they received the direction which the law now requires to be given, the jury would necessarily have convicted of murder. They might. But it is possible that they might have convicted of manslaughter by reason of provocation. Accordingly, the conviction cannot be regarded as safe.

It was for these reasons that we allowed the appeal and quashed the conviction. We ordered a retrial because the interests of justice so required. It would not have been appropriate for this Court to substitute a verdict of manslaughter by reason of provocation. Whether such a verdict is appropriate is a matter for determination by a jury.

MR BENTLEY: First of all, Miss Mannion appears on behalf of the Respondent. May I raise one matter under the Contempt of Court Act. My Lord, clearly there will be a retrial. I would invite the Court consider one of two courses, either ordering no reporting of this decision or the reasons until the conclusion of what will now be the Crown Court proceedings, the retrial, or alternatively--

THE VICE PRESIDENT: Would that be under section 4.

MR BENTLEY: Section 4(2) I believe it would be. Or alternatively limiting any report to the fact of the quashing of the conviction and the ordering of a retrial certainly not including, at this stage, any reporting of your Lordship's reasons.

THE VICE PRESIDENT: I think the public are clearly entitled to know the conviction has been quashed and a retrial has been ordered. Speaking entirely for myself I would not have thought it desirable at this stage that anything more than that should be published. (Pause) I speak for the Court.

So, for the avoidance of doubt, we make a direction under section 4(2) of the Contempt of Court Act postponing any report of today's judgment save a report that the appellant's conviction has been quashed and a retrial ordered.