28 Mar 2008

HOGAN TO FACE RE-TRIAL FOR UNLAWFUL KILLING OF HIS SON

When hearing the judgment of the Greek Court in this case that this man was not guilty of any unlawful act because he was insane after just a one and a half day hearing, I did feel very shocked and felt immense sorrow for the mother.

British subjects who kill abroad are subject to our own jurisdiction to try them for those acts. What is unual here is that he has already been tried abroad but certainly, on the basis of our own law this was a mistrial. It is unheard of in UK to have such a short hearing into such a serious case without hearing properly from live witnesses.

At the Coroner's inquest in the UK the Coroner has now ruled that he pushed the children off and that was an unlawful act. He was arguing with his wife and from the witness account placed the children in front of the guard rail and then moved forward again and pushed them off. This sounds like deliberate murder to me. If he was psychotic, and I am not clear that he was, as opposed to be in a furious rage where he thought he would punish the wife in the most macabre way, then under UK law he would have been entitled to the defence of "dimished responsibility" to the charge of murder, on the basis that he was so ill at the time, he just did not understand the nature and quality of his act. However, this would not mean that he was "not guilty". It would mean instead that he would be guilty of manslaughter because diminished responsibility merely reduced the culpability of the accused, it does not say there was no unlawful act. Plainly there was. This would then entitle him to treatment in a secure hospital prior to serving the remainder of his sentence in prison. Unlike murder where the offender gets an automatic life sentence, the sentence would be considered on the basis of the danger he presented, therefore given the circumstances he would probably still have received a life sentence and be kept in custdody until the risk he presented was considered to be substantially reduced.

It is simply not reasonable that a man who has committed such a serious offence simply gets a few months psychiatric treatment and is then allowed home. No wonder this woman feels that justice has not been secured and that he is still a danger, he is!

It seems that we may now persuade the Greek authorities that this was a mistrial or if not, then we could place him on trial in the UK. I applaud the Coroner for making an appropriate judgment here that must give some satisfaction to this poor woman who may continue to feel threatened herself by him, given what he did to her children.

Of application to the McCann case, of course it confirms that even if either of the McCanns were ultimately found to be suffering from mental illness or serious pscyhopathic disorder this would not enable them to just escape scott free with nothing more than psychiatric treatment. Furthermore, at any time, UK authorities could elect to try them here, although as a matter of courtesy to Portugal will enable them to prosecute, should they so wish.

I hope the forum can remain a pleasant place for posters who genuinely wish to post on topic and not abuse others posters, or indeed myself, PLEASE.

Viv x



Balcony-death father could face trial again for murderBy DAN NEWLING - More by this author » Last updated at 20:47pm on 27th March 2008
Comments (52) The father who pushed his six-year-old son to his death from a fourth-floor balcony could be tried again for murder after his ex-wife declared that "justice has so far not been done".
As an inquest yesterday found that John Hogan "unlawfully killed" his son Liam in Crete, British police put in motion the legal moves that could see him face a retrial.
Officers have sent a file to the Crown Prosecution Service, where it will be reviewed to see if a case could be brought based on the testimony of previouslyunheard witnesses.

The Hogan family: New eye witnesses claimed John Hogan (far left) actually threw his son Liam (centre) and daughter Mia off the balcony after a row with his wife Natasha
One told the Bristol inquest into Liam's death she saw 33-year- old Hogan deliberately push his son from the hotel balcony 50ft up. The testimony was not heard at the Greek murder trial where Hogan was found not guilty after claiming to have been suffering from "an earthquake of insanity".
After the inquest Liam's mother Natasha Visser, who was Hogan's wife at the time her son died but who has since remarried, bitterly criticised the Greek legal system's failure to hold her former husband to account.
Shuddering with emotion, she described how she will remain haunted by the three hitherto-unknown British witnesses' descriptions of her son falling to his death.
Mrs Visser, 35, who claims that Hogan remains dangerous, added: "The Greek court made little attempt to establish the facts surrounding Liam's death and did not even call known eyewitnesses.

Distraught: Natasha Hogan said her life has been wrecked by her ex-husband John
"We understand that the decision about what happens next legally is in the hands of the English legal system.
"We can only trust that they will re- examine the evidence as a whole and make a decision that will protect John from himself and others."
She went on: "I cannot describe the pain I feel hearing that John had pushed his children off the balcony . . . walking away and then returning to push them.
"The image of the children looking like they were trying to reach out to each other will haunt me and my family for ever."
Hogan, from Bradley Stoke, near Bristol, turned killer during an argument with his then-wife on holiday in August 2006.
The former floor-tiler threw his two-year-old daughter Mia and Liam from the balcony before jumping himself. Mia survived.
Scroll down for more ...

Witnesses Iain and Sarah Davidson leave the Hogan inquest yesterday. Sarah broke down in tears as she recounted seeing the three plunge to the ground.
He told his trial he could not remember the incident. However Sarah Davidson, 38, who was on holiday in Crete, told the inquest: "I saw two children standing on the balcony on top of a wall. They were in front of the metal rail guard.
"The male came forward in between the two children and pushed them off."
At his trial, which lasted a day and a half, Hogan was declared to have been insane and legally incapable of being found guilty of murder or attempted murder.
Yesterday coroner Paul Forrest fell short of criticising the Greek verdict but said the trial did not have all the evidence in front of it.
He said Hogan's "incapability of understanding" was "irrelevant", adding: "The facts were abundantly clear in that the children were seen to be pushed off the balcony - objectively an unlawful act."


Liam Hogan died of severe head injuries after plunging from the fourth floor of a Crete hotel with his father, John
The Crown Prosecution Service said if Hogan were re-tried in Britain, it would be the first time a British citizen has been tried for a second time when the original court case took place abroad.
The Daily Mail understands that any retrial is more likely to happen in Greece, where the supreme court has the power to declare the original a mistrial.
Hogan remains in a secure psychiatric hospital in Greece but could be allowed to return to Britain a free man within months. That could complicate efforts by Mrs Visser's supporters to force a Greek retrial.
Hogan's family said he had been acquitted in relation to Liam's death because at the time "he was suffering from a psychotic condition such that he neither knew nor understood the nature and consequences of his actions".

519 comments:

1 – 200 of 519   Newer›   Newest»
atardi said...

Hi Viv and all,

Off to work.
Hope it will be nice here today.

lizzy said...

Hi Viv,
Interesting post and good to say that the plea of pyschiatric probs (excuse spelling )would not prevent a trial or justice.Good to see that any trial in this case should be in the country where the crime occurred ...so this one should be in Portugal. Lizzy

Niki said...

Hi Viv!

Is this where you are! I posted on the previous topic...
(Gerry's new blog)

--

I really do hope Hogan will have to face a second trial...
I'm afraid the legal system in Greece is quite corrupt,(if the "envelope" is big enough you can for sure get doctores to say whatever you want them to say...) so a second opinion would be good to seek justice whatever the outcome would be... Preferably a trial in UK...

Niki

hope4truth said...

Good Morning All

Another tragic case my freind e mailed me at work in Wednsday to say she was watching the news and was really upset and could not understand how anyone could hurt a child yet alone their own child? I went on BBC news and read the report and sat with tears streaming down my own face (good job I had the office door shut) so very sad I cant believe the pain the mother will go through and that poor little girl will need so much support how will she make sense of what happend.

Maybe it will be better for her if her dad is mentaly ill at least she wont think that he hated her when he did what he did.

Oh what a mess. Do you think her Dad will ever have access to her again? I have read of cases where children who have been taken away by the mother because the Dad was violent towards both Mother and Child and then has demanded his right to have access to the child and it has been granted?

I understand that families are important but surley the right of the child and saftey should come first.

hope4truth said...

Morning Niki

I have left the Easter Eggs in the shops now for all you OJ who have not yet had your Easter...

It was hard but had to be fair xxx

hope4truth said...

Right I am off back to bed girls at school it is raining and need to decide what we will do today...

See you later x

Niki said...

Hope! Good afternoon! ...When you wake up from your second sleep...

You truly are a nice person, leaving some Easter Eggs in the shops:)

If you get abstinents(is that a word?!?!), you are welcome to come here to help us with our eggs!!
All family and friends give eachother these HUGE eggs with toys inside for Easter. My boys are interested only in the toys, and I end up every year throwing a ton of melted chocolate when the first heatwave hits us (usually in June...)!

Have a wonderful day:)

Zodiac said...

Hi All,

Gina if you look in today, please do not allow others to stop you having your say. You are a much respected poster on Alsabellea's and now Viv's site. For the last part of the DE forum you took the boredom away with your sense of humour. Please do not change your name, it takes a long time to build up trust, I know who you are and would never hesitate in posting to you. You are entitled to blog where you want, there are a lot of posters (or should I say 4/5 plus their alter ego's) who would love to see the other blogs and forums close, do not give them the satisfaction. The abuse you receive is due to you being well liked.

Hope to read you later, Gina.

Cláudia said...

Good morning, all.
I would just like to leave a message for the number one fan of child neglecters, Rosipoop. Apparently she thinks that I've been posting on her blog, according to an e-mail I just got. I have never posted there and as the people who are close to me know, there is only one situation which would change my mind and make me post there. Until that happens, nothing will make me do it. And even if I did, I would do it under my name, the only name I ever used to post since the DE. As for the English lesson, I don't need it, thank you very much:

neglecter: a person who is neglectful and gives little attention or respect to people or responsibilities; "he tried vainly to impress his neglecters"

http://wordnet.princeton.edu/perl/webwn?s=neglecter

P.S: I was surprised that the definition didn't include a picture of K&G.

Gina said...

Hi Zodiac

Just turned on the computer to try and finish off what I was trying to do yesterday. I am useless with computers but get there in the end.

Regards yesterday, let's just draw a line under it, people will say and believe what they want and to be honest I don't care anymore. While they are talking about me, the are leaving some other poor sod alone so I should soon be in line for the martyrdom that I am apparently seeking.

Regards closing down forums, I just wish everybody would unit in trying to find a way to close down chat lines and the like that are used by paedo's and those who take advantage of the young. Now that would be an achievement we could all be proud of.

Zodiac said...

Gina,

Yes I agree closing down the chat lines for those unsavoury types would be best concentrated on. Keep well Gina, I am off out for a while and its is pouring here. Nice to see you here.

Zodiac x

supertroll said...
This comment has been removed by a blog administrator.
docmac said...

Ola Claudia!

Rosiepoop thought you were trying to poop on her parade? Hahahahaha!

I obviously did not read that far last night. I stopped reading their last article when Jane Special Brew and the Poopster were insulting Alsabella with the most disgusting names I have yet read from any of them. As the barrister who is investigating and tracing the perpetrator responsible for the so-called 'outing' of Rat says, many of them appear have the intellectual capacity of an 8 year old. I wholeheartedly concur with his view.

Gina said...

Have a good day Zodiac, hope the weather improves for you soon. Take care x
CLAUDIA - Leave it hun, it is not worth the effort, you know what you know about yourself as I know what I know about me, and as long as we are comfortable with what we stand for, and why we do what we do, that is all that matters. Trying to explain yourself to those who just want to argue is a complete waste of time. Take care

VIV - I hope you do not mind me posting on here, I do feel a bit guilty having only posted on here once or twice before. I knew everybody used to read Alsa sight too so it seemed pointless saying the same thing on both blogs

I am just looking for that posting wizard made yesterday on the book as I did not have time to read it yesterday.

nancy said...

Hi Viv and all -

A really good article on the Greek tragedy. I was amazed at how quickly that went to Court and now the murderer is free - just how was that allowed - we moan about the time our courts take for cases to reach trial, but that trial was over before you could bat an eyelid and as you said, no witnesses called, nothing! His wife and little girl should be the main priority at the moment and they both need time to come to terms with that terrible crime. Just how could any father do something like that unless he is totally insane and that hasn't been proven? I feel so sorry for that poor little boy whose life was ended in such a despicable way.

nancy said...

Gina - I totally agree that there are many websites that should have been banned long ago still being used by children not old enough to know the dangers! Why don't all countries get together and bring in some law preventing these sorts of depraved things being shown to our children. Our blogs pale to nothingness in comparison!

Anonymous said...

All is well on this blog.
The sickos are back discussing dead children...All in the name of justice of course...

hope4truth said...

Anon

What is your point because you have lost me?

Gina said...

Nancy, unfortunately it is not easy to access some of those sites let along close them (from what I have been told by people who job it is to trace them). The paedo thing is like dealing with terrorists, you get one and 6 more are in training to take over. People are working on this and have been for years, but it is almost mission impossible.

viv said...

Hiya Hope

In the extreme circumstances here of the father attempting to murder this little girl, and the impact contact would have upon her and her mum, I am sure no court would allow him contact to her.

So do not worry about that one:-)

~Vivx

Wizard said...

Good Morning All,

For ex-Express HYS posters in the Madeleine McCann case the Guardian 27.03.06 – media pages says: -

Desmond blamed for McCann Stories
National Union of Journalists members at Express Newspapers have blamed editorial interference by proprietor Richard Desmond for the spate of Madeleine McCann stories that led to the publisher paying £550,000 in damages last week, after voting for a series of 24-hour strikes over pay.
Express Newspaper last week paid £550,000 to the McCann family, apologised at the high court and ran unprecedented front page apologies across its four titles - the Daily Express, Sunday Express, Daily Star and Daily Star Sunday.
At a meeting of the NUJ Express Newspapers chapel that voted for three strikes over failed pay negotiations, union members also expressed concerns over Desmond's alleged interference in editorial decision making at the company's four national titles.
"We want the editors to be left to edit, free from commercial interference that puts opportunities to boost circulation ahead of journalistic integrity," said Michelle Stanistreet, union representative at the Express and NUJ president.
"Our titles need real investment. Instead we face continuous rounds of budget cuts and inadequate staffing levels. Now we're being told to take a below-inflation pay offer and be grateful we're not facing more redundancies this year. We've simply had enough."
The first strike will run from 6am on Friday next week, coinciding with the NUJ's annual delegates meeting. Express Newspapers journalists will also go on strike on the following two Fridays.
The payout and apology to the McCanns could endanger Daily Express editor Peter Hill's role as a commissioner at the Press Complaints Commission, with chairman Sir Christopher Meyer admitting last week that the commission is reviewing his position.
Express Newspapers had not responded to a request for a comment at the time of publication.

Wizard said...

Just been doing a quick look round the press and noticed another book to be published shortly 05::05:08 “Vanished: The Truth About the Disappearance of Madeleine McCann. £6.39 by Danny Collins – Available amongst others from Tesco on line.

viv said...

Just read all the rest of the posts and lovely to see you hear including the delightful, the amusing, the Portuguese lady who knows the English language better than the Pros, the one and only Claudia. Gina it is lovely to have you here. Hello Doc! Hope shame on you sloping back off to bed just cuz its raining (only jealous)

Niki I did read your post on the other page. One can certainly say something for Gerry and his blog, he is not short of brass necked cheek is he, absolutely no shame at all. I am sorry to hear about the Greek courts, it would have greatly increased the distress for this lady who has her daughter seriously physically and mentally injured and her little boy dead.

I am sure all our hearts go out to her and try to empathise we how she must feel. Let us hope she does see a better attempt at justice from now on to help heal the wounds.

Sorry rather busy so cannot post much, but wil keep popping in for a read. If there are any McCann updates I am sure someone will post them:-)

Viv x

hope4truth said...

Hi Viv

My Dad is wonderful I have adored him for as long as I can remeber. The worse thing he has ever done is give me away nearly 16 years ago to my husband (I thought those words who gives this woman were horrible) and we both found that hard. Luckly for me he gave me to my best freind and I adore him as well...

This poor little girl must have really loved her Dad and he will allways be her Dad she will find that very hard to live with and in time may wish to see him again which will cause her distress all over again.

There was a case a few miles away from here where a Dad took his children off in a car and tried to gas them and sent his wife a text to say what he had done. Luckily the police found them before it was to late and he is now in prison but those very children must be very confused by everything.

On the news last night they were talking outside court after two 15 year old boys had been found guilty of murder. They kicked a young man to the floor and were kicking him in the head when his girlfriend tried to protect him and she was kicked to death. One of the police officers talking afterwards said that when one of the boys was arested his mother laughed and took the micky thinking it was really funny?

I know that the above is diffrent but this boy must have been brought up to belive he could do as he pleased and as a result a young girl is dead. It is about time parents learned how to deal with children and realise they are not property to do with as you please.

What is going wrong here?

Wizard said...

The money spinning around the McCann case is still at a peak. The article regarding the DX highlighted in my previous post is an example. Like Princess Diana, Madeleine sells papers. A number of books have been published or are about to be published and the Times gives a review today on comedienne Scott Capurro at the Soho Theatre as he tried last night to get mileage and shock out of the Madeleine McCann case. Tragedy to comedy?

Gina said...

Wizard, it is obvious that loads of people are going to try and make money on the back of this story, but for someone to bring a book out now "The TRUTH about the disappearance of Madeleine McCann" is a bit suspicious, unless it has been written by the abductor, the McCanns or one of the tapas group!!!

hope4truth said...

Nikki

LOL but on a serious note I cant believe you have to throw away chocolate!!!!!!

You must melt it down and mix it with rice crispies to make lovely crispie cakes (add some marshmallows that is lovely)...

I only had a small sleep it is pouring with rain today so it looks like the pictures lunch and DIY shopping again...

xxx

hope4truth said...

Gina

Nice to see you today is it sunny where you are it is pouring here
:o(

xxx

Gina said...

Hello Hope, yes it is nice sunny day today but windy. Oh no, I will rephrase that, it is raining, freezing cold and blowing a gale. There now, that should stop you getting jealous and picking on me, boo hoo boo hoo ;-)

hope4truth said...

Gina

You are learning you are not supposed to tell the truth or give your opinion you are supposed to post what we want to hear LOL

It was lovely here yesterday oh I forgot I live in England rubbish weather guaranteed xxx

docmac said...

Hi Viv

I was just reading the Hogan story on the DX and happened on another sad tale, that of the teenagers who have been convicted of the murder of Sophie Lancaster in Bacup.

The saddest part of it was the reactions on HYS. There are calls for these 2 to be hanged, shot, sent to Saudi Arabia for public stoning or jailed until the age of 18 and then executed by lethal injection! I could not believe what I was reading. Are these people for real? Life, yes. Bring back hard labour and let them pay for their own incarceration, yes. But institutionalised murder? Does the average Brit really want to tread that path again?

By the way, there is a picture of the victim lying in the ICU before her tragic demise. If any of the pro lobby sees it, let them take heed that she exhibits the classic 'raccoon eyes' sign of a skull base fracture, identical to the injury suffered by LEONA Cipriani.

Wizard said...

I have just been thinking about the Greek Court judgement highlighted in Viv’s article today.

I have never quite understood the law regarding a plea of diminished responsibility due to a mental illness. If someone commits a crime whist insane, then goes onto receive successful treatment why should they on recovering their health serve time in prison for a crime that was committed when they were not in their right mind and therefore not responsibly for their actions.

Imo all murderers by definition are insane but of course the law is different. It is very difficult to draw a line where rage ends and madness begins and even professionals get it wrong. Is a plea of insanity a soft option? Perhaps but surely the inference is with insanity the individual might suffer further periods of illness and do it again therefore they will be held longer.

docmac said...

Sorry Viv, the picture mentioned is in the Mail article on the same case.

Gina said...

Hope thanks for the tip

I have always believed that the McCanns have always done the right thing. They were on holiday, they deserve to go out with their friends at night, after all the kids had a good day in the creche. After M was taken, they did what any other parent would do, court all the publicity they could in order to find their daughter, and they have bravely battled on despite all the unnecessary bad comments that have been made against them. I admire them for jumping onto every single opportunity to get themselves in the spotlight and their determination to make their child the top priority in the search for all missing children. A shining example to us all.

PS. I lie

Wizard said...

Hi Gina,

I suspect you and I could give a better version of "the truth" than Danny Collins.

Penelope1 said...

Hi Viv,

Been out of the country for a while, not ignoring the blog! Did Alsabella close down her blog as she was so upset, or was it hacked into as some claim?

I know this is old news by now, but I was really shocked to see that the McCanns won their libel case against the DE. It is only reasonable that the McCanns should expect bad press - they are offical suspects for murder and possibly fraud, with the Fund. They are the ones who courted the publicity in the first place - any intelligent person knows that the media turn on people.

Anyway, came across a v good article on the subject on a new blog I found, by a Portugese lady called Joana. Its from "Wales on Sunday"
---------------------------------
24 Março, 2008

McCanns: We all should be sorry


by Angharad Mair

OK! Hands up all of you, like me, who devoured every tantalising titbit and salacious rumour regarding Kate and Gerry McCanns’ ‘guilt’ in the Daily Express last summer.

