Diamond, R v

As a result of severe temper tantrums when he was a child, he was seen by the family GP in Scotland. After his return to Ireland, as a result of an incident, he was referred by a GP to a child psychiatrist who saw him regularly between 1982 and 1985 and diagnosed him as suffering from a marked conduct disorder with aggressive behaviour as the main feature. At school there were behaviour problems and he was admitted for further assessment to St Stephen’s Hospital in the summer of 1984. Although he was discharged from psychiatric care, his behaviour at school became more violent and disruptive; he became involved in burglary, stealing and drinking; he started writing about wanting to kill his mother. His mother had stated that he told her that he had heard the devil talking to him. He was asked to leave school when he was 12 and it was decided to send him to Blackpool to live with his father and step mother.

By the age of 14 his behaviour had again deteriorated. He was asked to leave school and ran away back to Ireland to his grandparents. There he robbed a post office and people in the street at knifepoint. He was cautioned and returned to Blackpool.

In June 1993 he attacked his stepmother and then set off with his father’s air pistol to see his mother whom he threatened to kill. He was charged with affray; he was given a 12 month conditional discharge and placed in Fylde Community Home.

In 1993 when at the Fylde Community Home, he attacked another resident who had bullied him, inflicting with a knife wounds to his head which required about 100 stitches. He was charged with wounding with intent.

He was assessed in 1993 at the Special Regional Forensic Adolescent Psychiatry Unit at Prestwich Hospital by Dr Shortall as having a long history of behavioural difficulties with an escalation of levels of violence. He was not suffering from any psychiatric illness.

He was in due course convicted and sentenced to 2½ years in a Young Offenders Institution for the offence of wounding. The course of his remand and sentence for that offence was very troubled; attempts to keep him in children’s homes and a secure care facility failed because of threats and assaults, including assaults with knives and screwdrivers, he made against others. He was held on remand at Lancaster Farms and Deerbolt Young Offenders Institutions. The records set out a catalogue of violence and threats; there were 30 adjudications. He was released in May 1995.

He was then at liberty for a short period of just over 2 months characterised by further violence before his next arrest in July 2005 for stabbing a fellow resident at a hostel with a knife. He was charged with wounding with intent and was remanded to Lancaster Farms; during that period of remand there was again violent and abusive behaviour and unprovoked assaults. At his trial on the charge of wounding with intent he advanced the defence of self defence; he was acquitted on 22 February 1996 after 8 months in custody.

His period at liberty between February and June 1996 was spent at a hotel where there were threatening and abusive incidents; he saw his GP three times and was due to see a physiatrist, but before he did so he was arrested again.

On 21 June 1996 the appellant was arrested and charged with attempted rape, indecent assault, false imprisonment, theft, and intimidating a witness. Whilst on remand (though he was on bail for a short period), he threatened to kill other prisoners and made a serious assault on one; the officers considered he was like a time bomb. He was seen by Dr Jennifer Shaw, a consultant forensic psychiatrist, several times; in a report prepared for the court dated 14 October 1996, she recorded that he told her he thought he was possessed by the devil, that he had fantasised about killing someone and cutting them up and that he thought he would kill someone one day. She concluded that he had no signs of depression or psychosis, but had a long standing personality disorder, which would amount to a diagnosis of psychopathic disorder within the meaning of the Mental Health Act; she had contacted Ashworth who were prepared to consider an assessment if he was convicted. In late October 1996 the appellant was also acquitted of these offences, but he has since admitted whilst at Ashworth, that he committed these offences.

He was at liberty for just under 2 months; he returned to Blackpool; each time he went out he carried a knife.

On 14 December 1996 he was arrested after stabbing another youth, claiming he had again done so in self defence. The victim required 10 stitches to the head. Whilst on remand he was again violent and abusive. He was assessed again by Dr Shaw; she was extremely concerned at the danger he presented to the public. She discussed with him a referral to Ashworth, but he decided that he would not undergo the referral. In a report dated 20 June 1997 she diagnosed the appellant as having a personality disorder which amounted to a psychopathic disorder within the meaning of the Mental Health Act 1983; she could not recommend a medical disposal as he was not motivated to undergo treatment, but stated that he had significant personality problems and the risk of him offending violently in the future was extremely high. She found no evidence of mental illness. On 7 July 1997 the appellant was sentenced to 18 months imprisonment in a young offenders’ institution.

