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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hobson, R. v [1997] EWCA Crim 1317 (23 May 1997) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/1317.html Cite as: [1997] EWCA Crim 1317, [1998] 1 Cr App R 31, (1998) 43 BMLR 181, 43 BMLR 181, [1997] Crim LR 759

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		23rd May 1997

THE VICE PRESIDENT: On 19th October 1992, at Liverpool Crown Court, this appellant, as she now is, because we gave leave to appeal at the outset of the hearing before us, was convicted by the jury, following a trial before Turner J, of murder and sentenced to life imprisonment. Her application for leave to appeal against conviction and for leave to call witnesses was referred to this Court by the Single Judge.

It was common ground that on 27th January 1992 the appellant had stabbed her abusive and alcoholic partner, James McDonald, to death during an argument. The defence was self-defence, though the learned judge, in his summing-up, properly left provocation also for the jury's consideration.

The evidence, so far as it is necessary, for present purposes, to refer to it, was that the appellant had called for an ambulance and told the telephone operator, "We had a row and he got a knife out to me, so I took a knife out to him". The ambulance men, when they arrived, were told by the appellant that she and the deceased had had a fight. When the police arrived she confirmed that that was so, and added, "But I stuck up for myself for once". After she had been cautioned she said that she had had a knife and stabbed the deceased, and the circumstances in which that occurred were, she said, that he had tried to force her to have sex, which she did not want, and she had fought back and, in so doing, killed the deceased.

The blade of a serrated knife was found in a waste paper basket in the sitting room. There were blood stains in that room, in the dining room and kitchen, and on the stairs where the deceased was found.

When she was taken to the police station, the appellant first refused to be examined by a doctor, but she consented to such an examination the following day, when there were apparent, on her arms and legs, a considerable number of bruises consistent with a scuffle. She told the doctor that she had been raped vaginally and anally by the deceased. No injury to her private parts was found. She gave a lengthy account to the doctor of what had happened during the course of the evening.

The pathologist gave evidence of six serious wounds to the deceased, some being consistent with the use of a serrated knife, the blade of which, as we have said, was found in the wastepaper basket, and others being consistent with having been caused by a second tapered knife. The depth of the wounds varied up to five inches. The fatal injury had been inflicted by a tapered knife penetrating to a depth of some four inches.

The deceased's blood alcohol level was 220 milligrammes per hundred millilitres. There was evidence that the deceased had a drink problem. The appellant, in interview by the police, said that she had fetched the knife from the kitchen because she was scared that the deceased might rape her again. She had only intended to keep him off, and had not intended to kill him. It was elicited, in questions of the police officers during the trial, that she, the appellant, had called them on some 30 previous occasions, reporting to them the deceased's violence towards her, and she had made formal complaints on four occasions. She said that she could remember little of the detail of the incident which had culminated in the deceased's death. She agreed that she had used the broken serrated knife, but denied having used a second knife.

In evidence before the jury, the appellant described the suffering which she had endured at the hands of the deceased over some 18 months prior to the offence, and she gave evidence in accordance with the interview which had earlier taken place with the police, the substance of which we have already sufficiently identified.

On behalf of the appellant today, Miss Kennedy QC invited the Court to admit, having regard to the provisions of section 23 of the Criminal Appeal Act 1968, as amended, the evidence of two psychiatrists, Dr Mezey and Dr Ghosh, as set out in reports which they have provided since the trial. That of Dr Mezey is a report dated 3rd July 1996, that of Dr Ghosh of 14th July 1994, and there are also letters from those two doctors, both dated 20th May 1997.

The substance of the submission made on the appellant's behalf is this. It was not until 1994 that Battered Womens' Syndrome was included in the standard British classification of mental diseases, although, prior to that date, it had been included in the American classification. In consequence, at the time of the appellant's trial in 1992 it would not have been a condition which would have been readily considered by practising British psychiatrists, save the relatively small number who had a particular experience and expertise in relation to that condition. Battered Womens' Syndrome is a variant of post-traumatic stress disorder.