At the time the stories were at their most sensational, I was on holiday in Spain, and every morning I would buy the Express – not my usual choice of paper – but hey, lounging by the pool on another sunny day the stories from the Portuguese Press, recounted in detail by the paper were just too good to miss. Day after day the headlines were incredible as the Express seemingly single-handedly had the low-down on what was actually happening in Praia da Luz – from sleeping pills and a hidden body to a great cover-up conspiracy.

Not much of it was based on truth, but I never actually remember the Express explicitly claiming so, from what I remember they always had some kind of disclaimer that these were rumours reported in the Portuguese Press.

But it’s cost the paper and its sister papers dearly – they had to print a large apology on the front page and pay the Maddie McCann fund more than half a million pounds.

One wonders why they felt under pressure to do this. After all, Gerry and Kate are still official ‘arguidos’, and the Portuguese police were obviously – at one time anyway – convinced that the little girl’s parents were somehow responsible for her disappearance.

Madeleine McCann’s grandmother spoke on the news this week about the need to take the papers to court, because their editors should be taught a lesson in respect.

Personally, I find newspapers can be far more distasteful than the untrue tittle-tattle reported day after day about the McCanns, although I do understand, and sympathise, that the agony that was piled on top of them must have made the loss of their little girl so much harder to bear.
But take the various headlines about Heather Mills this week – ‘Pornoccio’, ‘Lady Liar’, ‘Crazy Claims of Sleazy Model’, ‘Gold-digging, ex hardcore porn, one-legged, self-centred fantasist’.
For a long time now, the tabloids have taken great delight in publishing the cruelest descriptions possible of Heather Mills.

Even the Guardian had a headline ‘Macca-Mucca moolah ruling’, with the word Mucca for Heather Mills taken from The Sun who has described her in this derogatory way since they found photographs of her in a German sex handbook. The bullying of Heather Mills has become so accepted that even a respected paper such as the Guardian feels that it can resort to cheap tabloid headlines.

Even the Judge seemed to have been caught up in the assassination of Heather Mills.
Mr Justice Bennett allowed a 58-page dossier to become public knowledge with words describing Heather as ‘warped’, ‘distasteful’ and that she should be more ‘circumspect’ about her dealings with the media.

Excuse me? What’s it to him? All she was trying to do was to secure the best financial deal possible for herself and her child after she had been lucky enough to marry one of the richest men in Britain.

Her pay deal is not the biggest in the history of celebrity divorces, and even though she obviously appears to be something of a fantasist, there was no real need for a professional such as the Judge to be quite so personal and unkind in his ruling.

I find the vilification of Heather Mills to be distasteful in the extreme. It is nothing but misogynist bullying.

I certainly don’t understand the female columnists who delighted in printing offensive comments about Ms Mills and newspaper editors who use topless models to make profits are completely two-faced when they brand Heather Mills as a whore. But it’s open season on her, and whatever she has to suffer, you can bet there’ll be no front page apologies for ‘defamatory’ remarks made about her.

No-one actually believes the McCanns to be anything but innocent, but at least they have now had their name cleared, in bold print on the front pages.

If I remember rightly Robert Murat was subjected to the same treatment, but will probably never be able to afford the huge sums of money it takes to clear your name in the Press.
But then again, the McCanns have always been treated with a large degree of favouritism – and the Express apology, and the reporting of it by other papers has been nothing but blatant hypocrisy.

Source : Wales On Sunday

Gina said...

Wizard I totally agree all murderers are insane. Those who commit manslaughter however no necessarily so as IMO it was not planned.

Onthefence said...

Docmac. You said
(I stopped reading their last article when Jane Special Brew and the Poopster were insulting Alsabella with the most disgusting names I have yet read from any of them.)

I have just been over to read all the comments last night, and I did not find one that was worse than the names you are calling Jane and Rosiepops.
You really should learn to practice what you preach. For a doctor I find your comments to be childish and without a sign of the intelligence normally found in the medical profession.
If you don't want to be abused, then don't abuse.
It is as simple as that!

hope4truth said...

Doc

I wont go and read the DX I will take your word for it and I agree with you..

The worst of it is more and more thugs are brought up by ill equipt parents who have no time for them at all but if ever told their child is doint wrong blame the world for picking on them...

It has to stop a child deserves the right to an upbringing that teaches right from wrong and does not allow the parent to do anything that will hurt the child or put them in danger.

We cant be perfect parents but must all take advice from time to time and learn to enjoy our children every second is precious and in no time they will be leaving home to begin thier own families..

xxx

hope4truth said...

Gina

You have got it girl LOL

I am off out see you all later xxx

Gina said...

Penelope1 interesting article but it was this bit that I found difficult to accept

No-one actually believes the McCanns to be anything but innocent, but at least they have now had their name cleared, in bold print on the front pages.

We all understood why the DX withdrew claims that could not be proved and apologise, but why they went as far as claiming the McCanns are innocent is beyond me.
The may well be innocent, but they are still arguidos, so they could be guilty. I do not understand therefore why they went that far. There are lots of things I find confusing however.

OFF NOW, HAVE A GOOD DAY ALL.

docmac said...

onthefence

Try Arsashite (courtesy of Jane) or Arsewipabella (courtesy of Rosie).

What you think of me is as important to me as what your real name is. By the way, do tulips grow on both sides of the fence?

docmac said...

Morning (afternoon for me) Hope

The mother of the main perpetrator was sniggering along with her son in the courtroom when the judge was detailing the horrific injuries that the young lady had suffered. They have a saying here in Afrikaans, "die appel val nie ver van die boom af nie", which translates as "the apple does not fall far from the tree". In this case: like mother, like son.

Onthefence said...

Docmac, And I suppose you calling people Jane Special Brew and the Poopster is ok?
Im my honest opinion your name calling is as bad as theirs.
As I already said, if you don't want to be abused then don't abuse.
I give the same advice to Alsabella because she has named others as Highway Whores and much more.
To stop constant blog wars then name calling needs to cease on both sides.
In my opinion you are all as bad as each other.
It is a disgrace when used in the name of justice for Madeleine McCann.

By the way tulips don't, but sweet scented flowers do.

Di said...

Good morning everyone

Read this on Sky message board, sounds interesting!!

Later on the same poster claims his source is 100% reliable.



Quote: Good afternoon.
You may be interested to know that the final phase of Case McCann is now underway. The very latest word from my friend is that there might be a fourth arguido announced very soon, unless this individual starts cooperating with the authorities. So far this person has refused to accept an interview date. I am sure you will join me in wishing the British and Portuguese investigators the very best of luck, in their attempt over the next few weeks, to solve the mystery of Madeleine McCann.

Regards
r2d2

viv said...

Hiya all

A bit of a lengthy read but a fascinating murder case and the defence of diminised responsibility, looking at all the psychiatric evidence and how the court have to so carefull consider the state of mind of the accused at the relevant time. I really would not want someone keep bashing a needle in my leg that's for sure! Where the appellant is a drink and drugs user she has to show that she would have been mad even if she had not used the drink and drugs or that the drink and drugs have actually made her mad. Murder conviction upheld! It is a difficult defence to run and quite often the consequences of being found criminally insane can be worse than an ordinary conviction e.g. a lifetime in Broadmoor. Sometimes a straightforward conviction for murder and ultimate release on parole is a better option! Public protection is always part of the sentencing rationale is very serious cases. I think this lady may have been better trying to plead the alternative defence under the Homicide Act 1957, provocation, which will also reduce a murder charge to manslaughter because of the seriously provocative behaviourr of the victim. Did he sexually abuse? Law Report so a bit technical..

IN THE COURT OF APPEAL
CRIMINAL DIVISION


Lord Justice Scott Baker:

Background


Susan Shickle appeals against her conviction for the murder of Norman Harvey. The case has been referred to us by the Criminal Cases Review Commission. We are invited to consider fresh evidence, the purpose of which is to show that the appellant had a viable defence of diminished responsibility that was never put before the jury and that therefore the conviction for murder is unsafe.

The killing took place over nine years ago, on 2 May 1996, and the appellant was convicted in the Crown Court at Oxford on 25 February 1997 before Latham J, as he then was, and a jury. The appellant's appeal to the Court of Appeal was dismissed on 15 July 1997.

The victim was a sixty eight year old diabetic with whom the appellant had a long standing and complex relationship. He had first come into her life when she was 9 years old. She used his flat as a haven from time to time when she was without accommodation. On a large number of occasions she had provided help for him when he ran into difficulties with his diabetes, which he was not very good at managing. Her history is, in summary, that she was born in September 1960 and was therefore aged 35 at the time of the killing. She had a boy of 13, Andrew, who was a key prosecution witness. He lived with his step father, Steven Shickle, in Banbury. The appellant had two other children, both girls, by Steven Shickle and they too lived with him. He and the appellant parted in August 1994 when he left, taking the children with him. There was subsequently a divorce. At the end of 1995 the appellant began to live with a man called Mark Nash in a flat owned by a neighbour of Mr Harvey's called Wickham. On 22 April 1996 there was a quarrel between the appellant and Wickham and she and Nash were evicted. They moved into Mr Harvey's flat.

The prosecution relied upon the evidence of Andrew Shickle and William Tibbert. They had attended Mr Harvey's address in order to visit the appellant, arriving about 6pm. Shortly after Andrew and William arrived, Mr Harvey returned home. On his return the appellant asked Mr Harvey if he would go to the shops to buy some bread and cider for her. Although Mr Harvey agreed to go, he informed her that the shop would not sell him alcohol. The appellant told him to stop being so silly, at which Mr Harvey lent over to her and asked her where her mother was. This upset the appellant as Mr Harvey knew that her mother was dead. She became abusive towards Mr Harvey, pushed him into the bedroom and punched him.

When the appellant grabbed a knife Andrew intervened in an attempt to stop her. At this the appellant turned to him and said: "just think of what he did to your little sister" (allegations had been made in 1992 that Mr Harvey had indecently assaulted Andrew's sister, but a prosecution was not ever brought). The appellant discarded the knife and proceeded to search for a syringe. On finding one she filled it full of insulin and stabbed it into Mr Harvey's leg. The appellant repeated this process with two further syringes. Andrew stated that during this time the appellant was saying words such as, "I am going to kill him." The prosecution called expert evidence that the cause of death was an overdose of insulin.

Andrew's friends, Danny Cowley and Cristian Fannon, testified that when they arrived at the flat Andrew came outside and told them something along the lines of, "My mum's gone mad, she is going to kill him. She's injecting him with insulin". They then entered the flat and witnessed the appellant administer the second and third injections. Andrew and his friends left sometime after the third injection and went to Nicholas Lambrianou's house in order to find the appellant's boyfriend, Mark Nash. On finding Mr Nash, Andrew informed him, in the presence of Mr Lambrianou, of what had occurred. After the attack Mr Harvey went to bed. The appellant discovered Mr Harvey's body in bed the following morning.

The death was not initially treated as suspicious and the police obtained a witness statement from the appellant. She stated that Andrew had arrived about 7pm and stayed for about an hour, but Mr Harvey had gone to bed prior to Andrew's visit. About 9pm her boyfriend, Mark Nash, arrived at the flat and they both left at 10.30pm in order to purchase some food, returning shortly afterwards. They went to bed about midnight, and nothing untoward happened that evening. She awoke about 8.15am and discovered Mr Harvey's body.

When the appellant was arrested the police decided she was not fit to be interviewed and, owing to her condition, she was placed in a cell with a police officer. Whilst in the cell the appellant started to talk about what had occurred the previous evening. In essence she said it was Andrew who had injected Mr Harvey with the insulin. When the appellant was eventually interviewed by the police she answered, in effect, no comment.

The defence case was, and the appellant gave evidence to this effect at the trial, that Mr Harvey had previously abused her daughter Emma and had also raped the appellant. She asserted that she nevertheless had no animosity towards him. However, she thought that Andrew did not like him. Her evidence about the period leading up to Mr Harvey's death was that her recollection was quite clear until 5.45pm when she took some 'speed', alcohol and other drugs. After this she could not remember much, other than that there had been an argument about getting some food. She did not remember attacking Mr Harvey, but stated that, if she had injected him, she would have remembered it. She recollected Andrew leaving the flat and Mark arriving later on in the evening and their going to the shops to get some food. Her next memory was finding Mr Harvey the following morning.

The defence also adduced expert evidence regarding the cause of death, challenging the prosecution case. In summary, the contention was that, in itself, insulin is not a toxic substance but if administered in excess it leads to hypoglycaemia. If untreated, this in turn results in coma rather than death. Mr Harvey's general practitioner testified that owing to Mr Harvey's frail state death could have occurred at any time, most likely from heart failure.

The main thrust of the appeal that was subsequently heard by the Court of Appeal was that the judge had erred in ruling that the evidence of Messers Lambrianou, Fannon and Cowley as to the comments of Andrew was properly treated as part of the res gestae in the case. The Court of Appeal agreed with the judge that this evidence was admissible following R v Andrews [1987] AC 281. The court thought there had been a misdirection on intent but concluded that it had no bearing whatsoever on the safety of the conviction.

Why was diminished responsibility not run at the trial?

We have a note from leading and junior counsel, Mr Michael Austin-Smith Q.C and Mr Simon Davis, who represented the appellant at the trial. The appellant's instructions were that at the material time she was under the influence of drink and/or drugs and had no memory of events. She had neither wished to harm the deceased nor had any memory of doing so. The account given by Andrew and his friends must have been fabricated, alternatively Andrew had totally misunderstood the situation. She could not recall having administered any injection, although it was possible she may have administered one if she was under the impression Mr Harvey was in a state of confusion preceding an attack.

The defence had the benefit of assistance from a consultant toxicologist and a consultant pathologist. Their advice was that there were substantial difficulties in establishing the cause of death in cases involving an allegation of murder by injection of insulin, because insulin itself is not toxic and usually, if administered in overdose, results in hypoglycaemia, which, if not treated promptly, leads to irreversible coma rather than death. Death, when it does follow, is thought to be caused by a reduction in potassium levels leading to heart failure or to brain damage caused by glycogen deficiency. There was also the general practitioner's evidence (called by the prosecution) that the deceased's frail state was such that death could have occurred at any time from natural causes. It was also going to be very difficult for the prosecution to establish that the level of insulin in the deceased's body at the time of death exceeded the therapeutic dose. This was because the rapid degradation and dispersal of insulin and its breakdown products made accurate calculations of post-mortem levels, from post-mortem findings, notoriously difficult to achieve.

The scientific and pathological evidence available to the defence suggested that it was possible there had not been an insulin overdose and that, if there had been, it was not the cause of death. Also, there may only have been one injection site rather than the several alleged by the prosecution.

The defence had two psychiatric reports. Neither suggested an abnormality of mind so as substantially to diminish the appellant's responsibility. One, from Dr Bullard, dated 20 June 1996 (prepared for a bail application), of which more later, said there was no evidence the appellant was suffering from mental illness but she did have a long standing personality disorder associated with a chaotic lifestyle. She had a long history of alcohol and substance abuse. The other was from a prison psychiatrist who rejected any suggestion of mental illness.

The defence team was faced with a defendant whose case was that she had not administered the fatal dose of insulin. There was a real issue about the cause of death and, assuming the prosecution was able to prove homicide, whether it was the appellant who injected the fatal dose or doses into Mr Harvey's body. An accidental overdose by the defendant was another possibility, bearing in mind she accepted she might have injected him once if he appeared to need insulin.

None of these defences lay easily with the defence of diminished responsibility which predicates an acceptance of responsibility for causing death along with the appropriate intent, coupled with the burden of proving that the responsibility was substantially diminished by abnormality of mind.

Further, the psychiatric reports to which the defence had access said nothing to suggest there was any realistic basis for diminished responsibility. There was no indication that the appellant's heavy drinking had led to brain damage or that alcoholism had led to abnormality of mind. Counsel described her as lucid, presentable and, at least to the layman, devoid of any manifestation of abnormality of mind. There was no basis for thinking that the personality disorder identified by Dr Bullard, in her psychiatric report prepared for the bail application, could form the basis for a compelling case of diminished responsibility. The evidence to support diminished responsibility was described by counsel as at best weak and probably, more realistically, non- existent. We shall refer to all the psychiatric evidence in more detail later.

Counsel's note concludes as follows:

"It was our judgment that we could not risk running a weak diminished responsibility argument as yet another further alternative. Had there been any evidence to support diminished responsibility we might have been forced to take a different view but, as it was, neither our psychiatrist nor the psychiatrist instructed by the prison service found support for such a conclusion. Thus, absent any medical evidence to suggest that the defendant's responsibility was diminished at the material time, we felt that the only viable proposition was to run the case as we did."
We find this conclusion entirely understandable. Indeed it is difficult to see how responsible counsel could have reached any different conclusion. Nevertheless, the problem remains of how to deal with the situation in which there would have been available at the trial a viable defence of diminished responsibility if the appropriate psychiatrists had been approached.

The fundamental question for the court is whether the conviction for murder is safe. The appellant seeks the leave of the court to call fresh evidence to show that the conviction is not safe. That evidence comes from two psychiatrists, Dr Bullard and Dr Mendelson. Its purpose is to show that the appellant did have a viable defence of diminished responsibility under section 2 of the Homicide Act 1957. The prosecution have evidence from a third psychiatrist, Dr Joseph, to contrary effect. Each of the three is a psychiatrist of experience and eminence. The prosecution submit that, if the court considers fresh evidence from Dr Bullard and Dr Mendelson, it should also consider the fresh evidence of Dr Joseph.

Section 23(1) of the Criminal Act 1968 gives the court a discretion, if it thinks it necessary or expedient in the interests of justice, to receive any evidence not adduced at the trial. Section 23(2) requires the court in considering whether to hear any such evidence to have regard in particular to:

a) whether the evidence appears to the court to be capable of belief;
b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;
c) whether the evidence would have been admissible in the proceedings from which the appeal lies on any issue which is the subject of the appeal;
d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
In the present case the first and third criteria are plainly met. The submissions on the appeal have focused on the second and fourth criteria, i.e. whether the fresh evidence might afford a ground for allowing the appeal and whether there is a reasonable explanation for not having adduced it at the trial.

Having read the reports of the three psychiatrists we decided to hear their evidence de bene esse before making a formal decision whether to receive their evidence under Section 23. Each of the three psychiatrists has therefore given evidence before us and been cross-examined.

Dr Bullard

The court heard oral evidence from Dr Henrietta Bullard, who also produced three reports for the purposes of the appeal dated 24 February 2004, 18 March 2004 and 12 May 2005. Additionally the court had her report dated 20 June 1996 prepared for the bail application before the trial.

In her report of June 1996 Dr Bullard recorded that the appellant's medical notes were not yet available but that she had had treatment for agoraphobia at the Elms Clinic and treatment at the Ley Clinic. She was not suffering from mental illness but did have a long standing personality disorder associated with a chaotic lifestyle, with difficulties in relationships and problems resulting from her addiction to alcohol and drugs. She was about three months pregnant at the time of that report. Dr Bullard reported no abnormality in her cognitive functioning. There is no suggestion in this report of the possibility of a defence of diminished responsibility. Dr Bullard's response, when asked about this, was that she was only instructed on a bail application and did not have access to the appellant's notes or to the depositions. It would not have been possible, she said, to make any comment about diminished responsibility at that stage, even had she been asked to do so. In our view, such contemporaneous medical evidence as there is is of some importance for two reasons: first the court has to consider the appellant's mental state at the time of the killing and second it is relevant to look at what medical evidence was or might have been available to the defence team. Other contemporaneous medical evidence includes a report from Dr Nkwam, a prison medical officer, dated 11 November 1996 prepared for the Oxfordshire Local Authority in relation to the then unborn child. That report was based on several interviews with the appellant and ante-natal consultations from 6 May 1996, the date on which the appellant was remanded in custody. Dr Nkwam described her as a "young physically health lady with no overt signs of mental illness." There is also a report from Dr Michael Orr, a consultant psychiatrist prepared 10 years earlier in September 1986. He had access to the appellant's psychiatric case notes from 1976 and the report was based on an interview at the Elms Clinic on 16 September 1986. Whilst the report was made in relation to custody proceedings, again it is relevant to note that there is no reference to mental illness or personality disorder.

Also, there is a report from Dr Browne, visiting consultant psychiatrist to HM Prison Holloway dated 25 February 1997. This report refers to a report by Dr Franciosi, dated 23 October 1996, which we have not seen, and also to the report by Dr Nkwam. Dr Browne found no evidence of illness in the clinical or formal sense. The appellant was normal in manner and behaviour and able to give a good account of herself. She was not mentally ill. Her past history would not support a diagnosis of personality disorder/ psychopathy. However, Dr Browne concluded with the words:

"I understand that she is denying her guilt for the offence so it is not possible to put forward any possible psychological/psychiatric explanation for it."
When Dr Bullard examined the appellant in February 2004 the appellant said she could not remember the killing and still had only a vague recollection of the day of the offence. Dr Bullard concluded that the appellant suffered from an emotionally unstable personality disorder which she described as "severe". She had characteristics of both the impulsive and borderline types of personality disorder. She said emotionally unstable personality disorders are serious mental disorders and the appellant had had disabling symptoms since the age of thirteen. This was, in her opinion, an abnormality of mind due to inherent causes which substantially impaired her mental responsibility for her acts in doing the killing.