He was released on 3 October 1997 on licence; immediately prior to his release the police circulated a leaflet to all local officers warning of his dangerousness.

Just under 3 months later on 28/9 December 1997 he committed the killing which is the subject of this appeal. During his period at liberty he sought treatment from his GP for depression and paranoia; there were incidents where he threatened people.

On 9 February 1998 he told Dr Holloway, a consultant forensic psychiatrist, that he believed he had been possessed by the devil since the age of 10 and had been hearing voices for a few years. He was prescribed anti-psychotic drugs. 14 days later he told her more about the devil entering his body. He subsequently refused to see her.

Prior to May 1998 his solicitors had doubts about his mental condition and his fitness to plead; in instructions to counsel for the plea and directions hearing on 21 May 1998 the solicitor’s representative recorded those doubts on the basis that the appellant was refusing to give instructions and claiming to be possessed by the devil.

By the time of the writing of the note for the plea and directions hearing on 21 May 1998 the appellant appeared to the solicitors to be lucid and capable of understanding the nature of the charge against him. Counsel was asked to consider whether enquiries should be made of an independent psychiatrist with a view to assessing the appellant’s mental state.

On 7 May 1998 the clinical director of HMP Manchester had in fact asked for an assessment of his suitability for admission to Ashworth, as he considered that the appellant had a psychopathic disorder with hints of a co-existing mental illness in the form of a delusional disorder.

That assessment was carried out by Dr Coorey, a consultant forensic psychiatrist at Ashworth Hospital, on 5 June 1998. The appellant told him he intended to plead not guilty. After the assessment Dr Coorey contacted the CPS for information to arrange for the appellant’s admission to Ashworth; he recorded that they were not helpful. In a report dated 8 June 1998, Dr Coorey observed:

“In addition to his paranoid ideas, [the appellant] has fantasised for a long time about killing people, more particularly police officers. He has expressed a wish in the past to seek help for his problems and although he retracted later, he expressed a similar wish at our recent interview. Given the long-standing nature of his psychiatric problems and the serious crime that he is charged with, the issue of a psychiatric defence is bound to arise”

On 9 June Dr Coorey wrote to the Court, with a copy to the appellant’s solicitors and to the CPS, enclosing his report of 8 June 1998 and stating that the admissions panel at Ashworth would consider whether a place could be offered on 16 June. After the admissions panel had agreed to provide a place, Dr Coorey submitted a further report to the court dated 16 June 1998 seeking the admission of the appellant under s.35, as a bed was available after 10 July 1998. In it he stated that his opinion was that

“there is reason to suspect that this patient is suffering from mental illness, psychopathic disorder, mental impairment or severe mental impairment within the meaning of the Mental Health Act 1983 and it would be appropriate for the patient’s mental condition to be assessed in greater detail by the staff of a hospital.”

Although we have asked that extensive enquires be made, at this point in time full records are not available. It is clear, however, that the appellant gave instructions to his legal team at this time that he would not go to Ashworth; the CPS also made clear on 8 July 1998 that they opposed admission to Ashworth and declined to supply the prosecution papers to Ashworth.

On enquiry by the court on 16 July 1998 the CPS and defence made it clear that neither wished to apply for a s.35 Order. The court therefore decided that an application for such an order would not be listed and so no order to transfer was made.

On 1 September 1998 the appellant was seen by Dr P R Snowden, a consultant forensic psychiatrist and at the time the Clinical Director of Ashworth, at the request of the appellant’s then solicitors. Dr Snowden gave evidence to us at the hearing of this appeal. In 1998, the appellant denied fantasies of killing and harming people and hearing voices; Dr Snowden was, as he reported on 11 September 1998, unable to identify any symptoms of mental illness, though he noted that Dr Holloway and Dr Coorey had both formed the view there was some evidence of a mental illness. It was unclear to him whether they were true accounts of psychotic symptoms. He concluded that there was no doubt that the appellant was unusual and he probably had personality difficulties which might amount to a personality disorder and he might in addition have a mental illness. He continued:

“The only way for his mental state to be assessed properly is for him to be transferred to a secure hospital environment. During such an assessment, it should become clearer in psychiatric terms, whether he suffers from a mental disorder and to what degree. It should be possible to comment upon abnormality of mind, so that if necessary a defence of diminished responsibility can be properly considered if it proves to be an issue in this case … I therefore strongly support the approach taken by all of the psychiatrists in this case … I am aware that his case was considered by the Ashworth Hospital Admission Panel, who offered a bed when one is available. I understand from those instructing me that this possible transfer has not been pursued. I would strongly urge those who instruct me to reconsider this case. I think that it is essential that [the appellant] is properly assessed. The nature of this case is such that I believe it important that the right decisions are made and it is impossible for this to occur whilst there is still uncertainty about the nature of his mental condition.”