The essence of the case now sought to be made on behalf of the appellant, on the basis of the reports of Dr Mezey and Dr Ghosh, is that, at the time of the killing, the history of this appellant, and all the attendant circumstances, gave rise to the existence of Battered Women's Syndrome, which was capable of giving rise to, and did, in her case, give rise to, diminished responsibility for the killing in accordance with the provisions of section 2 of the Homicide Act. Furthermore, it is said that that condition, if it existed at the relevant time, was material to the defendant's characteristics when they fell to be considered in relation to the defence of provocation under section 3 of of the Act. Therefore the application was made to this Court that the evidence of Dr Mezey and Dr Ghosh should be received.

On behalf of the Crown, Mr Riordon QC, who appeared for the prosecution at the trial, accepts that, if it is the case that Battered Womens' Syndrome was not recognised in the official classification until 1994, then whether or not the appellant suffered from it at the time of the killing, and whether it amounted to diminished responsibility, could not have properly been considered by the jury.

The evidence upon which Mr Riordon relies is the report of Dr Boyd dated 13th February 1997. It is to be noted that he, at the time of trial, had given reports to the defence in relation to the defendant's mental condition, which excluded the possibility of diminished responsibility as a defence. His view is now that, although a diagnosis of Battered Womens' Syndrome could be made in this case, in the light of what the appellant told him at the time, the symptoms which she had were not of a degree which would give rise to an abnormality of mind such as to sustain a defence of diminished responsibility.

Mr Riordon resisted the admission by this Court of the evidence of Dr Mezey and Dr Ghosh on the basis that, although it satisfied the condition as to capacity for belief and might afford a ground for allowing the appeal, and would have been admissible at the trial, it fell foul of the other provision of section 23(2)(d) of the Criminal Appeal Act in that no reasonable explanation for the failure to adduce the evidence at the original trial had been advanced before this Court. He made that submission on the basis that the reports from the two doctors relied upon by the appellant are wholly retrospective, obtained long after the trial, and depend upon the apparent unquestioned acceptance of the account of events now given to those two doctors by the appellant. Mr Riordon specifically draws attention to the fact that the account given to Dr Boyd at the time does not appear to substantiate that which appears in paragraph 4 of Dr Ghosh's letter of 20th May 1997. He, in consequence, submitted that the reason for the evidence now becoming available from the two doctors is not the classification of Battered Women's Syndrome in 1994, but the change in her account of material events provided by the appellant.

This Court, in the light of these submissions, ruled that it would be proper to receive in evidence the current reports which we have identified from Dr Mezey, Dr Ghosh and Dr Boyd. We have considered that material, taking the view, as we did, that it is a matter of significance that Battered Womens' Syndrome was not part of the British classification until 1994. (Even at the time of trial, Battered Womens' Syndrome was by no means unknown. Indeed, it was referred to in the case of Ahluwalia, which was tried in 1992.)

However, in our judgment, it was appropriate for this evidence to be received for the reasons which we have given.

In the light of the Court's receipt of that evidence, Mr Riordon, on behalf of the Crown, does not seek to say that the verdict of the jury in this case can be regarded as safe. Accordingly this appeal will be allowed, and the conviction will be quashed. In a moment we will deal with the necessary administrative details for the retrial which is sought by Miss Kennedy and Mr Riordon.

There is one other aspect of this appeal to which we should refer. In the forefront of the original grounds in relation to conviction advanced by Miss Kennedy and junior counsel, who appears with her today, were complaints about counsel who conducted the defence at trial. Those complaints occupied five of just over six pages of the original grounds. They itemised nine allegations said to demonstrate, on the part of counsel, defiance of instructions and flagrant incompetence. In the written perfected grounds of appeal ultimately relied on, seven of those nine allegations find no place. The two which survive, which allege a failure to call certain evidence, and in support of which written argument was advanced to this Court in the appellant's skeleton, are, in part, dependent on the resolution of a conflict between the appellant and counsel who represented her as to the nature and terms of advice and instructions at the time of the trial.