In that report Dr Bullard criticised the reports of Dr Browne and Dr Nkwam for not mentioning diminished responsibility and questioned what their instructions were. She concluded by saying it was difficult to persuade juries that personality disorders are serious mental disorders but in this case there was well documented psychiatric evidence and medical history to provide evidence for this defence.

In her second report of 18 March 2004 Dr Bullard described the killing as a domestic one and said "diminished responsibility must be the most plausible defence for a woman with her psychiatric and social background." She said it was unfortunate that the defence had failed to uncover the extensive medical and psychiatric records from hospitals attended by the appellant since the age of fourteen. Had they done so, however, they would nowhere have found any diagnosis that the appellant was suffering from a personality disorder.

Dr Bullard's analysis was that the appellant had 'forgotten' the period during which she injected Mr Harvey with insulin. Dr Bullard said this type of loss of memory is selective and that the suppression of memory was not under the control of her will. Accordingly, she would, when instructing her counsel, have glossed over the unpleasant parts of her life and emphasised those parts which depicted her as a tormented and persecuted victim. This explained why she ran the defence that she did, claiming she had no intention to harm the deceased despite what he had done to her and her daughter. Thus, her failure to instruct her lawyers properly was due to, or significantly contributed to, by her abnormality of mind. She had an overwhelming tendency to deny issues that caused her emotional distress. Denial was not a wilful process but one governed by psychological forces designed to protect the individual from disintegration and fragmentation. This was the reason for loss of memory rather than a failure of registration due to extreme intoxication.

In essence the case in this. The very condition from which the appellant was suffering effectively prevented her from admitting her culpability and providing details of her troubled past to her lawyers. Her psychiatric condition effectively removed the possibility of putting the issue of diminished responsibility before the court, as it caused her to maintain she was not involved with Mr Harvey's death.

Dr Bullard's final report is dated 12 May 2005. This report adds little to her earlier expressed opinions and deals largely with points made by Dr Joseph. In particular it refutes his conclusion that the killing would not have occurred if the appellant had not been intoxicated with amphetamine and alcohol at the material time. In it she also seeks to answer Dr Joseph's point that a diagnosis of long standing emotionally unstable personality disorder does not lie easily with the absence of overt evidence of it during the time the appellant has been in prison.

When Dr Bullard gave evidence before us it became clear that she feels strongly that diminished responsibility is an obvious defence in what she described as "domestic killings" and that it is often overlooked because of a failure to elicit psychiatric history that would show a severe personality disorder. She did, however, observe at the conclusion of her first report that, "it is difficult to persuade juries that personality disorders are serious mental disorders."

Dr Bullard emphasised that in her opinion denial is an aspect of the illness, not just denial of what she did to kill Mr Harvey, but also of other unpalatable aspects of her behaviour such as violence by her on previous occasions. She agreed that no doctor had previously said the appellant was suffering from a personality disorder and that her personality is no different when she is sober from when she is drunk. Her personality disorder would still be there if she did not abuse drugs and alcohol but those things tended to accentuate her behaviour. She fulfilled all the diagnostic guidelines for emotionally unstable personality disorder. She thought the appellant's abnormality of mind arose from 'inherent causes' (see Section 2 of the Homicide Act 1957) and that her mental responsibility was substantially impaired because of the extent of her personality disorder and the length of time that she had suffered from it. She did not think the appellant was a manipulative and devious person albeit she was completely unreliable in her account of what happened. Since her conviction she had accepted responsibility for the killing in one sense, but in reality she had not.

Dr Mendelson.

Dr Mendelson's first report is dated 15 April 2003. He said that without doubt the appellant would readily be considered to have been suffering at the time from emotionally unstable personality disorder of the borderline type and that it was an abnormality of mind of a nature and degree substantially to impair her mental responsibility for the killing. However, he was unsure how this mental disorder contributed to the appellant's behaviour at the time of the killing. If he had been instructed at the time he would have tried to obtain a greater understanding of the appellant's mental state at the time of the killing.

As to the appellant's failure to recollect anything pertinent to Mr Harvey's death, Dr Mendelson said that, as she was extremely intoxicated at the time of the killing, the alcohol and drugs would have been likely to have impaired new memory registration, but there would also have been a significant contribution from psychological factors. The case was very complex and he would like to explore it further; it was likely there were specific psychological and psychiatric factors that caused her to act as she did.

Dr Mendelson's second report is dated 15 July 2003. Having seen the appellant again, and obtained some recollection of events from her up until very shortly before the killing, he concluded:

"I now consider (she) had a viable defence of diminished responsibility. I believe that her profound emotionally unstable personality disorder of a borderline type in conjunction with the secondary depression, alcoholism and especially the adverse effects of the amphetamine abuse caused the combination of mental disorder such as to substantially impair her mental responsibility for the acts and omissions in the killing."
He said that ideally he would like to have continued to see her until she was able to recall her thoughts and mental experiences during the killing. He thought the appellant's underlying personality disorder would have been the main reason why she wished to pursue what he described as "the implausible defence" rather than "a more viable defence such as diminished responsibility being considered." He thought her inability to recall the circumstances of the killing was likely to have been impaired, at least in part by substance abuse and consequent sleep deprivation.

When Dr Mendelson gave evidence he said the appellant was very difficult to interact with and consequently to gain a full appreciation of events. He put more weight on the detriment of intoxication then did Dr Bullard. Intoxication and withdrawal from amphetamine made it more likely for her to act in the way that she did. Her actions were caused by a combination of factors. He agreed that possibly, absent alcohol, her condition might not have led to the killing at all. Psychological factors were, he thought, a more likely cause of lack of memory than alcohol and drugs. He saw the alcohol and drugs as making the impairment less substantial than as viewed by Dr Bullard. However, on balance of probabilities, she was substantially impaired.

Dr Joseph

Dr Joseph produced one report dated 20 August 2004. The appellant told him she had no memory of the killing, no intention to kill and she had discovered the body the following morning. She told him that shortly after the conviction she came to the conclusion that she had killed Mr Harvey and that she had accepted this ever since. Dr Joseph observed that she did not tell this to Dr Black who undertook a psychiatric assessment at Bulwood Hall in October 1997.

Dr Joseph's view was that, if the appellant's amnesia is genuine, the reason is intoxication with alcohol and amphetamines. She does not suffer from an emotionally unstable personality disorder and the chaotic aspects of her lifestyle were due to alcohol and drug abuse. Since she has been in prison, there has been none of the behavioural or management problems to be expected from somebody suffering from emotionally unstable personality disorder. She was not, at the time of the killing, suffering from an abnormality of mind within the meaning of Section 2 of the 1957 Act. Alcohol and amphetamine caused her to behave in an aggressive and violent manner leading to Mr Harvey's death. Absent her intoxication with drugs and alcohol, the killing would not have taken place.

When he gave evidence Dr Joseph explained his opinion that a lifelong history of anxiety did not amount to an abnormality of mind and, even if it did, it had no link with the killing. Alcohol and drugs were the real problem. In response to Dr Bullard's point that the appellant had a 'full house' of symptoms of emotionally unstable personality disorder, he said diagnosis of personality disorder is a laborious process. Personality disorder is a lifelong condition and it reflects the sober personality. None of the individual criteria has been displayed by the appellant over the last ten years in prison. For example, Dr Yousef records at p.1027/8 of the medical records that she seems to be an exemplary prisoner, with no evidence of mental illness. She gets on very well with staff and inmates. She had never been a discipline problem. Cases of this kind of personality disorder are normally very difficult to manage within the prison service, with numerous episodes of self harm, emotional outbursts and aggressive behaviour. There is an intense emotional instability which does not remain hidden.

Dr Joseph pointed to evidence of the killing having been a deliberately controlled series of acts rather than a frenzied attack. There was, in his opinion, no apparent link with emotionally unstable personality disorder. Much more would need to be known about the circumstances of the killing before any link could be made.

On the issue of why the defence could not have been run at the trial and the appellant's ability to give instructions, Dr Joseph said that denial was not recognised as a particular feature of emotionally unstable personality disorder and nor was memory loss or inability to give instructions to one's advisers. It was unclear how much planning was required for the killing, but, possibly quite a lot in the light of the number of injections and the filling of syringes. Planning ahead is inconsistent with this disorder.

Dr Joseph pointed to the combination of nothing in the medical notes to suggest anyone had diagnosed emotionally unstable personality disorder and any evidence since the killing of behaviour by the appellant consistent with such a condition. Why did no one make the diagnosis? He referred to Dr Orr's report in 1986. Dr Orr is a general psychiatrist and Dr Joseph said personality disorders and substance abuse are meat and drink to general psychiatrists.

Significantly, Dr Joseph said that there is no explanation from the appellant for the killing and he found it quite extraordinary to conclude in such circumstances that her mental responsibility for it was substantially impaired. Many psychiatrists are reluctant to comment on the degree of impairment in personality disorder cases, whereas they are prepared to do so in a case of mental illness e.g. schizophrenia.

The Law

Section 2 of the Homicide Act 1957 provides:

"(1) where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering such abnormality of mind (whether arising from a condition arrested or retarded development of mind or any inherent causes or induced by decease or injury") as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) on a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder."
The defence only arises if the Crown has proved, whether by admission or otherwise, that the defendant killed the deceased with an intent to kill or to cause really serious injury.

Lord Parker CJ said in R v Byrne [1960] 2 QB 396, 403 that whether the defendant was suffering from an abnormality of mind was a question for the jury, albeit with the assistance of medical evidence.

"'Abnormality of mind'…….means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression 'mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.
Whether the accused was at the time of the killing suffering from any 'abnormality of mind' in the broad sense which we have indicted above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it."
If satisfied by the defence on balance of probabilities on that question, they then had to consider the second question whether the abnormality was such as substantially to have impaired the defendant's mental responsibility for her act in killing the deceased. Lord Parker CJ continued at 403-4:

"This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant but the question involves a decision not merely as to whether there was some impairment of the mental responsibility but whether such impairment can properly be said to be 'substantial', a matter on which juries may quite legitimately differ from doctors."
Hobhouse LJ, giving the judgment of the court in R v Arnold (1996) 31 BMLR 24, said that the questions: what was the defendant's actual state of mind at the time of the killing? did it in fact impair the defendant's responsibility for his acts? and, if so, was such impairment substantial? were all questions that had to be answered as a matter of inference from proved primary facts. He said:

"Most usually such primary facts will be proved by persons who have either observed the killing or the conduct of the defendant shortly before or after the killing. Also relevant will normally be what the defendant has said to others at the time and what account the defendant gives either in evidence or in statements put in by the Crown of his or her conduct at the material times."
The House of Lords in R v Dietschmann [2003] I AC 1209 decided that abnormality of mind does not have to be the sole cause of the defendant's acts in committing the killing. Thus it is submitted in the present case that even if alcohol/drugs played some part it would not be fatal to the appellant's defence. At paragraph 34 Lord Hutton said:

"This point is well put in Simester & Sullivan, Criminal Law Theory and Doctrine (2000), pp 580-581:
the taking of intoxicants should not disentitle D from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] responsibility… The drink does not supervene over his underlying subnormality. That underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing."
But he added that, no doubt in many cases, if the jury concluded the defendant would not have killed if he had not taken drink, they would also find that his abnormality of mind had not substantially impaired his mental responsibility for his fatal acts.

The difficulty in the present appeal arises because the defence of diminished responsibility is sought to be run for the first time many years after the killing. The appellant advanced entirely different defences at the trial, most particularly that she had not killed Mr Harvey. This court is now faced with conflicting psychiatric evidence. How is the court to deal with that evidence? The key is to be found in Section 23 of the Criminal Appeal Act 1968 which sets out criteria to which the court is to have regard in deciding whether to hear the evidence.

It was argued that it is not for this court to choose between distinguished experts, each of whose evidence is credible on the issue of diminished responsibility. In other words it is not for us to decide what evidence we accept and what evidence we reject. We were referred to R v Martin [2002] 1 Cr App R 323. That was the case of the Norfolk farmer who was convicted of the murder of one of two men who were burgling his farmhouse. His conviction of murder was reduced to manslaughter on the grounds of diminished responsibility Lord Woolf CJ said at paragraph 60:

"We heard oral evidence from each of these distinguished experts who confirmed the opinions set out in their reports, summarised above. It is unnecessary for the purposes of this judgment to go into further detail of their evidence. The court is not required to choose between their respective opinions on the issue of diminished responsibility. The question is whether the evidence of Dr Joseph (the same Dr Joseph who gave evidence for the Crown in the present case) and Miss Craissati is credible. Plainly it is. The Crown, do not seek to argue otherwise. Their evidence was not available at the trial. There is a reasonable explanation for it not being called, namely the negative terms of Dr Maden's report. Accordingly, Mr Martin is entitled to rely on the evidence of Dr Joseph and Miss Craissati."
But there is a very material distinction between the circumstances in Martin and those in the present case. Here there is a very important issue why the evidence of Dr Bullard and Dr Mendelson was not called at the trial. Central to that issue is whether, as the appellant submits, her abnormality of mind was the very reason why diminished responsibility was not run at the time by the defence. There is strongly disputed psychiatric evidence on this issue which it has been impossible to resolve without considering the psychiatric evidence as a whole. Accordingly we have looked with some care at all of the psychiatric evidence in order to decide whether there is a reasonable explanation for the failure to adduce the evidence at the trial.

The Court of Appeal has on a number of occasions been faced with the problem of whether to accept fresh evidence to support a defence of diminished responsibility that was not advanced at the trial. Martin is an example; R v Ahluwalia (1993) 96 Cr App R 133, R v Straw [1995] 1 All ER 187, R v Jones (1997) 1 Cr App R 86, R v Borthwick [1998] Crim LR 274, R v Weekes [1999] 2 Cr App R 520 and R v Sharp [2003] EWCA Crim 3870 are others. The difficulty for the court is the tension between the principle that there should be one trial only and that all available defences should be advanced at it and the statutory requirement under Section 2 of the Criminal Appeal Act 1968, as amended, that an unsafe conviction should not be allowed to stand.

In Ahluwalia Lord Taylor CJ, giving the judgment of the court, said at p.142:

"Turning to the third ground of appeal, we consider Mr Robertson is on stronger ground. This is in relation to diminished responsibility, an issue not raised at all at the trial. In view of our conclusion, we propose to say the minimum necessary to explain the course we propose to take.
There has been put before this court a significant number of reports of a psychiatric and similar nature, most of them obtained only recently. These express the opinion that at the time of the killing, the appellant's mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957.
Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth.
Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism."
The court did, however, in that case receive the evidence and order a retrial

In Arnold Hobhouse LJ said:

"Whether the trial be civil or criminal, parties must be required as a matter of the administration of justice to present their case at the trial and not be permitted, one case having failed, to run a different and inconsistent case in a appellate court based on different evidence. These considerations apply equally to the crime of murder and the statutory defence of diminished responsibility."
But he went on to point out that very exceptionally these considerations were not conclusive. He went on:

"It is thus possible for the Court of Appeal to receive fresh evidence after a defendant has deliberately not run a particular defence at trial and even where his predicament has arisen from him having told lies at an earlier stage."
However, the burden of proving diminished responsibility lies on the defence, and the defendant must prove "some proper and viable evidential basis for the defence before it can be submitted that the conviction for murder was unsafe."

Sharp was an appeal referred to the Court of Appeal by the Criminal Cases Review Commission. Buxton LJ at paragraph 25 cited Hobhouse LJ in Arnold:

"It is not fatal to an appellant's application that the court receive new evidence that the issue to which it is relevant was not raised at the trail; however, it remains a factor to be taken into consideration. Ultimately, the most important consideration must always be whether the proffered evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interest of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was made unsafe."
Buxton LJ referred to two principles. The first is that facts establishing innocence should not be excluded because of a previous mistaken decision by the appellant or by his advisers. The second is that it is not open to appellant's to choose not to run a defence at trial and then go back on that decision at the appeal. He pointed out that the second principle was very clearly stated by Lord Bingham CJ in R v Campbell [1997] 1 Cr App R 492 where he said:

"This Court has repeatedly underlined the necessity for defendants in criminal trials to advance their full defence before the jury and call any necessary evidence at that stage. It is not permissible to advance one defence before the jury and when that has failed, to devise a new defence, perhaps many years later, and then seek to raise the defence on appeal."
Buxton LJ then went on to investigate why the defence of diminished responsibility had not been run at the trial. After considering various authorities he drew from them the following guidance at paragraph 32.

i) The inhibition on running a different defence on appeal is not limited to cases where the original decision was in some way dishonest, or manipulative or one of purely tactics.

ii) The second defence can only be adduced in very exceptional cases.

iii) That will normally only be in cases where, as indicated by Schiemann LJ in Weekes, the original evidence was available at the trial.

iv) 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 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.
What Schiemann LJ had said in Weekes at 529F was:

"Lastly, although as Borthwick shows, an exceptional case may arise, we think it much less likely that it will be in the interest of justice to admit evidence of diminished responsibility which comes into existence only after the trial, rather than was unanimous and undisputed at the time of trial. The former case is, we think, likely to founder on the principle explained in Jones (Stephen), and in Ahluwalia. "
Discussion.

The appellant faces the following difficulties. The defence of diminished responsibility is raised for the first time years after the trial. The evidence that is now sought to be admitted is both challenged and controversial. The defence at the trial did not run diminished responsibility because they had no evidence to support such a defence and in any event to run such a partial defence to murder (in respect of which the burden of proof is on the defence) was likely to be detrimental to the appellant's main defence which, if successful, would have resulted in her acquittal. Mr Tim Owen Q.C, who has appeared before us for the appellant, argues that the basis for the defence was available at trial in the form of the appellant's medical notes; it is simply that no psychiatrist was instructed to consider them. It is the experience of this court that in cases where the abnormality of mind is said to arise from a personality disorder there is very frequently strongly disputed psychiatric evidence. We note Dr Bullard's comment that it is often very difficult to persuade juries of diminished responsibility in such cases. First if Dr Bullard has been instructed to produce a report for the trial it is highly probable that the prosecution would have answered it on the lines of the report from Dr Joseph. It seems to us entirely speculative whether diminished responsibility would, even with a favourable report from Dr Bullard, have been run at the trial, particularly if the appellant had maintained her instructions to her lawyers of her recollection of events. The defence team would have had in mind that the findings of an abnormality of mind had, in the end, to be made as a matter of inference from proved facts.

It seems to us that the most critical consideration is whether the appellant's amnesia about the circumstances of the killing is in truth a manifestation of her abnormality of mind. Resolution of this issue goes a long way towards determining whether there is a reasonable explanation for the defence not having been run at the trial.

We have come to the conclusion that we prefer the evidence of Dr Joseph on this issue. We do so for the following reasons. First, the appellant has not been consistent throughout in her lack of recollection or denial. Second, denial is not a documented feature of an emotionally unstable personality disorder and third there are more obvious explanations for the lack of recollection/denial than that it is a manifestation of her mental condition. These are (i) that she is not telling the truth and (ii) the effect of alcohol and or amphetamine.

We recite briefly the chronology to illustrate the changing picture given by the appellant. She discovered Mr Harvey's body at 8.30 am. At 8.35 am she telephoned her husband but spoke to Andrew saying, "I've killed Norman", (albeit she denied in evidence that she had said this). At 8.51 am she told police officers who arrived at the deceased's flat: "I just found him there". At 11.30 am she provided a witness statement about events on the previous day and included the fact that Andrew had visited her in the early evening. However, she failed to mention that anything untoward had happened and suggested Mr Harvey was asleep from 5.30 pm onwards. She told the police that another man, Kevin Miller, had a grudge against Mr Harvey and had attacked him two weeks before his death, the plain implication being that Miller may have been responsible for the killing. At 2.55 pm when arrested and cautioned she said: "I did not kill him." On being booked in at the custody desk she said: "I wouldn't murder the old boy, I've saved him when he has been in a coma before." Later in the afternoon when the appellant was in a cell, notes were made of her comments. Some of the comments suggested the appellant was angry with Mr Harvey for abusing her daughter and making a comment about her mother, but most of the comments comprised musings over her son having injected Mr Harvey. The Crown suggested these were consistent with the germ of an idea that this might be her defence. The following day the appellant was examined by a doctor. She did not suggest she was so intoxicated by drink or drugs that she could not remember what had happened; indeed, she did not admit to having taken alcohol or amphetamines. When interviewed she declined to comment save to say, "I don't want to because I don't want to put myself in a position," and later, "I've been so miserable all my life, I can't get my thoughts together at the moment." At the trial the appellant's evidence was that she had some recollection of the day in question but none of the time at which Mr Harvey was injected.