In the light of the reports, the solicitors, leading counsel and junior counsel then representing the appellant advised the appellant that a defence of diminished responsibility was open to him and advised that undergoing a full psychiatric assessment would be in his best interests.

In early December 1998 the appellant, however, again made clear that he refused to countenance this, as it would carry with it an admission that he had been responsible for the death of the victim. He also made it clear that he would not go to Ashworth; he was deeply suspicious of such places and wished to remain in prison, despite being advised that it might be in his best interests to go to Ashworth. He was confident that he would be successful in his defence.

His legal team considered that the appellant was fit to plead and was clear and adamant in his instructions that he did not kill the victim; during the trial he gave firm and lucid instructions. In the light of his refusal to go to Ashworth Hospital, the defence was thereafter conducted on the basis we have set out.

On 3 December 1998 the CPS, who were informed of the position by the defence, asked a consultant forensic psychiatrist to complete a report for the court in accordance with the practice then obtaining (see paragraph 51 below); copies of the psychiatric reports that the CPS had were sent; it was noted that the appellant might refuse to see him. The appellant did refuse.

A the end of December 1998 and prior to the commencement of the trial the Clinical Director of HMP Manchester asked Dr Holloway, in the event of the appellant’s acquittal (as the appellant and others considered that the case against him might not be strong enough to secure a conviction) to put in place as a contingency arrangement for psychiatric treatment which the appellant had by then said he was willing to undertake. He followed this up with a further letter on 13 January 1999 to Dr Shaw; in that letter, he stated:

“Clinically I do not believe at present that [the appellant] suffers from a major mental illness, despite suspicions that he may initially have been suffering from some psychotic symptoms. Currently I would assess him as having a mild depressive disorder. [The appellant’s] personality disorder is well documented.”

As we have stated the appellant gave evidence to the jury on 15 January 1999.

At HMP Manchester a violent incident took place and he sought blades to cut officers up.

He was seen on 23 March 1999 by Dr Coorey at HMP Wakefield; Dr Coorey concluded that he had long standing and severe personality difficulties and there were strong indications that he was suffering from a paranoid psychotic illness, probably of a schizophrenic type. He considered that the appellant had probably been able to exert sufficient control over his psychotic experiences whilst awaiting trial, but since the conviction there had been a rapid decline. He recommended admission to Ashworth for further assessment and treatment of his personality problems, as he believed that the appellant was motivated to seek help. He advised that the appellant be categorised as mentally ill as well as psychopathically disordered.

He had spent the previous 18 months segregated and was considered a very high risk. He was initially hostile and his mental state fluctuated. He maintained his innocence and considered his appeal was being thwarted.

In September 2000 Dr James Collins, a consultant forensic psychiatrist, became the appellant’s responsible medical officer. Dr Collins gave evidence to us.

The appellant was diagnosed as suffering from paranoid schizophrenia. In December 2001, he was started on Clorazil, an anti-psychotic drug. It was the first medication to bring about a significant reduction in his symptoms; the effect was noticeable within 2/3 months.

On 29 October 2005, the appellant was given unescorted parole in the grounds of Ashworth and moved in July 2006 to a low dependency ward.

He challenged the correctness of rulings made by the judge, the failure of the judge to sum up the forensic evidence properly, the adequacy of the disclosure, mistakes by his lawyers and points on the jury. He sought to adduce fresh evidence. Further details were provided in further grounds submitted later in June 2000.

In view of the criticism of his trial lawyers, the Registrar sought the views of the trial lawyers; each of the points was answered by solicitors and counsel in August 2000. In his response, leading counsel observed that the appellant was highly charged and agitated in the period before the trial; he was, however, able to understand the nature of the evidence against him and able to give full instructions, but would not recognise the strength of the case against him and was unrealistic about his prospects of an acquittal. They had spent much time taking detailed instructions on each point.