In view of the conclusion which we have reached in relation to the real point of substance in this appeal, to which Miss Kennedy rightly addressed her oral argument, it is unnecessary for us to resolve that conflict. It is, indeed, undesirable, as there is to be a retrial, that we say anything at all about the appellant and her recollection. We do not do so.

However, in fairness to counsel, against whom very grave allegations have been made and not withdrawn, we think it right to say that, prima facie, the two remaining allegations have no more substance than the seven which have been abandoned. If there is, in the mind of any member of the public or any lawyer, a belief that counsel at trial, or, for that matter, on appeal, must act as a mere mouthpiece for the client, it cannot be too strongly emphasised that that belief is erroneous.

Counsel's job, in the proper performance of his or her duties to the client and to the court, is to exercise judgment and discretion as to the way in which the client's case can best be presented, and to give such advice, if necessary, in forceful terms, as, in his or her view, the circumstances required. Because a client wishes a particular question to be asked, point to be made or witness to be called, it does not follow that the question must be asked, the point made or the witness called. Still less does it follow that counsel is in dereliction of duty if he or she fails to ask the question, make the point or call the witness. It depends on all the circumstances of the particular case, including what has passed by way of advice and otherwise between client and counsel.

In the present case, there is nothing in the written material before this Court which begins to establish that trial counsel acted in dereliction of their duty in the conduct of the appellant's defence.

For the reasons which we have given, this appeal is allowed and the conviction quashed. We direct that a new indictment be preferred, and that the defendant be arraigned as soon as practicable, and that the retrial take place at Liverpool as soon as practicable.

MISS KENNEDY: My Lords, I am grateful.

My Lords, can I raise the issue of bail? This defendant has been in custody ever since she was initially arrested ----

THE VICE PRESIDENT: Which was?

MISS KENNEDY: In January of 1992. So she has been in custody for over five years. My Lords, the person who is anxious that she can come and stay with her is her mother, and her mother would stand a surety in the sum of £5,000. She has been in constant contact with her daughter and has visited her regularly and has been very much in contact with my instructing solicitors, and so it would mean that she could stay there until the trial. I would ask that you might consider the question of bail.

THE VICE PRESIDENT: The defences to which this appeal has been directed would, if successful, reduce the offence from murder to manslaughter.

MISS KENNEDY: Indeed.

THE VICE PRESIDENT: For reasons which it is not desirable I express in open Court, relating to the appellant, a substantial sentence would be likely to be passed in relation to manslaughter.

MISS KENNEDY: And, of course, already she has served a substantial sentence, or the equivalent of a very substantial sentence, and it would be my submission to the Court that obviously with retrials one tries to get them on as quickly as possible.

THE VICE PRESIDENT: We have directed it will be tried as soon as practicable.

MR JUSTICE KEENE: Miss Kennedy, is there not some statutory restriction on the power to grant bail given the previous conviction of your client?

MISS KENNEDY: Yes. I had not put my mind to the previous conviction at all.

THE VICE PRESIDENT: That was what I was rather more obliquely referring to, in a slightly different context than my Lord.

MISS KENNEDY: All I would say is that those who are here who ----

MR JUSTICE KEENE: Just a moment.

MISS KENNEDY: Sorry.

THE VICE PRESIDENT: Mr Riordon, can you help on this?

MR RIORDON: My Lord, I wish I had the relevant provision at my fingertips, but the law has changed so as to provide for severe restrictions on bail in certain circumstances, of which this is one.

THE VICE PRESIDENT: Yes. I am bound to say until my Lord, Keene J, referred to it, I had not had the Bail Act provisions in mind. It seems to be section 25 of the Criminal Justice and Public Order Act, Miss Kennedy, which is at paragraph 3-55 of Archbold ----

MISS KENNEDY: And it is fairly clear.

THE VICE PRESIDENT: ---- and it does not confer on the Court any power to grant bail.

MISS KENNEDY: I am grateful to my Lord for drawing that to my attention.

THE VICE PRESIDENT: I am reminded that we did not, but we now do, grant legal aid for two counsel for the retrial.