Thus the appellant first of all admitted to her son Andrew that she had killed Mr Harvey and then at different stages said various things, before eventually saying she had no recollection of the critical time. The Crown say, with some force, that the history of what she said after the killing has the hallmarks of someone trying to avoid responsibility and to find an explanation leading to acquittal and that this is entirely inconsistent with someone forced by her medical condition into having no recollection of the material events. Dr Bullard said she did not think the appellant was devious and manipulative, but the appellant has adopted various different stances and Dr Bullard's view was necessarily a personal one rather than a medical one. We did not receive any convincing explanation from Dr Bullard or Dr Mendelson as to how these inconsistencies in the appellant's account fitted with her lack of recollection/denial being a manifestation of the disorder.

There is inevitably a tension in the interests of justice test between the statutory requirement that an appeal must be allowed where a conviction is unsafe and the principle that a defendant cannot run one defence at his trial in the belief that if it fails he will be allowed a second opportunity to run a different defence. In Arnold Hobhouse LJ observed that while it was not fatal to an application to the court to receive fresh evidence that the issue to which it is relevant was not raised at the trial, it remains a factor to be taken into account. Similarly the court must consider what, if any reasonable explanation there is for the failure to adduce the evidence of the trial. But he added:

"Ultimately the most important consideration must always be whether the ………….. evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interests of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was unsafe."
Our conclusions.

The critical feature about the present case is that it is not established that the reason the appellant failed to run diminished responsibility at the trial was all part and parcel of her abnormality of mind ­ a manifestation of the condition that would have given rise to that defence. Absent proof of that, there is no reasonable explanation for failing to adduce the material psychiatric evidence at the trial. Leading and junior counsel gave careful consideration as to how the defence case should be run. There was no reason to suppose that a viable defence of diminished responsibility could be advanced and in any event they had good reason for running the defences that they did which (a) reflected their client's instructions and (b) if successful, would have resulted in the acquittal of the appellant. Diminished responsibility, we emphasise, is a defence that requires proof by the defence, and is only a partial defence to murder, reducing it to manslaughter. Nor should it be overlooked that with diminished responsibility, although psychiatric evidence is adduced to assist the jury, the decision on the critical questions is that of the jury. As Dr Bullard pointed out, it is notoriously difficult to persuade juries that personality disorder amounts to an abnormality of mind. Not least of the other matters which the jury would have to have had in mind, even with the benefit of psychiatric evidence, would have been the appellant's inconsistencies of account and recollection of the material events.

We have accordingly decided not to admit the fresh psychiatric evidence of Dr Bullard, Dr Mendelson and Dr Joseph save for the purpose of deciding whether there is a reasonable explanation for the failure to adduce the evidence at the trial. There is no reasonable explanation for failing to adduce the evidence of diminished responsibility at the trial. In these circumstances, and after applying the four criteria in Section 23(2), we do not think the 'interests of justice' test is met. We emphasise that this is a decision that ultimately turns on the facts of the particular case.

There is a further ground of appeal with which it is necessary to deal briefly. Provocation was not raised at the trial or on the first appeal. Nor was the case referred to us by the Criminal Case Review Commission on this basis. Mr Owen realistically accepts that, if he cannot persuade us to admit the evidence of Dr Bullard and Dr Mendelson on the question of diminished responsibility, he cannot succeed on provocation. On the other hand, he submits that, if it is in the interests of justice to admit the evidence, then it is relevant to provocation as well as to diminished responsibility. Since the conclusion of the argument the Privy Council has decided the appeal of H.M Attorney General for Jersey v Holley (Privy Council Appeal No3 of 2004). In which the Judicial Committee by a majority of six to three followed the minority opinion of the House of Lords in R v Smith (Morgan) [2001] IAC 146. The effect of this decision has been to tighten the second, or objective, test for provocation by limiting the characteristics of the defendant with which the reasonable man may be clothed. No longer is the test, as propounded by Lord Hoffmann in Morgan Smith, one of excusability. This would have been an additional hurdle for the appellant, but in the event is not relevant because of the conclusion we have reached on the psychiatric evidence.

In our judgment the conviction is safe and therefore the appeal must be dismissed. As we hope is obvious from this judgment, it was however entirely appropriate for the Criminal Cases Review Commission to have referred this case to the Court of Appeal in the light of the fresh material that they had.

Viv x

Lord Justice Scott Baker:

Background


Susan Shickle appeals against her conviction for the murder of Norman Harvey. The case has been referred to us by the Criminal Cases Review Commission. We are invited to consider fresh evidence, the purpose of which is to show that the appellant had a viable defence of diminished responsibility that was never put before the jury and that therefore the conviction for murder is unsafe.

The killing took place over nine years ago, on 2 May 1996, and the appellant was convicted in the Crown Court at Oxford on 25 February 1997 before Latham J, as he then was, and a jury. The appellant's appeal to the Court of Appeal was dismissed on 15 July 1997.

The victim was a sixty eight year old diabetic with whom the appellant had a long standing and complex relationship. He had first come into her life when she was 9 years old. She used his flat as a haven from time to time when she was without accommodation. On a large number of occasions she had provided help for him when he ran into difficulties with his diabetes, which he was not very good at managing. Her history is, in summary, that she was born in September 1960 and was therefore aged 35 at the time of the killing. She had a boy of 13, Andrew, who was a key prosecution witness. He lived with his step father, Steven Shickle, in Banbury. The appellant had two other children, both girls, by Steven Shickle and they too lived with him. He and the appellant parted in August 1994 when he left, taking the children with him. There was subsequently a divorce. At the end of 1995 the appellant began to live with a man called Mark Nash in a flat owned by a neighbour of Mr Harvey's called Wickham. On 22 April 1996 there was a quarrel between the appellant and Wickham and she and Nash were evicted. They moved into Mr Harvey's flat.

The prosecution relied upon the evidence of Andrew Shickle and William Tibbert. They had attended Mr Harvey's address in order to visit the appellant, arriving about 6pm. Shortly after Andrew and William arrived, Mr Harvey returned home. On his return the appellant asked Mr Harvey if he would go to the shops to buy some bread and cider for her. Although Mr Harvey agreed to go, he informed her that the shop would not sell him alcohol. The appellant told him to stop being so silly, at which Mr Harvey lent over to her and asked her where her mother was. This upset the appellant as Mr Harvey knew that her mother was dead. She became abusive towards Mr Harvey, pushed him into the bedroom and punched him.

When the appellant grabbed a knife Andrew intervened in an attempt to stop her. At this the appellant turned to him and said: "just think of what he did to your little sister" (allegations had been made in 1992 that Mr Harvey had indecently assaulted Andrew's sister, but a prosecution was not ever brought). The appellant discarded the knife and proceeded to search for a syringe. On finding one she filled it full of insulin and stabbed it into Mr Harvey's leg. The appellant repeated this process with two further syringes. Andrew stated that during this time the appellant was saying words such as, "I am going to kill him." The prosecution called expert evidence that the cause of death was an overdose of insulin.

Andrew's friends, Danny Cowley and Cristian Fannon, testified that when they arrived at the flat Andrew came outside and told them something along the lines of, "My mum's gone mad, she is going to kill him. She's injecting him with insulin". They then entered the flat and witnessed the appellant administer the second and third injections. Andrew and his friends left sometime after the third injection and went to Nicholas Lambrianou's house in order to find the appellant's boyfriend, Mark Nash. On finding Mr Nash, Andrew informed him, in the presence of Mr Lambrianou, of what had occurred. After the attack Mr Harvey went to bed. The appellant discovered Mr Harvey's body in bed the following morning.

The death was not initially treated as suspicious and the police obtained a witness statement from the appellant. She stated that Andrew had arrived about 7pm and stayed for about an hour, but Mr Harvey had gone to bed prior to Andrew's visit. About 9pm her boyfriend, Mark Nash, arrived at the flat and they both left at 10.30pm in order to purchase some food, returning shortly afterwards. They went to bed about midnight, and nothing untoward happened that evening. She awoke about 8.15am and discovered Mr Harvey's body.

When the appellant was arrested the police decided she was not fit to be interviewed and, owing to her condition, she was placed in a cell with a police officer. Whilst in the cell the appellant started to talk about what had occurred the previous evening. In essence she said it was Andrew who had injected Mr Harvey with the insulin. When the appellant was eventually interviewed by the police she answered, in effect, no comment.

The defence case was, and the appellant gave evidence to this effect at the trial, that Mr Harvey had previously abused her daughter Emma and had also raped the appellant. She asserted that she nevertheless had no animosity towards him. However, she thought that Andrew did not like him. Her evidence about the period leading up to Mr Harvey's death was that her recollection was quite clear until 5.45pm when she took some 'speed', alcohol and other drugs. After this she could not remember much, other than that there had been an argument about getting some food. She did not remember attacking Mr Harvey, but stated that, if she had injected him, she would have remembered it. She recollected Andrew leaving the flat and Mark arriving later on in the evening and their going to the shops to get some food. Her next memory was finding Mr Harvey the following morning.

The defence also adduced expert evidence regarding the cause of death, challenging the prosecution case. In summary, the contention was that, in itself, insulin is not a toxic substance but if administered in excess it leads to hypoglycaemia. If untreated, this in turn results in coma rather than death. Mr Harvey's general practitioner testified that owing to Mr Harvey's frail state death could have occurred at any time, most likely from heart failure.

The main thrust of the appeal that was subsequently heard by the Court of Appeal was that the judge had erred in ruling that the evidence of Messers Lambrianou, Fannon and Cowley as to the comments of Andrew was properly treated as part of the res gestae in the case. The Court of Appeal agreed with the judge that this evidence was admissible following R v Andrews [1987] AC 281. The court thought there had been a misdirection on intent but concluded that it had no bearing whatsoever on the safety of the conviction.

Why was diminished responsibility not run at the trial?

We have a note from leading and junior counsel, Mr Michael Austin-Smith Q.C and Mr Simon Davis, who represented the appellant at the trial. The appellant's instructions were that at the material time she was under the influence of drink and/or drugs and had no memory of events. She had neither wished to harm the deceased nor had any memory of doing so. The account given by Andrew and his friends must have been fabricated, alternatively Andrew had totally misunderstood the situation. She could not recall having administered any injection, although it was possible she may have administered one if she was under the impression Mr Harvey was in a state of confusion preceding an attack.

The defence had the benefit of assistance from a consultant toxicologist and a consultant pathologist. Their advice was that there were substantial difficulties in establishing the cause of death in cases involving an allegation of murder by injection of insulin, because insulin itself is not toxic and usually, if administered in overdose, results in hypoglycaemia, which, if not treated promptly, leads to irreversible coma rather than death. Death, when it does follow, is thought to be caused by a reduction in potassium levels leading to heart failure or to brain damage caused by glycogen deficiency. There was also the general practitioner's evidence (called by the prosecution) that the deceased's frail state was such that death could have occurred at any time from natural causes. It was also going to be very difficult for the prosecution to establish that the level of insulin in the deceased's body at the time of death exceeded the therapeutic dose. This was because the rapid degradation and dispersal of insulin and its breakdown products made accurate calculations of post-mortem levels, from post-mortem findings, notoriously difficult to achieve.

The scientific and pathological evidence available to the defence suggested that it was possible there had not been an insulin overdose and that, if there had been, it was not the cause of death. Also, there may only have been one injection site rather than the several alleged by the prosecution.

The defence had two psychiatric reports. Neither suggested an abnormality of mind so as substantially to diminish the appellant's responsibility. One, from Dr Bullard, dated 20 June 1996 (prepared for a bail application), of which more later, said there was no evidence the appellant was suffering from mental illness but she did have a long standing personality disorder associated with a chaotic lifestyle. She had a long history of alcohol and substance abuse. The other was from a prison psychiatrist who rejected any suggestion of mental illness.

The defence team was faced with a defendant whose case was that she had not administered the fatal dose of insulin. There was a real issue about the cause of death and, assuming the prosecution was able to prove homicide, whether it was the appellant who injected the fatal dose or doses into Mr Harvey's body. An accidental overdose by the defendant was another possibility, bearing in mind she accepted she might have injected him once if he appeared to need insulin.

None of these defences lay easily with the defence of diminished responsibility which predicates an acceptance of responsibility for causing death along with the appropriate intent, coupled with the burden of proving that the responsibility was substantially diminished by abnormality of mind.

Further, the psychiatric reports to which the defence had access said nothing to suggest there was any realistic basis for diminished responsibility. There was no indication that the appellant's heavy drinking had led to brain damage or that alcoholism had led to abnormality of mind. Counsel described her as lucid, presentable and, at least to the layman, devoid of any manifestation of abnormality of mind. There was no basis for thinking that the personality disorder identified by Dr Bullard, in her psychiatric report prepared for the bail application, could form the basis for a compelling case of diminished responsibility. The evidence to support diminished responsibility was described by counsel as at best weak and probably, more realistically, non- existent. We shall refer to all the psychiatric evidence in more detail later.

Counsel's note concludes as follows:

"It was our judgment that we could not risk running a weak diminished responsibility argument as yet another further alternative. Had there been any evidence to support diminished responsibility we might have been forced to take a different view but, as it was, neither our psychiatrist nor the psychiatrist instructed by the prison service found support for such a conclusion. Thus, absent any medical evidence to suggest that the defendant's responsibility was diminished at the material time, we felt that the only viable proposition was to run the case as we did."
We find this conclusion entirely understandable. Indeed it is difficult to see how responsible counsel could have reached any different conclusion. Nevertheless, the problem remains of how to deal with the situation in which there would have been available at the trial a viable defence of diminished responsibility if the appropriate psychiatrists had been approached.

The fundamental question for the court is whether the conviction for murder is safe. The appellant seeks the leave of the court to call fresh evidence to show that the conviction is not safe. That evidence comes from two psychiatrists, Dr Bullard and Dr Mendelson. Its purpose is to show that the appellant did have a viable defence of diminished responsibility under section 2 of the Homicide Act 1957. The prosecution have evidence from a third psychiatrist, Dr Joseph, to contrary effect. Each of the three is a psychiatrist of experience and eminence. The prosecution submit that, if the court considers fresh evidence from Dr Bullard and Dr Mendelson, it should also consider the fresh evidence of Dr Joseph.

Section 23(1) of the Criminal Act 1968 gives the court a discretion, if it thinks it necessary or expedient in the interests of justice, to receive any evidence not adduced at the trial. Section 23(2) requires the court in considering whether to hear any such evidence to have regard in particular to:

a) whether the evidence appears to the court to be capable of belief;
b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;
c) whether the evidence would have been admissible in the proceedings from which the appeal lies on any issue which is the subject of the appeal;
d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
In the present case the first and third criteria are plainly met. The submissions on the appeal have focused on the second and fourth criteria, i.e. whether the fresh evidence might afford a ground for allowing the appeal and whether there is a reasonable explanation for not having adduced it at the trial.

Having read the reports of the three psychiatrists we decided to hear their evidence de bene esse before making a formal decision whether to receive their evidence under Section 23. Each of the three psychiatrists has therefore given evidence before us and been cross-examined.

Dr Bullard

The court heard oral evidence from Dr Henrietta Bullard, who also produced three reports for the purposes of the appeal dated 24 February 2004, 18 March 2004 and 12 May 2005. Additionally the court had her report dated 20 June 1996 prepared for the bail application before the trial.

In her report of June 1996 Dr Bullard recorded that the appellant's medical notes were not yet available but that she had had treatment for agoraphobia at the Elms Clinic and treatment at the Ley Clinic. She was not suffering from mental illness but did have a long standing personality disorder associated with a chaotic lifestyle, with difficulties in relationships and problems resulting from her addiction to alcohol and drugs. She was about three months pregnant at the time of that report. Dr Bullard reported no abnormality in her cognitive functioning. There is no suggestion in this report of the possibility of a defence of diminished responsibility. Dr Bullard's response, when asked about this, was that she was only instructed on a bail application and did not have access to the appellant's notes or to the depositions. It would not have been possible, she said, to make any comment about diminished responsibility at that stage, even had she been asked to do so. In our view, such contemporaneous medical evidence as there is is of some importance for two reasons: first the court has to consider the appellant's mental state at the time of the killing and second it is relevant to look at what medical evidence was or might have been available to the defence team. Other contemporaneous medical evidence includes a report from Dr Nkwam, a prison medical officer, dated 11 November 1996 prepared for the Oxfordshire Local Authority in relation to the then unborn child. That report was based on several interviews with the appellant and ante-natal consultations from 6 May 1996, the date on which the appellant was remanded in custody. Dr Nkwam described her as a "young physically health lady with no overt signs of mental illness." There is also a report from Dr Michael Orr, a consultant psychiatrist prepared 10 years earlier in September 1986. He had access to the appellant's psychiatric case notes from 1976 and the report was based on an interview at the Elms Clinic on 16 September 1986. Whilst the report was made in relation to custody proceedings, again it is relevant to note that there is no reference to mental illness or personality disorder.

Also, there is a report from Dr Browne, visiting consultant psychiatrist to HM Prison Holloway dated 25 February 1997. This report refers to a report by Dr Franciosi, dated 23 October 1996, which we have not seen, and also to the report by Dr Nkwam. Dr Browne found no evidence of illness in the clinical or formal sense. The appellant was normal in manner and behaviour and able to give a good account of herself. She was not mentally ill. Her past history would not support a diagnosis of personality disorder/ psychopathy. However, Dr Browne concluded with the words:

"I understand that she is denying her guilt for the offence so it is not possible to put forward any possible psychological/psychiatric explanation for it."
When Dr Bullard examined the appellant in February 2004 the appellant said she could not remember the killing and still had only a vague recollection of the day of the offence. Dr Bullard concluded that the appellant suffered from an emotionally unstable personality disorder which she described as "severe". She had characteristics of both the impulsive and borderline types of personality disorder. She said emotionally unstable personality disorders are serious mental disorders and the appellant had had disabling symptoms since the age of thirteen. This was, in her opinion, an abnormality of mind due to inherent causes which substantially impaired her mental responsibility for her acts in doing the killing.

In that report Dr Bullard criticised the reports of Dr Browne and Dr Nkwam for not mentioning diminished responsibility and questioned what their instructions were. She concluded by saying it was difficult to persuade juries that personality disorders are serious mental disorders but in this case there was well documented psychiatric evidence and medical history to provide evidence for this defence.

In her second report of 18 March 2004 Dr Bullard described the killing as a domestic one and said "diminished responsibility must be the most plausible defence for a woman with her psychiatric and social background." She said it was unfortunate that the defence had failed to uncover the extensive medical and psychiatric records from hospitals attended by the appellant since the age of fourteen. Had they done so, however, they would nowhere have found any diagnosis that the appellant was suffering from a personality disorder.

Dr Bullard's analysis was that the appellant had 'forgotten' the period during which she injected Mr Harvey with insulin. Dr Bullard said this type of loss of memory is selective and that the suppression of memory was not under the control of her will. Accordingly, she would, when instructing her counsel, have glossed over the unpleasant parts of her life and emphasised those parts which depicted her as a tormented and persecuted victim. This explained why she ran the defence that she did, claiming she had no intention to harm the deceased despite what he had done to her and her daughter. Thus, her failure to instruct her lawyers properly was due to, or significantly contributed to, by her abnormality of mind. She had an overwhelming tendency to deny issues that caused her emotional distress. Denial was not a wilful process but one governed by psychological forces designed to protect the individual from disintegration and fragmentation. This was the reason for loss of memory rather than a failure of registration due to extreme intoxication.

In essence the case in this. The very condition from which the appellant was suffering effectively prevented her from admitting her culpability and providing details of her troubled past to her lawyers. Her psychiatric condition effectively removed the possibility of putting the issue of diminished responsibility before the court, as it caused her to maintain she was not involved with Mr Harvey's death.

Dr Bullard's final report is dated 12 May 2005. This report adds little to her earlier expressed opinions and deals largely with points made by Dr Joseph. In particular it refutes his conclusion that the killing would not have occurred if the appellant had not been intoxicated with amphetamine and alcohol at the material time. In it she also seeks to answer Dr Joseph's point that a diagnosis of long standing emotionally unstable personality disorder does not lie easily with the absence of overt evidence of it during the time the appellant has been in prison.

When Dr Bullard gave evidence before us it became clear that she feels strongly that diminished responsibility is an obvious defence in what she described as "domestic killings" and that it is often overlooked because of a failure to elicit psychiatric history that would show a severe personality disorder. She did, however, observe at the conclusion of her first report that, "it is difficult to persuade juries that personality disorders are serious mental disorders."