The single judge refused leave in November 2000. The application was renewed to the full court.

In January 2001 the appellant first told Dr Collins that he had committed the killing. He gave a detailed account of the killing. He told Dr Collins that whilst on remand prior to the trial, he had become aware of the enormity of what he had done, but he had rejected the option of admitting the killing as he still wished to win his case and defeat the police. A few days later he told a nurse he wanted to withdraw this confession. His position on this varied, but he finally withdrew his confession in the summer. His explanation for making the confession was that he thought he would not be able to make much progress in Ashworth until he admitted the killing.

On 21 March 2001 Mr Rees, a solicitor experienced in mental health matters who has represented the appellant since then, saw the appellant. The appellant accepted that when the killing took place, only he and the deceased were present. Mr Rees was satisfied that the appellant was accepting full responsibility for the events that followed and the result; he thought that was sufficient for a defence of diminished responsibility to be advanced and that the appellant was able to give him those instructions. He therefore sought an adjournment of the hearing of the renewed application that was to take place on 27 March 2001; that was granted.

On 18 May 2001 Mr Rees sought leave to appeal on behalf of the appellant on the basis that there was evidence that the appellant was suffering from a major psychiatric illness at all material times and that a verdict of diminished responsibility should be substituted for that of murder. In a letter to the court he stated that he had advised the appellant that there were no grounds of appeal on fact and that the appellant had accepted that advice. Full grounds of appeal were lodged in July 2001 by Mr Rees and by Mr Vaughan of counsel (who has appeared for the appellant at all subsequent hearings). It was contended that the appellant’s psychiatric condition, whilst not making him unfit to plead, was capable of affecting the instructions he gave and influencing his defence. He requested that the matter be adjourned so that the defence team at trial could explain what had happened and further medical evidence could be obtained.

In October 2001, the trial team replied setting out the position we have summarised at paragraphs 10.x) to 10.xii) above. Mr Rees wrote to the court stating that the appeal would be pursued even though the defence had advised the appellant as to diminished responsibility, as although his illness did not render him unfit to plead, it did not enable him to give proper instructions.

On 9 May 2002, the Full Court (Pill LJ, Nelson and Pitchers JJ) adjourned the renewed application so that a psychiatrist could be instructed. Counsel then saw the appellant and obtained instructions that the appellant would see a psychiatrist. Dr Wood was instructed and the court advised of this in August 2002. When Dr Wood went to Ashworth to see the appellant, the appellant refused to see him.

The court was so advised on 9 December 2002; it was informed that the appellant wished to proceed with the appeal on the basis that he did not kill the deceased. Mr Rees withdrew. The appellant wrote to the court stating he wished to renew the application on the original grounds.

On 17 February 2003, the Full Court (Scott Baker LJ, Holland J and Dame Heather Steel) dismissed the renewed application, noting that the appellant had rejected the only issue that the court was prepared to consider – diminished responsibility. Mr Vaughan was present and explained the difficulties of his position.

In June 2005 Mr Rees sent the Commission the psychiatric report prepared by Dr Collins in which he had set out his diagnosis of paranoid schizophrenia.

On 28 November 2005 the Commission enquired whether the appellant accepted that he had killed the deceased and whether he was requesting the Commission to investigate whether the defence of diminished responsibility could or should have been advanced at trial.

Mr Rees responded on his behalf on 23 January 2006 to state that the appellant did not accept that he had committed an act that resulted in the death of the deceased; the appellant considered that the evidence against him was significantly flawed. The Commission should nonetheless consider whether the defence of diminished responsibility could have been run at trial; there was nothing legally impossible in running a dual defence: “I did not kill the victim, but if you find that I did, then I was suffering from diminished responsibility”.

On 1 March 2006 the Commission wrote to Mr Rees setting out the history of the matter. It pointed out the position was exactly the same position as existed at the Court of Appeal hearings when the appellant declined to accept responsibility for the killing. There was no new psychiatric evidence. The Commission suggested that the first question was whether the appellant had the capacity to instruct Mr Rees; a psychiatric report on this issue was needed. The Commission would also need a psychiatric report on the impact of his mental illness on his responsibility for the death of the deceased, but no such report could be prepared unless the appellant was prepared to admit being party to the killing. As things stood the Commission had no information before it which justified a reference of the case to the Court of Appeal. The Commission requested a response in 14 days; it would then either continue the enquiry or issue a provisional statement of reasons. There was no reply.