Dr Bullard emphasised that in her opinion denial is an aspect of the illness, not just denial of what she did to kill Mr Harvey, but also of other unpalatable aspects of her behaviour such as violence by her on previous occasions. She agreed that no doctor had previously said the appellant was suffering from a personality disorder and that her personality is no different when she is sober from when she is drunk. Her personality disorder would still be there if she did not abuse drugs and alcohol but those things tended to accentuate her behaviour. She fulfilled all the diagnostic guidelines for emotionally unstable personality disorder. She thought the appellant's abnormality of mind arose from 'inherent causes' (see Section 2 of the Homicide Act 1957) and that her mental responsibility was substantially impaired because of the extent of her personality disorder and the length of time that she had suffered from it. She did not think the appellant was a manipulative and devious person albeit she was completely unreliable in her account of what happened. Since her conviction she had accepted responsibility for the killing in one sense, but in reality she had not.

Dr Mendelson.

Dr Mendelson's first report is dated 15 April 2003. He said that without doubt the appellant would readily be considered to have been suffering at the time from emotionally unstable personality disorder of the borderline type and that it was an abnormality of mind of a nature and degree substantially to impair her mental responsibility for the killing. However, he was unsure how this mental disorder contributed to the appellant's behaviour at the time of the killing. If he had been instructed at the time he would have tried to obtain a greater understanding of the appellant's mental state at the time of the killing.

As to the appellant's failure to recollect anything pertinent to Mr Harvey's death, Dr Mendelson said that, as she was extremely intoxicated at the time of the killing, the alcohol and drugs would have been likely to have impaired new memory registration, but there would also have been a significant contribution from psychological factors. The case was very complex and he would like to explore it further; it was likely there were specific psychological and psychiatric factors that caused her to act as she did.

Dr Mendelson's second report is dated 15 July 2003. Having seen the appellant again, and obtained some recollection of events from her up until very shortly before the killing, he concluded:

"I now consider (she) had a viable defence of diminished responsibility. I believe that her profound emotionally unstable personality disorder of a borderline type in conjunction with the secondary depression, alcoholism and especially the adverse effects of the amphetamine abuse caused the combination of mental disorder such as to substantially impair her mental responsibility for the acts and omissions in the killing."
He said that ideally he would like to have continued to see her until she was able to recall her thoughts and mental experiences during the killing. He thought the appellant's underlying personality disorder would have been the main reason why she wished to pursue what he described as "the implausible defence" rather than "a more viable defence such as diminished responsibility being considered." He thought her inability to recall the circumstances of the killing was likely to have been impaired, at least in part by substance abuse and consequent sleep deprivation.

When Dr Mendelson gave evidence he said the appellant was very difficult to interact with and consequently to gain a full appreciation of events. He put more weight on the detriment of intoxication then did Dr Bullard. Intoxication and withdrawal from amphetamine made it more likely for her to act in the way that she did. Her actions were caused by a combination of factors. He agreed that possibly, absent alcohol, her condition might not have led to the killing at all. Psychological factors were, he thought, a more likely cause of lack of memory than alcohol and drugs. He saw the alcohol and drugs as making the impairment less substantial than as viewed by Dr Bullard. However, on balance of probabilities, she was substantially impaired.

Dr Joseph

Dr Joseph produced one report dated 20 August 2004. The appellant told him she had no memory of the killing, no intention to kill and she had discovered the body the following morning. She told him that shortly after the conviction she came to the conclusion that she had killed Mr Harvey and that she had accepted this ever since. Dr Joseph observed that she did not tell this to Dr Black who undertook a psychiatric assessment at Bulwood Hall in October 1997.

Dr Joseph's view was that, if the appellant's amnesia is genuine, the reason is intoxication with alcohol and amphetamines. She does not suffer from an emotionally unstable personality disorder and the chaotic aspects of her lifestyle were due to alcohol and drug abuse. Since she has been in prison, there has been none of the behavioural or management problems to be expected from somebody suffering from emotionally unstable personality disorder. She was not, at the time of the killing, suffering from an abnormality of mind within the meaning of Section 2 of the 1957 Act. Alcohol and amphetamine caused her to behave in an aggressive and violent manner leading to Mr Harvey's death. Absent her intoxication with drugs and alcohol, the killing would not have taken place.

When he gave evidence Dr Joseph explained his opinion that a lifelong history of anxiety did not amount to an abnormality of mind and, even if it did, it had no link with the killing. Alcohol and drugs were the real problem. In response to Dr Bullard's point that the appellant had a 'full house' of symptoms of emotionally unstable personality disorder, he said diagnosis of personality disorder is a laborious process. Personality disorder is a lifelong condition and it reflects the sober personality. None of the individual criteria has been displayed by the appellant over the last ten years in prison. For example, Dr Yousef records at p.1027/8 of the medical records that she seems to be an exemplary prisoner, with no evidence of mental illness. She gets on very well with staff and inmates. She had never been a discipline problem. Cases of this kind of personality disorder are normally very difficult to manage within the prison service, with numerous episodes of self harm, emotional outbursts and aggressive behaviour. There is an intense emotional instability which does not remain hidden.

Dr Joseph pointed to evidence of the killing having been a deliberately controlled series of acts rather than a frenzied attack. There was, in his opinion, no apparent link with emotionally unstable personality disorder. Much more would need to be known about the circumstances of the killing before any link could be made.

On the issue of why the defence could not have been run at the trial and the appellant's ability to give instructions, Dr Joseph said that denial was not recognised as a particular feature of emotionally unstable personality disorder and nor was memory loss or inability to give instructions to one's advisers. It was unclear how much planning was required for the killing, but, possibly quite a lot in the light of the number of injections and the filling of syringes. Planning ahead is inconsistent with this disorder.

Dr Joseph pointed to the combination of nothing in the medical notes to suggest anyone had diagnosed emotionally unstable personality disorder and any evidence since the killing of behaviour by the appellant consistent with such a condition. Why did no one make the diagnosis? He referred to Dr Orr's report in 1986. Dr Orr is a general psychiatrist and Dr Joseph said personality disorders and substance abuse are meat and drink to general psychiatrists.

Significantly, Dr Joseph said that there is no explanation from the appellant for the killing and he found it quite extraordinary to conclude in such circumstances that her mental responsibility for it was substantially impaired. Many psychiatrists are reluctant to comment on the degree of impairment in personality disorder cases, whereas they are prepared to do so in a case of mental illness e.g. schizophrenia.

The Law

Section 2 of the Homicide Act 1957 provides:

"(1) where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering such abnormality of mind (whether arising from a condition arrested or retarded development of mind or any inherent causes or induced by decease or injury") as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) on a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder."
The defence only arises if the Crown has proved, whether by admission or otherwise, that the defendant killed the deceased with an intent to kill or to cause really serious injury.

Lord Parker CJ said in R v Byrne [1960] 2 QB 396, 403 that whether the defendant was suffering from an abnormality of mind was a question for the jury, albeit with the assistance of medical evidence.

"'Abnormality of mind'…….means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression 'mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.
Whether the accused was at the time of the killing suffering from any 'abnormality of mind' in the broad sense which we have indicted above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it."
If satisfied by the defence on balance of probabilities on that question, they then had to consider the second question whether the abnormality was such as substantially to have impaired the defendant's mental responsibility for her act in killing the deceased. Lord Parker CJ continued at 403-4:

"This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant but the question involves a decision not merely as to whether there was some impairment of the mental responsibility but whether such impairment can properly be said to be 'substantial', a matter on which juries may quite legitimately differ from doctors."
Hobhouse LJ, giving the judgment of the court in R v Arnold (1996) 31 BMLR 24, said that the questions: what was the defendant's actual state of mind at the time of the killing? did it in fact impair the defendant's responsibility for his acts? and, if so, was such impairment substantial? were all questions that had to be answered as a matter of inference from proved primary facts. He said:

"Most usually such primary facts will be proved by persons who have either observed the killing or the conduct of the defendant shortly before or after the killing. Also relevant will normally be what the defendant has said to others at the time and what account the defendant gives either in evidence or in statements put in by the Crown of his or her conduct at the material times."
The House of Lords in R v Dietschmann [2003] I AC 1209 decided that abnormality of mind does not have to be the sole cause of the defendant's acts in committing the killing. Thus it is submitted in the present case that even if alcohol/drugs played some part it would not be fatal to the appellant's defence. At paragraph 34 Lord Hutton said:

"This point is well put in Simester & Sullivan, Criminal Law Theory and Doctrine (2000), pp 580-581:
the taking of intoxicants should not disentitle D from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] responsibility… The drink does not supervene over his underlying subnormality. That underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing."
But he added that, no doubt in many cases, if the jury concluded the defendant would not have killed if he had not taken drink, they would also find that his abnormality of mind had not substantially impaired his mental responsibility for his fatal acts.

The difficulty in the present appeal arises because the defence of diminished responsibility is sought to be run for the first time many years after the killing. The appellant advanced entirely different defences at the trial, most particularly that she had not killed Mr Harvey. This court is now faced with conflicting psychiatric evidence. How is the court to deal with that evidence? The key is to be found in Section 23 of the Criminal Appeal Act 1968 which sets out criteria to which the court is to have regard in deciding whether to hear the evidence.

It was argued that it is not for this court to choose between distinguished experts, each of whose evidence is credible on the issue of diminished responsibility. In other words it is not for us to decide what evidence we accept and what evidence we reject. We were referred to R v Martin [2002] 1 Cr App R 323. That was the case of the Norfolk farmer who was convicted of the murder of one of two men who were burgling his farmhouse. His conviction of murder was reduced to manslaughter on the grounds of diminished responsibility Lord Woolf CJ said at paragraph 60:

"We heard oral evidence from each of these distinguished experts who confirmed the opinions set out in their reports, summarised above. It is unnecessary for the purposes of this judgment to go into further detail of their evidence. The court is not required to choose between their respective opinions on the issue of diminished responsibility. The question is whether the evidence of Dr Joseph (the same Dr Joseph who gave evidence for the Crown in the present case) and Miss Craissati is credible. Plainly it is. The Crown, do not seek to argue otherwise. Their evidence was not available at the trial. There is a reasonable explanation for it not being called, namely the negative terms of Dr Maden's report. Accordingly, Mr Martin is entitled to rely on the evidence of Dr Joseph and Miss Craissati."
But there is a very material distinction between the circumstances in Martin and those in the present case. Here there is a very important issue why the evidence of Dr Bullard and Dr Mendelson was not called at the trial. Central to that issue is whether, as the appellant submits, her abnormality of mind was the very reason why diminished responsibility was not run at the time by the defence. There is strongly disputed psychiatric evidence on this issue which it has been impossible to resolve without considering the psychiatric evidence as a whole. Accordingly we have looked with some care at all of the psychiatric evidence in order to decide whether there is a reasonable explanation for the failure to adduce the evidence at the trial.

The Court of Appeal has on a number of occasions been faced with the problem of whether to accept fresh evidence to support a defence of diminished responsibility that was not advanced at the trial. Martin is an example; R v Ahluwalia (1993) 96 Cr App R 133, R v Straw [1995] 1 All ER 187, R v Jones (1997) 1 Cr App R 86, R v Borthwick [1998] Crim LR 274, R v Weekes [1999] 2 Cr App R 520 and R v Sharp [2003] EWCA Crim 3870 are others. The difficulty for the court is the tension between the principle that there should be one trial only and that all available defences should be advanced at it and the statutory requirement under Section 2 of the Criminal Appeal Act 1968, as amended, that an unsafe conviction should not be allowed to stand.

In Ahluwalia Lord Taylor CJ, giving the judgment of the court, said at p.142:

"Turning to the third ground of appeal, we consider Mr Robertson is on stronger ground. This is in relation to diminished responsibility, an issue not raised at all at the trial. In view of our conclusion, we propose to say the minimum necessary to explain the course we propose to take.
There has been put before this court a significant number of reports of a psychiatric and similar nature, most of them obtained only recently. These express the opinion that at the time of the killing, the appellant's mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957.
Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth.
Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism."
The court did, however, in that case receive the evidence and order a retrial

In Arnold Hobhouse LJ said:

"Whether the trial be civil or criminal, parties must be required as a matter of the administration of justice to present their case at the trial and not be permitted, one case having failed, to run a different and inconsistent case in a appellate court based on different evidence. These considerations apply equally to the crime of murder and the statutory defence of diminished responsibility."
But he went on to point out that very exceptionally these considerations were not conclusive. He went on:

"It is thus possible for the Court of Appeal to receive fresh evidence after a defendant has deliberately not run a particular defence at trial and even where his predicament has arisen from him having told lies at an earlier stage."
However, the burden of proving diminished responsibility lies on the defence, and the defendant must prove "some proper and viable evidential basis for the defence before it can be submitted that the conviction for murder was unsafe."

Sharp was an appeal referred to the Court of Appeal by the Criminal Cases Review Commission. Buxton LJ at paragraph 25 cited Hobhouse LJ in Arnold:

"It is not fatal to an appellant's application that the court receive new evidence that the issue to which it is relevant was not raised at the trail; however, it remains a factor to be taken into consideration. Ultimately, the most important consideration must always be whether the proffered evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interest of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was made unsafe."
Buxton LJ referred to two principles. The first is that facts establishing innocence should not be excluded because of a previous mistaken decision by the appellant or by his advisers. The second is that it is not open to appellant's to choose not to run a defence at trial and then go back on that decision at the appeal. He pointed out that the second principle was very clearly stated by Lord Bingham CJ in R v Campbell [1997] 1 Cr App R 492 where he said:

"This Court has repeatedly underlined the necessity for defendants in criminal trials to advance their full defence before the jury and call any necessary evidence at that stage. It is not permissible to advance one defence before the jury and when that has failed, to devise a new defence, perhaps many years later, and then seek to raise the defence on appeal."
Buxton LJ then went on to investigate why the defence of diminished responsibility had not been run at the trial. After considering various authorities he drew from them the following guidance at paragraph 32.

i) The inhibition on running a different defence on appeal is not limited to cases where the original decision was in some way dishonest, or manipulative or one of purely tactics.

ii) The second defence can only be adduced in very exceptional cases.

iii) That will normally only be in cases where, as indicated by Schiemann LJ in Weekes, the original evidence was available at the trial.

iv) 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 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.
What Schiemann LJ had said in Weekes at 529F was:

"Lastly, although as Borthwick shows, an exceptional case may arise, we think it much less likely that it will be in the interest of justice to admit evidence of diminished responsibility which comes into existence only after the trial, rather than was unanimous and undisputed at the time of trial. The former case is, we think, likely to founder on the principle explained in Jones (Stephen), and in Ahluwalia. "
Discussion.

The appellant faces the following difficulties. The defence of diminished responsibility is raised for the first time years after the trial. The evidence that is now sought to be admitted is both challenged and controversial. The defence at the trial did not run diminished responsibility because they had no evidence to support such a defence and in any event to run such a partial defence to murder (in respect of which the burden of proof is on the defence) was likely to be detrimental to the appellant's main defence which, if successful, would have resulted in her acquittal. Mr Tim Owen Q.C, who has appeared before us for the appellant, argues that the basis for the defence was available at trial in the form of the appellant's medical notes; it is simply that no psychiatrist was instructed to consider them. It is the experience of this court that in cases where the abnormality of mind is said to arise from a personality disorder there is very frequently strongly disputed psychiatric evidence. We note Dr Bullard's comment that it is often very difficult to persuade juries of diminished responsibility in such cases. First if Dr Bullard has been instructed to produce a report for the trial it is highly probable that the prosecution would have answered it on the lines of the report from Dr Joseph. It seems to us entirely speculative whether diminished responsibility would, even with a favourable report from Dr Bullard, have been run at the trial, particularly if the appellant had maintained her instructions to her lawyers of her recollection of events. The defence team would have had in mind that the findings of an abnormality of mind had, in the end, to be made as a matter of inference from proved facts.

It seems to us that the most critical consideration is whether the appellant's amnesia about the circumstances of the killing is in truth a manifestation of her abnormality of mind. Resolution of this issue goes a long way towards determining whether there is a reasonable explanation for the defence not having been run at the trial.

We have come to the conclusion that we prefer the evidence of Dr Joseph on this issue. We do so for the following reasons. First, the appellant has not been consistent throughout in her lack of recollection or denial. Second, denial is not a documented feature of an emotionally unstable personality disorder and third there are more obvious explanations for the lack of recollection/denial than that it is a manifestation of her mental condition. These are (i) that she is not telling the truth and (ii) the effect of alcohol and or amphetamine.

We recite briefly the chronology to illustrate the changing picture given by the appellant. She discovered Mr Harvey's body at 8.30 am. At 8.35 am she telephoned her husband but spoke to Andrew saying, "I've killed Norman", (albeit she denied in evidence that she had said this). At 8.51 am she told police officers who arrived at the deceased's flat: "I just found him there". At 11.30 am she provided a witness statement about events on the previous day and included the fact that Andrew had visited her in the early evening. However, she failed to mention that anything untoward had happened and suggested Mr Harvey was asleep from 5.30 pm onwards. She told the police that another man, Kevin Miller, had a grudge against Mr Harvey and had attacked him two weeks before his death, the plain implication being that Miller may have been responsible for the killing. At 2.55 pm when arrested and cautioned she said: "I did not kill him." On being booked in at the custody desk she said: "I wouldn't murder the old boy, I've saved him when he has been in a coma before." Later in the afternoon when the appellant was in a cell, notes were made of her comments. Some of the comments suggested the appellant was angry with Mr Harvey for abusing her daughter and making a comment about her mother, but most of the comments comprised musings over her son having injected Mr Harvey. The Crown suggested these were consistent with the germ of an idea that this might be her defence. The following day the appellant was examined by a doctor. She did not suggest she was so intoxicated by drink or drugs that she could not remember what had happened; indeed, she did not admit to having taken alcohol or amphetamines. When interviewed she declined to comment save to say, "I don't want to because I don't want to put myself in a position," and later, "I've been so miserable all my life, I can't get my thoughts together at the moment." At the trial the appellant's evidence was that she had some recollection of the day in question but none of the time at which Mr Harvey was injected.

Thus the appellant first of all admitted to her son Andrew that she had killed Mr Harvey and then at different stages said various things, before eventually saying she had no recollection of the critical time. The Crown say, with some force, that the history of what she said after the killing has the hallmarks of someone trying to avoid responsibility and to find an explanation leading to acquittal and that this is entirely inconsistent with someone forced by her medical condition into having no recollection of the material events. Dr Bullard said she did not think the appellant was devious and manipulative, but the appellant has adopted various different stances and Dr Bullard's view was necessarily a personal one rather than a medical one. We did not receive any convincing explanation from Dr Bullard or Dr Mendelson as to how these inconsistencies in the appellant's account fitted with her lack of recollection/denial being a manifestation of the disorder.

There is inevitably a tension in the interests of justice test between the statutory requirement that an appeal must be allowed where a conviction is unsafe and the principle that a defendant cannot run one defence at his trial in the belief that if it fails he will be allowed a second opportunity to run a different defence. In Arnold Hobhouse LJ observed that while it was not fatal to an application to the court to receive fresh evidence that the issue to which it is relevant was not raised at the trial, it remains a factor to be taken into account. Similarly the court must consider what, if any reasonable explanation there is for the failure to adduce the evidence of the trial. But he added:

"Ultimately the most important consideration must always be whether the ………….. evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interests of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was unsafe."
Our conclusions.

The critical feature about the present case is that it is not established that the reason the appellant failed to run diminished responsibility at the trial was all part and parcel of her abnormality of mind ­ a manifestation of the condition that would have given rise to that defence. Absent proof of that, there is no reasonable explanation for failing to adduce the material psychiatric evidence at the trial. Leading and junior counsel gave careful consideration as to how the defence case should be run. There was no reason to suppose that a viable defence of diminished responsibility could be advanced and in any event they had good reason for running the defences that they did which (a) reflected their client's instructions and (b) if successful, would have resulted in the acquittal of the appellant. Diminished responsibility, we emphasise, is a defence that requires proof by the defence, and is only a partial defence to murder, reducing it to manslaughter. Nor should it be overlooked that with diminished responsibility, although psychiatric evidence is adduced to assist the jury, the decision on the critical questions is that of the jury. As Dr Bullard pointed out, it is notoriously difficult to persuade juries that personality disorder amounts to an abnormality of mind. Not least of the other matters which the jury would have to have had in mind, even with the benefit of psychiatric evidence, would have been the appellant's inconsistencies of account and recollection of the material events.

We have accordingly decided not to admit the fresh psychiatric evidence of Dr Bullard, Dr Mendelson and Dr Joseph save for the purpose of deciding whether there is a reasonable explanation for the failure to adduce the evidence at the trial. There is no reasonable explanation for failing to adduce the evidence of diminished responsibility at the trial. In these circumstances, and after applying the four criteria in Section 23(2), we do not think the 'interests of justice' test is met. We emphasise that this is a decision that ultimately turns on the facts of the particular case.