On 31 March 2006, the Commission therefore wrote advising the appellant of its provisional view that his conviction “should not be referred for a fresh appeal”. It set out in detail the reasons for rejecting the contention that the conviction should be referred on the basis of evidence that the appellant did not kill the deceased. Its reasons for declining to refer the diminished responsibility defence were essentially those set out in its letter of 1 March 2006 to Mr Rees. It asked for any further submissions by 28 April 2006.

The appellant had indicated to him

“that he was at the scene at the material time. Indeed [the appellant] has also indicated to certain medical professionals that he was not only at the scene, but also involved in events. This clearly precludes a defence based upon “it was not me, I was not there” (a criminal defence) but does not prevent a defence “it was not me, it was my invisible friend” (a psychiatric defence). Indeed [the appellant’s] insistence that he did not commit the act not only makes running a psychiatric defence very difficult, but also makes treatment by the psychiatrists difficult, if not impossible, and effectively prevents him from ever being released

What has now changed is that following lengthy discussion with those treating him, [the appellant] now accepts that he was there at the time of the offence and was the only person there (apart form the victim) and that he should instruct me to run a psychiatric defence on that basis”

Mr Rees wrote to the appellant setting out what he had told the Commission in the second part of the letter.

It contained a detailed account of the appellant’s mental history.

It set out the account of the day of the killing given to Dr Collins by the appellant in two long interviews in June and July 2006. The appellant had stated that he had heard voices during the day telling him to kill; he had met the deceased and allowed him to stay the night in his room. He woke up in the night and the voices told him to kill; he had been unable to resist them. He had taken a kitchen devil knife and stabbed the deceased in the neck and nearly decapitated him in one go. The voices stopped. He realised he had to get rid of the body and dismembered it in the bath; he cleaned the carpet. He put the body in a large bag and wandered round the streets to find somewhere to dispose of it. He threw the knife and head into the sea.

The appellant also gave an account of why he had pleaded not guilty; he said he did not want admission to Ashworth; one of the reasons for this was that he had been told by his lawyers that he had a good chance of getting off. He had also said that he was full of anger against the police and thought he could beat them; no psychiatrist in the world could have talked him out of pleading not guilty

Dr Collins concluded that at the time of the offence the appellant was suffering from paranoid schizophrenia and had been suffering from it for some years before, quite possibly since he was 11. This had impaired his responsibility for the killing of the deceased; his illness had the further consequence that he lacked the insight to give instructions to plead diminished responsibility.

If at the time of plea there was medical evidence that the defendant was fit to plead, and if he was fully advised as to the position in relation to diminished responsibility and fully capable of taking the decision as to how the case was to be put, and decided not to advance a defence of diminished responsibility, then even if the defendant was not a “normal person”, it was not permissible for a defendant to change his mind after the verdict: R v Straw [1995] 1 All ER 187.

If there was medical evidence prior to the trial of a mental illness, but the defendant did not permit the defence team to advance a defence based on that and insisted on appeal that the same course be taken, then it would not be in the interests of justice to permit an application to adduce evidence of that mental illness: R v Kooken (1981) 74 Crim App R 30.

It is essential to consider the medical evidence on two issues (1) a defence of diminished responsibility succeeding and (2) the mental illness itself being a material cause of the decision not to run the defence of diminished responsibility (or to use Kennedy LJ’s phrase in Shah the choice was “forced on him”). In the first hearing in R v Borthwick [1997] EWCA Crim 2656 ([1998] Crim LR 274), the need for overwhelming or clear evidence of both of these was stressed, if the evidence was to be admitted. In the subsequent hearing, there was undisputed evidence which was unknown at trial; that was also 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 defend the case on that basis.

It is very important to have regard to whether the evidence is contemporaneous or ex post facto. If there was strong evidence of mental illness which might have impaired the responsibility for the killing available after the trial but none available at the time of the trial, the court would view with scepticism any retrospective evidence of that kind. But where there was evidence contemporaneous to the trial which was not pursued and about which the defendant was not advised, then the court might admit fresh evidence: R v Ahluwalia (1993) 96 Cr App R 133. This and the decision in Neaven are cases of this kind.