There is a further ground of appeal with which it is necessary to deal briefly. Provocation was not raised at the trial or on the first appeal. Nor was the case referred to us by the Criminal Case Review Commission on this basis. Mr Owen realistically accepts that, if he cannot persuade us to admit the evidence of Dr Bullard and Dr Mendelson on the question of diminished responsibility, he cannot succeed on provocation. On the other hand, he submits that, if it is in the interests of justice to admit the evidence, then it is relevant to provocation as well as to diminished responsibility. Since the conclusion of the argument the Privy Council has decided the appeal of H.M Attorney General for Jersey v Holley (Privy Council Appeal No3 of 2004). In which the Judicial Committee by a majority of six to three followed the minority opinion of the House of Lords in R v Smith (Morgan) [2001] IAC 146. The effect of this decision has been to tighten the second, or objective, test for provocation by limiting the characteristics of the defendant with which the reasonable man may be clothed. No longer is the test, as propounded by Lord Hoffmann in Morgan Smith, one of excusability. This would have been an additional hurdle for the appellant, but in the event is not relevant because of the conclusion we have reached on the psychiatric evidence.

In our judgment the conviction is safe and therefore the appeal must be dismissed. As we hope is obvious from this judgment, it was however entirely appropriate for the Criminal Cases Review Commission to have referred this case to the Court of Appeal in the light of the fresh material that they had.

isis said...

Good morning Gina and all, Gina im glad to see you back as yourself, no need to change your name stay as you are. Was reading Tylersmum on the 3As and apparently if the tapas group want to remain silent during questioning then there is very little that can be done to counter that. Wizard mabey tou can have a look at the thread and see what you make of it.

Di said...

Good morning Viv

I have read that there are two types of arguido status, is this true?

nancy said...

Isis -

If the tapas lot do remain silent they won't be doing themselves any favours - because remaining silent always suggests guilt!

Gina -

Stay with your name because you are, and always have been, a very upfront poster, and have not been afraid to face the wrath of the 'madding crowd'!! Certain people will be really happy if you decide to change your name and you don't want them laughing at your expense!

Gina said...

Nancy/Isis, I have been thinking long and hard about why the "pact of silence". Let's assume for a minute Madeleine as abducted, can you think of any reason why none of them have ever wanted to talk about anything. It really does puzzle me

isis said...

Taken from the 3as

As the interviews are on a voluntary basis if the questions went outside the LR then the solicitors would simply end the interview and leave with their client.
As to the Portuguese making the witnesses arguidos if they do so then all interviews will be off as as suspects the interviewee cannot be compelled to do anything.

It is not possible to issue an EAW inorder to seek the return of an arguido for questioning.

Anonymous said...

6 years on you then.

docmac said...
(... many of them appear have the intellectual capacity of an 8 year old. I wholeheartedly concur with his view.)

Bianca said...

Why is it that these "troubled", "mentally ill" parents never kill themselves - only their children??

Not sure what went wrong at the Greek trial, but so glad that justice will now have a chance to be done!! (although nothing will ever bring that lovely little boy back, which is absolutely sickening).

BTW, was over on the Dark Side a couple of nights ago, and was shocked how bizarre, even by THEIR standards, their thinking is. JaneGT (one of the worst) and some of the others were harping on, as usual, about how Maddy's abductor is the one to blame, and that her parents are the innocent victims (oh, even though they acknowledge that Kate and Gerry "made a mistake" that night). I tried (foolishly) to explain about "duty of care", and that while the abductor (if there even WAS one) is certainly guilty, he/she could only commit the crime because Maddy's parents, the ones who are supposed to love her and her siblings, failed in their duty of care. JaneGT jumped on me, saying "Just because the opportunity was there Bianca, didn't give the abductor the right to take it!". I explained (almost ripping my hair out with frustration!) that I never thought it was about "rights" (since when do child abductors care about anybodies rights??), but about opportunities, and it was Madeleine's parents duty not to provide such an abductor with the opportunity to take one of their children. Still though, these goof- balls weren't getting it, telling me that I was making excuses for the child abductor! I then tried (again, foolishly!) to use a hypothetical to illustrate my point. I said:

What if you were coming home from work one dark, drizzly night, and were relying on your husband to come and pick you up from the train station. Your husband has the family car, money, and knows you are waiting for him. He also knows full well, that late at night, especially in the area you live, there tends to be louts and hooligans hanging around. You wait and wait, but still, your husband doesn't come. You even try calling him on the mobile, but for some reason, he doesn't answer. Still again you wait, but no sign of your husband. Finally, frustrated, you decide to walk home in the dark, drizzly night on your own. While negotiating a dark, back street, you are accosted, raped, and beaten black and blue. Your attacker finally leaves you be, and you run to the police station in shock! From there, your husband is called, and he comes immediately to the police station. He is shocked by your appearance, and you scream hysterically that you have been raped! Your husband says how "sorry" he is, that it's a great shame, but that he just didn't feel like coming and getting you that night. He explains that he knew you were waiting for him at the station, but that he was just too comfortable in front of the telly, and figured you'd probably have money for a cab (which it turns out, you didn't). Oh, and he felt like a nap, so turned the ringer on the phone down - hence, why he didn't hear your mobile call. "oh, that's okay" you say, now falling bloodied and exhausted into you husband's arms and giving him a warm, appreciate hug, "it's all the rapist's fault".

JaneGT's response to this hypothetical was the following:

"In that case Bianca, it is the rapist's fault, and nobody else is even partly to blame. The husband will suffer enough feeling guilty for the rest of his life for not coming and getting his wife".

Hmmm, I wonder why the husband would feel "guilt" at ALL, if he is not, as JaneGT put it "even partly to blame"?? This doesn't make sense! Furthermore, I tried to explain that the hypothetical was supposed to be an example of a family member failing dismally in their duty of care, but the squawking crows just couldn't see it! "This is off-topic" they squawked, "What's this got to do with Madeleine?" .. Squawk Squawk!

And from there, it only got worse, as they passionately put it to me that "there is never an excuse for a rapist Bianca", and that "nothing gives somebody the right (there's that word again!) to rape"!! I was then told that my example was "ridiculous" and JaneGT told me to "post off"!

I left the site feeling angry and frustrated at them, but also at myself, for being so foolish as to think that I could actually influence their bizarre, barbaric mentality in some way! Of COURSE I can't, so what made me think I should even try?? The only up-side was a visit from Ana, who agreed with me and completely understood my hypothetical. Of course, they all jumped her, with JaneGT (of all people!) accusing her of being "aggressive"!

isis said...

Gina/Nancy , if and i say if the mc canns are involved in madeleines disappearance then i would have to say that there is no huge conspiracy ,as for the pact of silence i believe only 2 or 3 at most of the tapas lot know what happened that night.

Di said...

Hi Gina

Sorry it was rude of me not to put the link. Scan posts for about 4/5 pages r2d2 sounds convincing.







http://messageboards.sky.com/ThreadView.aspx?ThreadId=9320&page=697

Gina said...

Isis, please don't tell me that if they refuse to answer questions voluntarily, it will mean the PJ have to go through some other legal procedure to get them answer. This is beginning to sound to me like advice from legal experts on how to stop an enquiry progressing. ie. PJ need questions asked before they can conclude whether they have enough to make charges, without the answers they cannot conclude. This points IMO to someone does have something to hide afterall

Di said...

Gina

They are also discussing ther same on 3As






http://www.the3arguidos.net/viewtopic.php?f=1&t=7290&sid=b71e114b572276cb4ffcd93e5775a268

isis said...

Gina, its worth having a read of the 3as on the first 2 threads, lots of legal jargon to sift through but well worth a read. il try to post a link for you.

isis said...

http://74.54.207.242/viewtopic.php?f=1&t=5525&sid=6aa00611dcdab4dfe6e544fb5bba5e3d There you go gina, that should keep you away from house work for a while !!

Gina said...

Bianca, don't even bother to explain we have all got the picture. I went on there yesterday as Mum had volunteered to help me with my computer. I will not even bore you with where that lead and I wasn't even trying to make a point.

Gina said...

Thanks Isis I will take a read of it all later when I have more time, then I will at least know what you are all talking about.

isis said...

I’m a Portuguese citizen. Incidentally, I am also a lawyer. While trying to remain unbiased, neutral and dispassionate, I thought it could be helpful to throw some light on:

i) the allegation that PJ has offered a deal to Mrs. McCann in exchange of a confession; and
ii) the fact that no charges have been brought against Mr. and Mrs. McCann

For the sake of objectivity and neutrality, facts are in ALL CAPS, my opinion in normal caps, so that you can distinguish the text of the law from my views on the case.

1 – PJ HAS NOT LEGAL POWERS TO SETTLE OR OFFER DEALS WITH CRIME SUSPECTS. IN FACT, NOR EVEN THE PUBLIC PROSECUTOR HAS SUCH POWERS. ONLY THE MAGISTRATE THAT JUDGES THE CASE IN A COURT OF LAW CAN DETERMINE THE PUNISHMENT /PENALTY APPLICABLE. I UNDERSTAND THIS TO BE QUITE DIFFERENT TO THE COMMON LAW JURISDICTIONS, NAMELY THE UK AND THE US.

This is common knowledge in Portugal. One of the first things taught in law schools is that our criminal system is not like in the (American) movies. The police do not cut deals. Nor the Public Prosecutor has the power to offer deals and settle with suspects. Only the Judge can determine the penalty. It is actually quite common for the judge to deviate from the accusation and proposed penalty presented by the Public Prosecutor (for example, the Public Prosecutor charges someone with murder and asks for a 20 years jail penalty but the Judge, while finding the defendant guilty, condemns him/her to serve only 18 years).

This is such a basic principle that no detective would try to pull this stunt with a lawyer present.

2 – ONLY THE CONFESSION MADE DURING A COURT HEARING IS LEGALLY VALID (SECTION 314 OF THE CODE OF CIVIL PROCEDURE).

It seems unlikely that the PJ would push for a confession that it is not legally valid. Of course that a confession would be a huge breakthrough in the investigations as it would rule out other scenarios and allow the police and the Public Prosecutor to build a case, but if Mss. McCann later (i.e., during the court hearing) denies what she has confessed, the originally confession cannot be considered by the Judge.

On a side note, this is why the questioning at the PJ is not recorded. Contrarily to what a British gentleman was saying this afternoon on SkyNews, the reason for not recording the interview is not archaism or lack of technical means – it is actually to protect the suspect against something he/she may later regret.

3 – PJ DOES NOT HAVE THE POWER TO CHARGE MR. AND MSS. MCCANN. THE PJ ROLE IS TO CONDUCT AN INQUIRY AND PUT TOGETHER THE FACTS. BASED ON THE FACTS GATHERED BY THE PJ, IT IS UP TO THE PUBLIC PROSECUTOR TO CHARGE (OR NOT TO CHARGE) THE SUSPECTS. THE PUBLIC PROSECUTOR HAS BETWEEN 6 AND 12 MONTHS (DEPENDING ON THE SPECIFIC CIRCUMSTANCES OF THE ALLEGED CRIME) FROM THE MOMENT ON WHICH THE SUSPECT IS NAMED “ARGUIDO” TO DECIDE IF IT PRESENTS OR DISMISS CHARGES – SECTION 276 OF THE CODE OF CIVIL PROCEDURE.

It seems that the focuses being placed on the fact that no charges have been brought against Mr. and Mss. McCann is deliberately trying to pass the message that the evidence is weak. Well, I don’t know if the evidence is weak or strong. What I do know is that from a procedural point of view there could never be charges at this stage of the process.

*

Personal feelings now. I am trained to and effectively believe that anyone is innocent until proven guilty and I am therefore applying this principle to my personal assessment of this case. I also have no problems admitting ,not I feel ashamed or inferior to acknowledge, that the British police is technologically more advance that the Portuguese and probably more experienced – it is a matter of scale. What I would expect from a serious corporation such as SkyNews – on which I have relied on many different occasions for information – is neutral coverage of the story. I would expect SkyNews to investigate Portuguese law before giving any credibility to the hysteric reaction and false accusations made by the members of Mr. and Mss. McCann family. They went to the point of cutting the Portuguese lawyer out the air.

The sister of Mr. McCann is lying. Such lye seems to be an attempt to make the PJ look desperate. Having been on the other side of PJ interviews many times before, I can assure that they never get desperate.

As a lawyer, I found the gentlemen that commented on this case for SkyNews during the afternoon unprofessional and incompetent. As a man, I think they are plain i*****.



The arguido status

In Portuguese law a person is constitued as an arguido when she or he is suspected of having committed a crime.

A person can request to be made "arguida" because he or she will benefit from rights that he/she does not have as a witness. Apart of the obligation of being accompanied by a lawyer when giving depositions in front of police authorities, the arguido has the right to remain silent and not reply to any questions. This means that as a potential suspect he or she is acting in their own defence. A witness by law is obliged to reply to all questions.

A person is constituted arguido during the investigation phase when sufficient evidence is collected to formulate an accusation. At that time, the less serious of the coercive sanctions which is the "term of identity and residence" is applied to the arguido. This term can be translated as a kind of conditional liberty where the arguido is obliged to inform the police authorities whenever he/she is absent for more than 5 days. An arguido can also be submitted to other coercion measures, the most severe being the "preventive arrest", which is usually applied when there is the danger of escape, disturbance of the investigation, possibility of destroying evidence, etc.

Taken from the 3as_________________

Bianca said...

Gina,

I don't know whether they genuinely don't "get it", or if some posters on the site have a vested interest in not "getting it" (see: GerryPops), but either way, it is appalling, imo, the views and opinions considered acceptable over there.

But oh well, Viv does warn everyone when she posts the link to their blog that "normal people may find the views expressed repulsive".

How right that is!

Di said...

Gina

In my mind, if it is true that one of the tapas is not willing to co-operate with the pj, it makes them all look extremely guilty that they are hiding something.

Surely they would all like to get the interviews underway, and if the McCanns are innocent get their arguido status lifted.

viv said...

REPOSTED AS I HAD DUPLICATED THE COURTS JUDGMENT AS THOUGH IT WAS NOT LONG ENOUGH! Having a look at some of your other comments and will try and answer. I am trying to draw a picture here without being too explicit:-) Basically in law you take one case and then try and apply it to another, if you catch my drift!

Hiya all

A bit of a lengthy read but a fascinating murder case and the defence of diminised responsibility, looking at all the psychiatric evidence and how the court have to so carefull consider the state of mind of the accused at the relevant time. I really would not want someone keep bashing a needle in my leg that's for sure! Where the appellant is a drink and drugs user she has to show that she would have been mad even if she had not used the drink and drugs or that the drink and drugs have actually made her mad. Murder conviction upheld! It is a difficult defence to run and quite often the consequences of being found criminally insane can be worse than an ordinary conviction e.g. a lifetime in Broadmoor. Sometimes a straightforward conviction for murder and ultimate release on parole is a better option! Public protection is always part of the sentencing rationale is very serious cases. I think this lady may have been better trying to plead the alternative defence under the Homicide Act 1957, provocation, which will also reduce a murder charge to manslaughter because of the seriously provocative behaviourr of the victim. Did he sexually abuse? Law Report so a bit technical..

IN THE COURT OF APPEAL
CRIMINAL DIVISION


Lord Justice Scott Baker:

Background


Susan Shickle appeals against her conviction for the murder of Norman Harvey. The case has been referred to us by the Criminal Cases Review Commission. We are invited to consider fresh evidence, the purpose of which is to show that the appellant had a viable defence of diminished responsibility that was never put before the jury and that therefore the conviction for murder is unsafe.

The killing took place over nine years ago, on 2 May 1996, and the appellant was convicted in the Crown Court at Oxford on 25 February 1997 before Latham J, as he then was, and a jury. The appellant's appeal to the Court of Appeal was dismissed on 15 July 1997.

The victim was a sixty eight year old diabetic with whom the appellant had a long standing and complex relationship. He had first come into her life when she was 9 years old. She used his flat as a haven from time to time when she was without accommodation. On a large number of occasions she had provided help for him when he ran into difficulties with his diabetes, which he was not very good at managing. Her history is, in summary, that she was born in September 1960 and was therefore aged 35 at the time of the killing. She had a boy of 13, Andrew, who was a key prosecution witness. He lived with his step father, Steven Shickle, in Banbury. The appellant had two other children, both girls, by Steven Shickle and they too lived with him. He and the appellant parted in August 1994 when he left, taking the children with him. There was subsequently a divorce. At the end of 1995 the appellant began to live with a man called Mark Nash in a flat owned by a neighbour of Mr Harvey's called Wickham. On 22 April 1996 there was a quarrel between the appellant and Wickham and she and Nash were evicted. They moved into Mr Harvey's flat.

The prosecution relied upon the evidence of Andrew Shickle and William Tibbert. They had attended Mr Harvey's address in order to visit the appellant, arriving about 6pm. Shortly after Andrew and William arrived, Mr Harvey returned home. On his return the appellant asked Mr Harvey if he would go to the shops to buy some bread and cider for her. Although Mr Harvey agreed to go, he informed her that the shop would not sell him alcohol. The appellant told him to stop being so silly, at which Mr Harvey lent over to her and asked her where her mother was. This upset the appellant as Mr Harvey knew that her mother was dead. She became abusive towards Mr Harvey, pushed him into the bedroom and punched him.

When the appellant grabbed a knife Andrew intervened in an attempt to stop her. At this the appellant turned to him and said: "just think of what he did to your little sister" (allegations had been made in 1992 that Mr Harvey had indecently assaulted Andrew's sister, but a prosecution was not ever brought). The appellant discarded the knife and proceeded to search for a syringe. On finding one she filled it full of insulin and stabbed it into Mr Harvey's leg. The appellant repeated this process with two further syringes. Andrew stated that during this time the appellant was saying words such as, "I am going to kill him." The prosecution called expert evidence that the cause of death was an overdose of insulin.

Andrew's friends, Danny Cowley and Cristian Fannon, testified that when they arrived at the flat Andrew came outside and told them something along the lines of, "My mum's gone mad, she is going to kill him. She's injecting him with insulin". They then entered the flat and witnessed the appellant administer the second and third injections. Andrew and his friends left sometime after the third injection and went to Nicholas Lambrianou's house in order to find the appellant's boyfriend, Mark Nash. On finding Mr Nash, Andrew informed him, in the presence of Mr Lambrianou, of what had occurred. After the attack Mr Harvey went to bed. The appellant discovered Mr Harvey's body in bed the following morning.

The death was not initially treated as suspicious and the police obtained a witness statement from the appellant. She stated that Andrew had arrived about 7pm and stayed for about an hour, but Mr Harvey had gone to bed prior to Andrew's visit. About 9pm her boyfriend, Mark Nash, arrived at the flat and they both left at 10.30pm in order to purchase some food, returning shortly afterwards. They went to bed about midnight, and nothing untoward happened that evening. She awoke about 8.15am and discovered Mr Harvey's body.

When the appellant was arrested the police decided she was not fit to be interviewed and, owing to her condition, she was placed in a cell with a police officer. Whilst in the cell the appellant started to talk about what had occurred the previous evening. In essence she said it was Andrew who had injected Mr Harvey with the insulin. When the appellant was eventually interviewed by the police she answered, in effect, no comment.

The defence case was, and the appellant gave evidence to this effect at the trial, that Mr Harvey had previously abused her daughter Emma and had also raped the appellant. She asserted that she nevertheless had no animosity towards him. However, she thought that Andrew did not like him. Her evidence about the period leading up to Mr Harvey's death was that her recollection was quite clear until 5.45pm when she took some 'speed', alcohol and other drugs. After this she could not remember much, other than that there had been an argument about getting some food. She did not remember attacking Mr Harvey, but stated that, if she had injected him, she would have remembered it. She recollected Andrew leaving the flat and Mark arriving later on in the evening and their going to the shops to get some food. Her next memory was finding Mr Harvey the following morning.

The defence also adduced expert evidence regarding the cause of death, challenging the prosecution case. In summary, the contention was that, in itself, insulin is not a toxic substance but if administered in excess it leads to hypoglycaemia. If untreated, this in turn results in coma rather than death. Mr Harvey's general practitioner testified that owing to Mr Harvey's frail state death could have occurred at any time, most likely from heart failure.

The main thrust of the appeal that was subsequently heard by the Court of Appeal was that the judge had erred in ruling that the evidence of Messers Lambrianou, Fannon and Cowley as to the comments of Andrew was properly treated as part of the res gestae in the case. The Court of Appeal agreed with the judge that this evidence was admissible following R v Andrews [1987] AC 281. The court thought there had been a misdirection on intent but concluded that it had no bearing whatsoever on the safety of the conviction.

Why was diminished responsibility not run at the trial?

We have a note from leading and junior counsel, Mr Michael Austin-Smith Q.C and Mr Simon Davis, who represented the appellant at the trial. The appellant's instructions were that at the material time she was under the influence of drink and/or drugs and had no memory of events. She had neither wished to harm the deceased nor had any memory of doing so. The account given by Andrew and his friends must have been fabricated, alternatively Andrew had totally misunderstood the situation. She could not recall having administered any injection, although it was possible she may have administered one if she was under the impression Mr Harvey was in a state of confusion preceding an attack.

The defence had the benefit of assistance from a consultant toxicologist and a consultant pathologist. Their advice was that there were substantial difficulties in establishing the cause of death in cases involving an allegation of murder by injection of insulin, because insulin itself is not toxic and usually, if administered in overdose, results in hypoglycaemia, which, if not treated promptly, leads to irreversible coma rather than death. Death, when it does follow, is thought to be caused by a reduction in potassium levels leading to heart failure or to brain damage caused by glycogen deficiency. There was also the general practitioner's evidence (called by the prosecution) that the deceased's frail state was such that death could have occurred at any time from natural causes. It was also going to be very difficult for the prosecution to establish that the level of insulin in the deceased's body at the time of death exceeded the therapeutic dose. This was because the rapid degradation and dispersal of insulin and its breakdown products made accurate calculations of post-mortem levels, from post-mortem findings, notoriously difficult to achieve.

The scientific and pathological evidence available to the defence suggested that it was possible there had not been an insulin overdose and that, if there had been, it was not the cause of death. Also, there may only have been one injection site rather than the several alleged by the prosecution.

The defence had two psychiatric reports. Neither suggested an abnormality of mind so as substantially to diminish the appellant's responsibility. One, from Dr Bullard, dated 20 June 1996 (prepared for a bail application), of which more later, said there was no evidence the appellant was suffering from mental illness but she did have a long standing personality disorder associated with a chaotic lifestyle. She had a long history of alcohol and substance abuse. The other was from a prison psychiatrist who rejected any suggestion of mental illness.

The defence team was faced with a defendant whose case was that she had not administered the fatal dose of insulin. There was a real issue about the cause of death and, assuming the prosecution was able to prove homicide, whether it was the appellant who injected the fatal dose or doses into Mr Harvey's body. An accidental overdose by the defendant was another possibility, bearing in mind she accepted she might have injected him once if he appeared to need insulin.

None of these defences lay easily with the defence of diminished responsibility which predicates an acceptance of responsibility for causing death along with the appropriate intent, coupled with the burden of proving that the responsibility was substantially diminished by abnormality of mind.

Further, the psychiatric reports to which the defence had access said nothing to suggest there was any realistic basis for diminished responsibility. There was no indication that the appellant's heavy drinking had led to brain damage or that alcoholism had led to abnormality of mind. Counsel described her as lucid, presentable and, at least to the layman, devoid of any manifestation of abnormality of mind. There was no basis for thinking that the personality disorder identified by Dr Bullard, in her psychiatric report prepared for the bail application, could form the basis for a compelling case of diminished responsibility. The evidence to support diminished responsibility was described by counsel as at best weak and probably, more realistically, non- existent. We shall refer to all the psychiatric evidence in more detail later.

Counsel's note concludes as follows:

"It was our judgment that we could not risk running a weak diminished responsibility argument as yet another further alternative. Had there been any evidence to support diminished responsibility we might have been forced to take a different view but, as it was, neither our psychiatrist nor the psychiatrist instructed by the prison service found support for such a conclusion. Thus, absent any medical evidence to suggest that the defendant's responsibility was diminished at the material time, we felt that the only viable proposition was to run the case as we did."
We find this conclusion entirely understandable. Indeed it is difficult to see how responsible counsel could have reached any different conclusion. Nevertheless, the problem remains of how to deal with the situation in which there would have been available at the trial a viable defence of diminished responsibility if the appropriate psychiatrists had been approached.

The fundamental question for the court is whether the conviction for murder is safe. The appellant seeks the leave of the court to call fresh evidence to show that the conviction is not safe. That evidence comes from two psychiatrists, Dr Bullard and Dr Mendelson. Its purpose is to show that the appellant did have a viable defence of diminished responsibility under section 2 of the Homicide Act 1957. The prosecution have evidence from a third psychiatrist, Dr Joseph, to contrary effect. Each of the three is a psychiatrist of experience and eminence. The prosecution submit that, if the court considers fresh evidence from Dr Bullard and Dr Mendelson, it should also consider the fresh evidence of Dr Joseph.

Section 23(1) of the Criminal Act 1968 gives the court a discretion, if it thinks it necessary or expedient in the interests of justice, to receive any evidence not adduced at the trial. Section 23(2) requires the court in considering whether to hear any such evidence to have regard in particular to:

a) whether the evidence appears to the court to be capable of belief;
b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;
c) whether the evidence would have been admissible in the proceedings from which the appeal lies on any issue which is the subject of the appeal;
d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
In the present case the first and third criteria are plainly met. The submissions on the appeal have focused on the second and fourth criteria, i.e. whether the fresh evidence might afford a ground for allowing the appeal and whether there is a reasonable explanation for not having adduced it at the trial.

Having read the reports of the three psychiatrists we decided to hear their evidence de bene esse before making a formal decision whether to receive their evidence under Section 23. Each of the three psychiatrists has therefore given evidence before us and been cross-examined.

Dr Bullard

The court heard oral evidence from Dr Henrietta Bullard, who also produced three reports for the purposes of the appeal dated 24 February 2004, 18 March 2004 and 12 May 2005. Additionally the court had her report dated 20 June 1996 prepared for the bail application before the trial.

In her report of June 1996 Dr Bullard recorded that the appellant's medical notes were not yet available but that she had had treatment for agoraphobia at the Elms Clinic and treatment at the Ley Clinic. She was not suffering from mental illness but did have a long standing personality disorder associated with a chaotic lifestyle, with difficulties in relationships and problems resulting from her addiction to alcohol and drugs. She was about three months pregnant at the time of that report. Dr Bullard reported no abnormality in her cognitive functioning. There is no suggestion in this report of the possibility of a defence of diminished responsibility. Dr Bullard's response, when asked about this, was that she was only instructed on a bail application and did not have access to the appellant's notes or to the depositions. It would not have been possible, she said, to make any comment about diminished responsibility at that stage, even had she been asked to do so. In our view, such contemporaneous medical evidence as there is is of some importance for two reasons: first the court has to consider the appellant's mental state at the time of the killing and second it is relevant to look at what medical evidence was or might have been available to the defence team. Other contemporaneous medical evidence includes a report from Dr Nkwam, a prison medical officer, dated 11 November 1996 prepared for the Oxfordshire Local Authority in relation to the then unborn child. That report was based on several interviews with the appellant and ante-natal consultations from 6 May 1996, the date on which the appellant was remanded in custody. Dr Nkwam described her as a "young physically health lady with no overt signs of mental illness." There is also a report from Dr Michael Orr, a consultant psychiatrist prepared 10 years earlier in September 1986. He had access to the appellant's psychiatric case notes from 1976 and the report was based on an interview at the Elms Clinic on 16 September 1986. Whilst the report was made in relation to custody proceedings, again it is relevant to note that there is no reference to mental illness or personality disorder.

Also, there is a report from Dr Browne, visiting consultant psychiatrist to HM Prison Holloway dated 25 February 1997. This report refers to a report by Dr Franciosi, dated 23 October 1996, which we have not seen, and also to the report by Dr Nkwam. Dr Browne found no evidence of illness in the clinical or formal sense. The appellant was normal in manner and behaviour and able to give a good account of herself. She was not mentally ill. Her past history would not support a diagnosis of personality disorder/ psychopathy. However, Dr Browne concluded with the words:

"I understand that she is denying her guilt for the offence so it is not possible to put forward any possible psychological/psychiatric explanation for it."
When Dr Bullard examined the appellant in February 2004 the appellant said she could not remember the killing and still had only a vague recollection of the day of the offence. Dr Bullard concluded that the appellant suffered from an emotionally unstable personality disorder which she described as "severe". She had characteristics of both the impulsive and borderline types of personality disorder. She said emotionally unstable personality disorders are serious mental disorders and the appellant had had disabling symptoms since the age of thirteen. This was, in her opinion, an abnormality of mind due to inherent causes which substantially impaired her mental responsibility for her acts in doing the killing.

In that report Dr Bullard criticised the reports of Dr Browne and Dr Nkwam for not mentioning diminished responsibility and questioned what their instructions were. She concluded by saying it was difficult to persuade juries that personality disorders are serious mental disorders but in this case there was well documented psychiatric evidence and medical history to provide evidence for this defence.

In her second report of 18 March 2004 Dr Bullard described the killing as a domestic one and said "diminished responsibility must be the most plausible defence for a woman with her psychiatric and social background." She said it was unfortunate that the defence had failed to uncover the extensive medical and psychiatric records from hospitals attended by the appellant since the age of fourteen. Had they done so, however, they would nowhere have found any diagnosis that the appellant was suffering from a personality disorder.

Dr Bullard's analysis was that the appellant had 'forgotten' the period during which she injected Mr Harvey with insulin. Dr Bullard said this type of loss of memory is selective and that the suppression of memory was not under the control of her will. Accordingly, she would, when instructing her counsel, have glossed over the unpleasant parts of her life and emphasised those parts which depicted her as a tormented and persecuted victim. This explained why she ran the defence that she did, claiming she had no intention to harm the deceased despite what he had done to her and her daughter. Thus, her failure to instruct her lawyers properly was due to, or significantly contributed to, by her abnormality of mind. She had an overwhelming tendency to deny issues that caused her emotional distress. Denial was not a wilful process but one governed by psychological forces designed to protect the individual from disintegration and fragmentation. This was the reason for loss of memory rather than a failure of registration due to extreme intoxication.

In essence the case in this. The very condition from which the appellant was suffering effectively prevented her from admitting her culpability and providing details of her troubled past to her lawyers. Her psychiatric condition effectively removed the possibility of putting the issue of diminished responsibility before the court, as it caused her to maintain she was not involved with Mr Harvey's death.

Dr Bullard's final report is dated 12 May 2005. This report adds little to her earlier expressed opinions and deals largely with points made by Dr Joseph. In particular it refutes his conclusion that the killing would not have occurred if the appellant had not been intoxicated with amphetamine and alcohol at the material time. In it she also seeks to answer Dr Joseph's point that a diagnosis of long standing emotionally unstable personality disorder does not lie easily with the absence of overt evidence of it during the time the appellant has been in prison.

When Dr Bullard gave evidence before us it became clear that she feels strongly that diminished responsibility is an obvious defence in what she described as "domestic killings" and that it is often overlooked because of a failure to elicit psychiatric history that would show a severe personality disorder. She did, however, observe at the conclusion of her first report that, "it is difficult to persuade juries that personality disorders are serious mental disorders."

Dr Bullard emphasised that in her opinion denial is an aspect of the illness, not just denial of what she did to kill Mr Harvey, but also of other unpalatable aspects of her behaviour such as violence by her on previous occasions. She agreed that no doctor had previously said the appellant was suffering from a personality disorder and that her personality is no different when she is sober from when she is drunk. Her personality disorder would still be there if she did not abuse drugs and alcohol but those things tended to accentuate her behaviour. She fulfilled all the diagnostic guidelines for emotionally unstable personality disorder. She thought the appellant's abnormality of mind arose from 'inherent causes' (see Section 2 of the Homicide Act 1957) and that her mental responsibility was substantially impaired because of the extent of her personality disorder and the length of time that she had suffered from it. She did not think the appellant was a manipulative and devious person albeit she was completely unreliable in her account of what happened. Since her conviction she had accepted responsibility for the killing in one sense, but in reality she had not.

Dr Mendelson.

Dr Mendelson's first report is dated 15 April 2003. He said that without doubt the appellant would readily be considered to have been suffering at the time from emotionally unstable personality disorder of the borderline type and that it was an abnormality of mind of a nature and degree substantially to impair her mental responsibility for the killing. However, he was unsure how this mental disorder contributed to the appellant's behaviour at the time of the killing. If he had been instructed at the time he would have tried to obtain a greater understanding of the appellant's mental state at the time of the killing.

As to the appellant's failure to recollect anything pertinent to Mr Harvey's death, Dr Mendelson said that, as she was extremely intoxicated at the time of the killing, the alcohol and drugs would have been likely to have impaired new memory registration, but there would also have been a significant contribution from psychological factors. The case was very complex and he would like to explore it further; it was likely there were specific psychological and psychiatric factors that caused her to act as she did.

Dr Mendelson's second report is dated 15 July 2003. Having seen the appellant again, and obtained some recollection of events from her up until very shortly before the killing, he concluded:

"I now consider (she) had a viable defence of diminished responsibility. I believe that her profound emotionally unstable personality disorder of a borderline type in conjunction with the secondary depression, alcoholism and especially the adverse effects of the amphetamine abuse caused the combination of mental disorder such as to substantially impair her mental responsibility for the acts and omissions in the killing."
He said that ideally he would like to have continued to see her until she was able to recall her thoughts and mental experiences during the killing. He thought the appellant's underlying personality disorder would have been the main reason why she wished to pursue what he described as "the implausible defence" rather than "a more viable defence such as diminished responsibility being considered." He thought her inability to recall the circumstances of the killing was likely to have been impaired, at least in part by substance abuse and consequent sleep deprivation.

When Dr Mendelson gave evidence he said the appellant was very difficult to interact with and consequently to gain a full appreciation of events. He put more weight on the detriment of intoxication then did Dr Bullard. Intoxication and withdrawal from amphetamine made it more likely for her to act in the way that she did. Her actions were caused by a combination of factors. He agreed that possibly, absent alcohol, her condition might not have led to the killing at all. Psychological factors were, he thought, a more likely cause of lack of memory than alcohol and drugs. He saw the alcohol and drugs as making the impairment less substantial than as viewed by Dr Bullard. However, on balance of probabilities, she was substantially impaired.

Dr Joseph

Dr Joseph produced one report dated 20 August 2004. The appellant told him she had no memory of the killing, no intention to kill and she had discovered the body the following morning. She told him that shortly after the conviction she came to the conclusion that she had killed Mr Harvey and that she had accepted this ever since. Dr Joseph observed that she did not tell this to Dr Black who undertook a psychiatric assessment at Bulwood Hall in October 1997.

Dr Joseph's view was that, if the appellant's amnesia is genuine, the reason is intoxication with alcohol and amphetamines. She does not suffer from an emotionally unstable personality disorder and the chaotic aspects of her lifestyle were due to alcohol and drug abuse. Since she has been in prison, there has been none of the behavioural or management problems to be expected from somebody suffering from emotionally unstable personality disorder. She was not, at the time of the killing, suffering from an abnormality of mind within the meaning of Section 2 of the 1957 Act. Alcohol and amphetamine caused her to behave in an aggressive and violent manner leading to Mr Harvey's death. Absent her intoxication with drugs and alcohol, the killing would not have taken place.

When he gave evidence Dr Joseph explained his opinion that a lifelong history of anxiety did not amount to an abnormality of mind and, even if it did, it had no link with the killing. Alcohol and drugs were the real problem. In response to Dr Bullard's point that the appellant had a 'full house' of symptoms of emotionally unstable personality disorder, he said diagnosis of personality disorder is a laborious process. Personality disorder is a lifelong condition and it reflects the sober personality. None of the individual criteria has been displayed by the appellant over the last ten years in prison. For example, Dr Yousef records at p.1027/8 of the medical records that she seems to be an exemplary prisoner, with no evidence of mental illness. She gets on very well with staff and inmates. She had never been a discipline problem. Cases of this kind of personality disorder are normally very difficult to manage within the prison service, with numerous episodes of self harm, emotional outbursts and aggressive behaviour. There is an intense emotional instability which does not remain hidden.

Dr Joseph pointed to evidence of the killing having been a deliberately controlled series of acts rather than a frenzied attack. There was, in his opinion, no apparent link with emotionally unstable personality disorder. Much more would need to be known about the circumstances of the killing before any link could be made.

On the issue of why the defence could not have been run at the trial and the appellant's ability to give instructions, Dr Joseph said that denial was not recognised as a particular feature of emotionally unstable personality disorder and nor was memory loss or inability to give instructions to one's advisers. It was unclear how much planning was required for the killing, but, possibly quite a lot in the light of the number of injections and the filling of syringes. Planning ahead is inconsistent with this disorder.

Dr Joseph pointed to the combination of nothing in the medical notes to suggest anyone had diagnosed emotionally unstable personality disorder and any evidence since the killing of behaviour by the appellant consistent with such a condition. Why did no one make the diagnosis? He referred to Dr Orr's report in 1986. Dr Orr is a general psychiatrist and Dr Joseph said personality disorders and substance abuse are meat and drink to general psychiatrists.

Significantly, Dr Joseph said that there is no explanation from the appellant for the killing and he found it quite extraordinary to conclude in such circumstances that her mental responsibility for it was substantially impaired. Many psychiatrists are reluctant to comment on the degree of impairment in personality disorder cases, whereas they are prepared to do so in a case of mental illness e.g. schizophrenia.

The Law

Section 2 of the Homicide Act 1957 provides:

"(1) where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering such abnormality of mind (whether arising from a condition arrested or retarded development of mind or any inherent causes or induced by decease or injury") as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) on a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder."
The defence only arises if the Crown has proved, whether by admission or otherwise, that the defendant killed the deceased with an intent to kill or to cause really serious injury.

Lord Parker CJ said in R v Byrne [1960] 2 QB 396, 403 that whether the defendant was suffering from an abnormality of mind was a question for the jury, albeit with the assistance of medical evidence.

"'Abnormality of mind'…….means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression 'mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.
Whether the accused was at the time of the killing suffering from any 'abnormality of mind' in the broad sense which we have indicted above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it."
If satisfied by the defence on balance of probabilities on that question, they then had to consider the second question whether the abnormality was such as substantially to have impaired the defendant's mental responsibility for her act in killing the deceased. Lord Parker CJ continued at 403-4:

"This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant but the question involves a decision not merely as to whether there was some impairment of the mental responsibility but whether such impairment can properly be said to be 'substantial', a matter on which juries may quite legitimately differ from doctors."
Hobhouse LJ, giving the judgment of the court in R v Arnold (1996) 31 BMLR 24, said that the questions: what was the defendant's actual state of mind at the time of the killing? did it in fact impair the defendant's responsibility for his acts? and, if so, was such impairment substantial? were all questions that had to be answered as a matter of inference from proved primary facts. He said:

"Most usually such primary facts will be proved by persons who have either observed the killing or the conduct of the defendant shortly before or after the killing. Also relevant will normally be what the defendant has said to others at the time and what account the defendant gives either in evidence or in statements put in by the Crown of his or her conduct at the material times."
The House of Lords in R v Dietschmann [2003] I AC 1209 decided that abnormality of mind does not have to be the sole cause of the defendant's acts in committing the killing. Thus it is submitted in the present case that even if alcohol/drugs played some part it would not be fatal to the appellant's defence. At paragraph 34 Lord Hutton said:

"This point is well put in Simester & Sullivan, Criminal Law Theory and Doctrine (2000), pp 580-581:
the taking of intoxicants should not disentitle D from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] responsibility… The drink does not supervene over his underlying subnormality. That underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing."
But he added that, no doubt in many cases, if the jury concluded the defendant would not have killed if he had not taken drink, they would also find that his abnormality of mind had not substantially impaired his mental responsibility for his fatal acts.

The difficulty in the present appeal arises because the defence of diminished responsibility is sought to be run for the first time many years after the killing. The appellant advanced entirely different defences at the trial, most particularly that she had not killed Mr Harvey. This court is now faced with conflicting psychiatric evidence. How is the court to deal with that evidence? The key is to be found in Section 23 of the Criminal Appeal Act 1968 which sets out criteria to which the court is to have regard in deciding whether to hear the evidence.

It was argued that it is not for this court to choose between distinguished experts, each of whose evidence is credible on the issue of diminished responsibility. In other words it is not for us to decide what evidence we accept and what evidence we reject. We were referred to R v Martin [2002] 1 Cr App R 323. That was the case of the Norfolk farmer who was convicted of the murder of one of two men who were burgling his farmhouse. His conviction of murder was reduced to manslaughter on the grounds of diminished responsibility Lord Woolf CJ said at paragraph 60:

"We heard oral evidence from each of these distinguished experts who confirmed the opinions set out in their reports, summarised above. It is unnecessary for the purposes of this judgment to go into further detail of their evidence. The court is not required to choose between their respective opinions on the issue of diminished responsibility. The question is whether the evidence of Dr Joseph (the same Dr Joseph who gave evidence for the Crown in the present case) and Miss Craissati is credible. Plainly it is. The Crown, do not seek to argue otherwise. Their evidence was not available at the trial. There is a reasonable explanation for it not being called, namely the negative terms of Dr Maden's report. Accordingly, Mr Martin is entitled to rely on the evidence of Dr Joseph and Miss Craissati."
But there is a very material distinction between the circumstances in Martin and those in the present case. Here there is a very important issue why the evidence of Dr Bullard and Dr Mendelson was not called at the trial. Central to that issue is whether, as the appellant submits, her abnormality of mind was the very reason why diminished responsibility was not run at the time by the defence. There is strongly disputed psychiatric evidence on this issue which it has been impossible to resolve without considering the psychiatric evidence as a whole. Accordingly we have looked with some care at all of the psychiatric evidence in order to decide whether there is a reasonable explanation for the failure to adduce the evidence at the trial.