Where there is a dispute over the medical evidence as to whether the defendant was suffering from an abnormality of mind that might have impaired the responsibility for the killing and his ability to give instructions, then the difficulties that the appellant will face have been made clear. In R v Sharp [2003] EWCA Crim 3870, Lord Justice Buxton said at paragraph 32

“It is only going to be in very exceptional cases that a different defence can be adduced. Thirdly, that will normally only be the case, as Schiemann LJ indicates in Weekes, where the original evidence was indeed available at the trial. That is not this case. Fourthly, the criteria that will be looked for before an exceptional case can be accepted are (i) that the availability of the diminished responsibility defence is effectively unchallenged or at least certainly not controversial; and (ii) that there is an explanation in medical terms for any decision by the defendant not to run that diminished responsibility case at the trial.”

The concerns about the appellant’s mental condition expressed prior to the trial were correct.

In the light of all the evidence it was clear that the appellant suffered from paranoid schizophrenia at the time of the offence and during his period on remand and trial.

He was fit to plead within the established test.

He now had capacity to give instructions to his lawyers, as we have set out at paragraph 6.

The appellant had been suffering from schizophrenia for some considerable period before he killed the deceased, probably since the age of 11, as that was when he first spoke of auditory hallucinations. It was evident from Dr Shaw’s report of June 1997 that it could now be seen he had paranoid thoughts; she had been mistaken in her diagnosis. The appellant had attributed the 43 recorded assaults (including those when in custody) which he had committed prior to admission to Ashworth to hallucinations, paranoia and his general sense of anger, particularly against the police. When admitted to Ashworth the assaults had continued.

He accepted that the diagnosis had been based on his subsequent care and examination of the appellant and a study of the records; an assessment at the time should have taken place and his diagnosis had its limitations. He accepted that the appellant had been able to give instructions in respect of the offences in 1995 and 1996 of which he had been acquitted

The schizophrenia had substantially impaired the appellant’s responsibility for the killing. At the time of the trial, the factors that played a significant part in his decision to plead not guilty were – an opportunity to gain a degree of revenge on the police by securing a not guilty verdict, a lack of understanding of his condition (which meant that he acted on his paranoiac ideas) and the self interest in hoping to obtain a not guilty verdict. The mental illness had played, in his judgment, a significant role in the appellant’s decision to plead not guilty; the appellant had not understood what was on offer as he did not know that his condition was treatable.

The appellant also had a personality disorder, but the schizophrenia was the condition that affected him more at the time of the killing; it had trumped the personality disorder.

The appellant had started to respond to treatment after December 2001; he had ceased to be involved in fights. The appellant had said his fantasies had diminished and then disappeared. By August 2006, he had started to gain insight into his feelings.

When in January 2001 the appellant first admitted the killing to him, (see paragraph 14.iv)), the appellant was still ill, as was evidenced by his paranoiac behaviour in 2002. In January 2001 he still had hope his appeal would succeed; his confession had taken away that hope and was ending his fight with the police. The appellant then regretted it, withdrew it and denied he was the killer.

It was only by 2004 that the appellant began to recognise he was mentally ill and the steady improvement continued until 2006. He had not addressed the issue of the killing with the appellant between 2001 and June/July 2006, when they discussed it again and the appellant admitted the killing (as set out in paragraph 18.ii) above). Since then the appellant had maintained his admission of the killing

He was not sure that the appellant had the capacity to give instructions before 2005, but he certainly had that capacity in and after 2005. When the Commission refused his appeal on the facts, he had the capacity to give instructions on which Mr Rees had proceeded (as set out at paragraph 17).

As we have set out at paragraph 10.ix), Dr Snowden had seen the appellant in September 1998. His view at the time was that the appellant was suffering from significant personality difficulties that probably amounted to a personality disorder, but he could not conclude that he was suffering from a mental illness without an assessment. His view that the appellant had personality difficulties was supported by the fact that the appellant had had a childhood conduct disorder which was not uncommon in those who went on to develop a personality disorder. He agreed with the opinion of Dr Shaw set out at paragraph 9.xi) that the appellant had a personality disorder; this amounted to a psychopathic disorder that could reasonably be viewed as an abnormality of the mind. The evidence of the examination in Prestwich in 1993 (see paragraph 9.v)) and the psychiatric history which we have set out supported the view that the appellant had a personality disorder and no mental illness until 1997.

He had considered that during the appellant’s periods on remand for the killing of the deceased, there was evidence of a change in his mental condition and a suspicion of mental illness. Although there was now ample evidence to support a diagnosis of a paranoid schizophrenic illness in addition to the personality disorder, it was unclear when the illness started to develop. Undoubtedly there was a change between the assessment by Dr Shaw in 1997 and the pre-trial assessments. At the time of the killing and thereafter, he had two abnormalities of the mind – the serious and chronic personality disorder and the schizophrenia; it was not now possible to say which was dominant and both must be taken into account when considering what caused his decision to plead not guilty.

If the appellant’s mental illness had been known at the time of the trial, he would have recommended further examination and testing to determine the extent of his illness and personality disorder. It was not safe to rely on the appellant’s account as he might or might not be accurately relaying his mental condition to others.

However, in the absence of that contemporaneous examination and testing, he could not agree that his mental illness was a material cause of the appellant’s decision to plead not guilty or that it did substantially impair his responsibility for the killing. A killing by someone with schizophrenia did not inevitably mean that there was diminished responsibility for a killing by that person. It was possible that if the appellant had been examined, there would have been evidence to establish diminished responsibility, but he could not say it was probable that was so. Furthermore all he could now say was that it was possible the appellant did not have the capacity to give instructions on account of his illness; he might simply have been playing the system and wanted to avoid responsibility if at all possible.

It is always important to make as contemporaneous as possible to the event in question an assessment of the mental state relevant to that event. There are very considerable difficulties 9 to 10 years later in 2008 trying to assess the appellant’s mental state in 1998 and January 1999; there were also considerable difficulties in doing this when Dr Collins first became involved with the appellant in September 2000 and when he wrote his first report in 2004.

We therefore attach much greater weight to the contemporaneous assessments.

In 1993 and 1997 he was not diagnosed as suffering from a mental illness; we cannot accept the conclusion of Dr Collins based on his assessment many years later that the appellant was so suffering and cannot prefer that to the contemporaneous assessment of two experienced consultant psychiatrists.

It is probable that there was a change in the appellant’s condition after remand into custody. Dr Snowden saw him in September 1998 and he had diagnosed a personality disorder with the possibility of a mental illness. He found no symptoms of mental illness, though Dr Coorey and Dr Holloway had found some evidence. There was, however, no contemporaneous evidence of a diagnosis of such an illness. We have set out the view of the medical director of the prison at paragraph 10.xiv).

Although it became clear subsequently that the appellant had schizophrenia at the time of the killing, it is not now, 9 years later, possible to ascertain the role it or his personality disorder played in his decision to plead not guilty.

He was given competent and clear advice in 1998 in the period leading up to the trial that it would be in his own interests to undergo an assessment and to consider the defence of diminished responsibility. However, the probability is that, having obtained acquittals in 1995 and 1996, the self interest in obtaining an acquittal was the dominant motive in his decision to plead not guilty; we are driven to conclude that it was a tactical decision made with sufficient understanding on his part. We cannot at this time on the evidence before us conclude that any lack of insight brought about by his schizophrenia played a material role in his decision.

We do not accept any of the accounts given by the appellant; in the light of the history we have set out and of the differences in his account of the killing and the objective evidence, we could not do so.

We accept the submission made by the Crown that the fact that his decision to plead not guilty was tactical is supported by the history of the appeal between 2000 and 2003 and the course of his application to the Commission, particularly what happened in March and April 2006 when the Commission were persuaded to consider his case on the basis he had killed the deceased. It is in our view very significant that the appellant only finally admitted he was the killer to Dr Collins in June and July 2006, when all other avenues of appeal were at an end and his only hope was to advance the defence of diminished responsibility. As Dr Snowden opined, this might well be linked to his underlying personality disorder and demonstrate the tactical nature of his actions – only admitting to the killing when there was no alternative.

The Mental Capacity Act 2005 which has set a new framework and a new test of capacity for civil purposes and had been in force since April 2007.

The fact that decision on fitness is determined by the judge since the coming into force of s.59 of the Domestic Violence Crime and Victims Act 2004

Lord Bingham of Cornhill’s statement of broad principle in R v Coutts [2006] HL 39 at paragraph 12:

“The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged.”