The Court of Appeal has on a number of occasions been faced with the problem of whether to accept fresh evidence to support a defence of diminished responsibility that was not advanced at the trial. Martin is an example; R v Ahluwalia (1993) 96 Cr App R 133, R v Straw [1995] 1 All ER 187, R v Jones (1997) 1 Cr App R 86, R v Borthwick [1998] Crim LR 274, R v Weekes [1999] 2 Cr App R 520 and R v Sharp [2003] EWCA Crim 3870 are others. The difficulty for the court is the tension between the principle that there should be one trial only and that all available defences should be advanced at it and the statutory requirement under Section 2 of the Criminal Appeal Act 1968, as amended, that an unsafe conviction should not be allowed to stand.

In Ahluwalia Lord Taylor CJ, giving the judgment of the court, said at p.142:

"Turning to the third ground of appeal, we consider Mr Robertson is on stronger ground. This is in relation to diminished responsibility, an issue not raised at all at the trial. In view of our conclusion, we propose to say the minimum necessary to explain the course we propose to take.
There has been put before this court a significant number of reports of a psychiatric and similar nature, most of them obtained only recently. These express the opinion that at the time of the killing, the appellant's mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957.
Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth.
Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism."
The court did, however, in that case receive the evidence and order a retrial

In Arnold Hobhouse LJ said:

"Whether the trial be civil or criminal, parties must be required as a matter of the administration of justice to present their case at the trial and not be permitted, one case having failed, to run a different and inconsistent case in a appellate court based on different evidence. These considerations apply equally to the crime of murder and the statutory defence of diminished responsibility."
But he went on to point out that very exceptionally these considerations were not conclusive. He went on:

"It is thus possible for the Court of Appeal to receive fresh evidence after a defendant has deliberately not run a particular defence at trial and even where his predicament has arisen from him having told lies at an earlier stage."
However, the burden of proving diminished responsibility lies on the defence, and the defendant must prove "some proper and viable evidential basis for the defence before it can be submitted that the conviction for murder was unsafe."

Sharp was an appeal referred to the Court of Appeal by the Criminal Cases Review Commission. Buxton LJ at paragraph 25 cited Hobhouse LJ in Arnold:

"It is not fatal to an appellant's application that the court receive new evidence that the issue to which it is relevant was not raised at the trail; however, it remains a factor to be taken into consideration. Ultimately, the most important consideration must always be whether the proffered evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interest of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was made unsafe."
Buxton LJ referred to two principles. The first is that facts establishing innocence should not be excluded because of a previous mistaken decision by the appellant or by his advisers. The second is that it is not open to appellant's to choose not to run a defence at trial and then go back on that decision at the appeal. He pointed out that the second principle was very clearly stated by Lord Bingham CJ in R v Campbell [1997] 1 Cr App R 492 where he said:

"This Court has repeatedly underlined the necessity for defendants in criminal trials to advance their full defence before the jury and call any necessary evidence at that stage. It is not permissible to advance one defence before the jury and when that has failed, to devise a new defence, perhaps many years later, and then seek to raise the defence on appeal."
Buxton LJ then went on to investigate why the defence of diminished responsibility had not been run at the trial. After considering various authorities he drew from them the following guidance at paragraph 32.

i) The inhibition on running a different defence on appeal is not limited to cases where the original decision was in some way dishonest, or manipulative or one of purely tactics.

ii) The second defence can only be adduced in very exceptional cases.

iii) That will normally only be in cases where, as indicated by Schiemann LJ in Weekes, the original evidence was available at the trial.

iv) 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 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.
What Schiemann LJ had said in Weekes at 529F was:

"Lastly, although as Borthwick shows, an exceptional case may arise, we think it much less likely that it will be in the interest of justice to admit evidence of diminished responsibility which comes into existence only after the trial, rather than was unanimous and undisputed at the time of trial. The former case is, we think, likely to founder on the principle explained in Jones (Stephen), and in Ahluwalia. "
Discussion.

The appellant faces the following difficulties. The defence of diminished responsibility is raised for the first time years after the trial. The evidence that is now sought to be admitted is both challenged and controversial. The defence at the trial did not run diminished responsibility because they had no evidence to support such a defence and in any event to run such a partial defence to murder (in respect of which the burden of proof is on the defence) was likely to be detrimental to the appellant's main defence which, if successful, would have resulted in her acquittal. Mr Tim Owen Q.C, who has appeared before us for the appellant, argues that the basis for the defence was available at trial in the form of the appellant's medical notes; it is simply that no psychiatrist was instructed to consider them. It is the experience of this court that in cases where the abnormality of mind is said to arise from a personality disorder there is very frequently strongly disputed psychiatric evidence. We note Dr Bullard's comment that it is often very difficult to persuade juries of diminished responsibility in such cases. First if Dr Bullard has been instructed to produce a report for the trial it is highly probable that the prosecution would have answered it on the lines of the report from Dr Joseph. It seems to us entirely speculative whether diminished responsibility would, even with a favourable report from Dr Bullard, have been run at the trial, particularly if the appellant had maintained her instructions to her lawyers of her recollection of events. The defence team would have had in mind that the findings of an abnormality of mind had, in the end, to be made as a matter of inference from proved facts.

It seems to us that the most critical consideration is whether the appellant's amnesia about the circumstances of the killing is in truth a manifestation of her abnormality of mind. Resolution of this issue goes a long way towards determining whether there is a reasonable explanation for the defence not having been run at the trial.

We have come to the conclusion that we prefer the evidence of Dr Joseph on this issue. We do so for the following reasons. First, the appellant has not been consistent throughout in her lack of recollection or denial. Second, denial is not a documented feature of an emotionally unstable personality disorder and third there are more obvious explanations for the lack of recollection/denial than that it is a manifestation of her mental condition. These are (i) that she is not telling the truth and (ii) the effect of alcohol and or amphetamine.

We recite briefly the chronology to illustrate the changing picture given by the appellant. She discovered Mr Harvey's body at 8.30 am. At 8.35 am she telephoned her husband but spoke to Andrew saying, "I've killed Norman", (albeit she denied in evidence that she had said this). At 8.51 am she told police officers who arrived at the deceased's flat: "I just found him there". At 11.30 am she provided a witness statement about events on the previous day and included the fact that Andrew had visited her in the early evening. However, she failed to mention that anything untoward had happened and suggested Mr Harvey was asleep from 5.30 pm onwards. She told the police that another man, Kevin Miller, had a grudge against Mr Harvey and had attacked him two weeks before his death, the plain implication being that Miller may have been responsible for the killing. At 2.55 pm when arrested and cautioned she said: "I did not kill him." On being booked in at the custody desk she said: "I wouldn't murder the old boy, I've saved him when he has been in a coma before." Later in the afternoon when the appellant was in a cell, notes were made of her comments. Some of the comments suggested the appellant was angry with Mr Harvey for abusing her daughter and making a comment about her mother, but most of the comments comprised musings over her son having injected Mr Harvey. The Crown suggested these were consistent with the germ of an idea that this might be her defence. The following day the appellant was examined by a doctor. She did not suggest she was so intoxicated by drink or drugs that she could not remember what had happened; indeed, she did not admit to having taken alcohol or amphetamines. When interviewed she declined to comment save to say, "I don't want to because I don't want to put myself in a position," and later, "I've been so miserable all my life, I can't get my thoughts together at the moment." At the trial the appellant's evidence was that she had some recollection of the day in question but none of the time at which Mr Harvey was injected.

Thus the appellant first of all admitted to her son Andrew that she had killed Mr Harvey and then at different stages said various things, before eventually saying she had no recollection of the critical time. The Crown say, with some force, that the history of what she said after the killing has the hallmarks of someone trying to avoid responsibility and to find an explanation leading to acquittal and that this is entirely inconsistent with someone forced by her medical condition into having no recollection of the material events. Dr Bullard said she did not think the appellant was devious and manipulative, but the appellant has adopted various different stances and Dr Bullard's view was necessarily a personal one rather than a medical one. We did not receive any convincing explanation from Dr Bullard or Dr Mendelson as to how these inconsistencies in the appellant's account fitted with her lack of recollection/denial being a manifestation of the disorder.

There is inevitably a tension in the interests of justice test between the statutory requirement that an appeal must be allowed where a conviction is unsafe and the principle that a defendant cannot run one defence at his trial in the belief that if it fails he will be allowed a second opportunity to run a different defence. In Arnold Hobhouse LJ observed that while it was not fatal to an application to the court to receive fresh evidence that the issue to which it is relevant was not raised at the trial, it remains a factor to be taken into account. Similarly the court must consider what, if any reasonable explanation there is for the failure to adduce the evidence of the trial. But he added:

"Ultimately the most important consideration must always be whether the ………….. evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interests of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was unsafe."
Our conclusions.

The critical feature about the present case is that it is not established that the reason the appellant failed to run diminished responsibility at the trial was all part and parcel of her abnormality of mind ­ a manifestation of the condition that would have given rise to that defence. Absent proof of that, there is no reasonable explanation for failing to adduce the material psychiatric evidence at the trial. Leading and junior counsel gave careful consideration as to how the defence case should be run. There was no reason to suppose that a viable defence of diminished responsibility could be advanced and in any event they had good reason for running the defences that they did which (a) reflected their client's instructions and (b) if successful, would have resulted in the acquittal of the appellant. Diminished responsibility, we emphasise, is a defence that requires proof by the defence, and is only a partial defence to murder, reducing it to manslaughter. Nor should it be overlooked that with diminished responsibility, although psychiatric evidence is adduced to assist the jury, the decision on the critical questions is that of the jury. As Dr Bullard pointed out, it is notoriously difficult to persuade juries that personality disorder amounts to an abnormality of mind. Not least of the other matters which the jury would have to have had in mind, even with the benefit of psychiatric evidence, would have been the appellant's inconsistencies of account and recollection of the material events.

We have accordingly decided not to admit the fresh psychiatric evidence of Dr Bullard, Dr Mendelson and Dr Joseph save for the purpose of deciding whether there is a reasonable explanation for the failure to adduce the evidence at the trial. There is no reasonable explanation for failing to adduce the evidence of diminished responsibility at the trial. In these circumstances, and after applying the four criteria in Section 23(2), we do not think the 'interests of justice' test is met. We emphasise that this is a decision that ultimately turns on the facts of the particular case.

There is a further ground of appeal with which it is necessary to deal briefly. Provocation was not raised at the trial or on the first appeal. Nor was the case referred to us by the Criminal Case Review Commission on this basis. Mr Owen realistically accepts that, if he cannot persuade us to admit the evidence of Dr Bullard and Dr Mendelson on the question of diminished responsibility, he cannot succeed on provocation. On the other hand, he submits that, if it is in the interests of justice to admit the evidence, then it is relevant to provocation as well as to diminished responsibility. Since the conclusion of the argument the Privy Council has decided the appeal of H.M Attorney General for Jersey v Holley (Privy Council Appeal No3 of 2004). In which the Judicial Committee by a majority of six to three followed the minority opinion of the House of Lords in R v Smith (Morgan) [2001] IAC 146. The effect of this decision has been to tighten the second, or objective, test for provocation by limiting the characteristics of the defendant with which the reasonable man may be clothed. No longer is the test, as propounded by Lord Hoffmann in Morgan Smith, one of excusability. This would have been an additional hurdle for the appellant, but in the event is not relevant because of the conclusion we have reached on the psychiatric evidence.

In our judgment the conviction is safe and therefore the appeal must be dismissed. As we hope is obvious from this judgment, it was however entirely appropriate for the Criminal Cases Review Commission to have referred this case to the Court of Appeal in the light of the fresh material that they had.

Viv x

Lord Justice Scott Baker:

Gina said...

Bianca - I have totally given up trying to understand them. They say the welcome anybody as long as not abusive fair enough. But they clearly do not welcome opposing views no matter how polite. They read all blogs the accuse people of being two faced and talking about the behind their back, How is an open blog that they read behind their back for christ sake. I have deleted their site from my favourites so I am no longer tempted to read it so if they are still trying to goad me via their own site they are now wasting their time, cos I am not reading it. (Give it 10 minutes and someone will be on here calling me a liar, watch this space hun)

DI I agree it is so confusing isn't it. If you know your friends are totally innocent of harming their child in anyway, why on earth would you not want to do everything in your power to get their names cleared, this is so bizarre

isis said...

Interesting read viv, had to read it a few times but got it eventually !! Thanks.

Anonymous said...

melbel said...
Bye for today ladies, anyone online.
I have worn myself out,for today and they only let me out,in the mornings,so have a nice day .x

That is a nice gesture on the part of the lunatic asylum

Bianca said...

"Surely they would all like to get the interviews underway, and if the McCanns are innocent get their arguido status lifted." - Di
=====================================

But isn't the argument by the McCanns and their lawyers that the PJ have been putting words into their mouths and trying to pressure them into "admitting" to manslaughter?? According to Gerry's sister, Kate was offered a bribe to say she had accidentally killed Madeleine. These claims may, or may not be, true .. who knows.. but if they ARE true, it would certainly explain the McCanns reluctance to be pressured into questioning.

P.S. I am staunchly anti-McCann in sentiment. However, I am driven primarily by a disgust for their child-neglect, and not necessarily by a belief that they killed Madeleine.

nancy said...

Gina -

Birds of a feather springs to mind! They all stick together and I would say it has something to do with the fact that they are all in the medical profession,whose resolve is to always stick by their staff even in cases where it is likely that a patient has possibly died as a result of some doctor or nurse's incompetence. Many familes of patients have taken the medical profession to court and failed!! The same goes with the Masonic Lodge members; members have to swear an oath of secrecy to death - and I read that Gerry McCann is a member and possibly one or two of the other tapas men were members too, although I am only surmising this.

The Tapas 9 have obviously decided on a one for all and all for one situation, but whether that will be able to weather the slings and arrows of police questioning remains to be seen. If one caves in then that could be curtains for all of them.

Gina said...

Bianca I cannot see why the McCanns are reluctant to answer questions now, they have all the lawyers, the British Police on hand too, and the world watching, surely they do not think the PJ are going to make fools of themselves in front of that lot.

I agree with your PS that is very much where I stand on this case, but also cannot accept some of the pro's theory that the McCanns have be stitched up by the PJ. It is far harder to prove manslaughter than to accept there was an abduction IMO so why not take the easy way out

isis said...

Bianca, my sentiments exactly, if they really wanted to get these interviews going it should be very easy. Get on a plane and fly to faro and do as they said they would when leaving portugal,oh and bring the tapas crew with them.

Gina said...

Nancy, have you got sunstroke hun, if they are the medical profession god help us all

Bianca said...

Gina, I know exactly what you mean. They say they want to "debate", but really what they want you to say is "poor McCanns" this and "poor McCanns" that! If you go outside these guidelines, you are pounced on and called "ridiculous", "stupid", and "aggressive" (just some of the things they called Ana the other day, for doing nothing more than expressing an opposing opinion). This is not a debate, it's a cult!

Gina said...

Bianca, is Ana someone new or
ANNA ...........MADELEINE..........

Di said...

Bianca

I cannot remember who it was that stated Kate had been offered a bribe, was it her mother or Gerry's sister? but I do remember a PJ stating no such bribe had been offered. I think we have to assume there was a mixup with translation. However Bianca, if they are all innocent and have absolutely nothing to hide, I cannot understand why they would not wish to be re-interviewed, afterall they will have their lawyers present.

Like you I don't necessarily believe they were responsible for Maddies death, I have always said, I would like to think she died as a result of a tragic accident.

However, either way they, this poor little girl is missing and they should all be ashamed with themselves for not co-operating fully with the PJ.

Gina said...

Di Amen

Gina said...

Di Amen

nancy said...

Bianca - Hi -

I'm sorry, but I don't believe for one moment that Kate was offered a bribe. Why would the PJ's do this -what would there be in it for them when you think about it? Why would jeopardise their good name? I hardly think they would just to save time looking! They wouldn't do it any more than our police would. When people are suspects in a crime such as this they will say anything to cover their heads. They are trying to convince the public that the McCanns are whiter than white and the Portuguese Police are the 'baddies' in all of this! If Kate and Gerry had done their duty as parents (and also as doctors), we would not be here now discussing poor Madeleine's disappearance. If they had shown more remorse and not started out on their publicity campaign immediately, then I believe the public and the newspapers would not have reacted as they did. I personally think the Portuguese have bent over backward in this case and have been villified for their efforts.

Changing the subject, how brave of you to go into the lion's den! I should stay away because if you said black was black they would say it was white - you just cannot win so why bother!

Bianca said...

"Bianca I cannot see why the McCanns are reluctant to answer questions now, they have all the lawyers, the British Police on hand too, and the world watching, surely they do not think the PJ are going to make fools of themselves in front of that lot." - Gina
=====================================


Actually Gina, this is a very good point. You're right. The circumstances if they were questioned now are very different to when they were questioned before. I didn't really consider that! In that case, it does seem suspicion (on the McCanns and Tapas group's part) that they are STILL avoiding questioning!

Well, I am not strong, by any means, in a suspicion that the PJ would be trying to stitch them up (as the pro's are so convinced of!). In fact personally, I would put the likelihood of such a thing as "low". However, I do try to keep an open mind, as I have seen from other high profile cases, including child disappearance cases, that there is often circumstances/evidence that does not come to light until years after the case is resolved.

isis said...

Di, this is alink to an irish primetime special that was made in october, it is worth a watch when you have time. It throws some light on the alleged deal that kate was offered. http://www.rte.ie/news/2007/1025/primetime.html

Bianca said...

Hi Gina - Well the poster that was with me in the Lion's Den the other night spelled her name "Ana"

??

LittleGreyCell said...

Bianca,

There are some Pros who are never going to pay even lip service to the right to comment or to basic logic; reading your post this morning along with the 'ludicrous' thuggish posting of late, it suddenly struck me that many of these dimwits are indeed paid by these new 'media monitoring' outfits. In this case, they are paid to disrupt and destroy at all costs, and this is why it is impossible to have any semblance of adult communication with them.

They don't give a toss for the usual social conventions - I should think many of them are attracted to the job because they can bully people 'legitimately' and anonymously and for money, and they get a kick out of others' reactions to their deeds.

You will never be able to win an argument with them. They don't have to demonstrate any intelligence, they think they will never be accountable for their words, and they are being paid to be as rude as they like.

Naturally, this kind of job will attract a certain sort of person who cares not a jot about others' feelings, or morality or a small blond girl, probably dead at the hands of very evil people.

That's not to say that I believe all the 'Anons' to be mercenaries (a somewhat ironic name, since they show no mercy towards anyone). I think there are three types of 'Pro':

1. Friends and relatives of the McCanns and their lovely friends

2. Volunteers who signed up to the appeals for help (remember the 'ad' that Ironside posted a while ago on the DE?)

3. So called 'professional' Media Monitoring lackeys.

I write this now because it has never been clearer to me that this tactic is being employed - especially at the moment, as the activity is reaching frenzied levels because the PJ are here.

You won't win with them, Bianca. God knows, I tried for months on the DE to enter into rational discussion with them - as have most of us here - but the headless chickens are taking over and I'll bet the keyboard monkey fund is getting ever more depleted as March turns into April...

viv said...

Hiya Isis

Great to hear you are a lawyer!

TBH the more I hear about Portuguese law the more I find similarities with our own law. This is no doubt because both jurisdictions are subject to the European Convention on Human Rights that gives fundamental rules as to how suspects should be treated and what their rights are, e.g. the presumption of innocence until actually proven guilty by a criminal court, the right not to self incrimination, e.g. to remain silent rather than proving the prosecution case by your answers. I have previously posted that research in the UK confirms only the most serious criminal suspects actually exercise their right to remain silent as we know that Kate McCann has.

In relation to your point No 1 it is exactly the same in UK. The Police investigating a case have no right whatsoever to do a deal with the suspect as to appropriate punishment or offering a light sentence for a confession. Appropriate punishment on a finding of guilt is purely a matter for the judge. However, at the Crown Court deals are sometimes struck between the barristers but this is way beyond the police investigation stage. In UK law we have two forms of causing grievous bodily harm. One with intent which carries a maximum sentence of life and one without intent which carries a maximum sentence of 5 years. It is not at all unusual for a defendants barrister to say he will plead guilty to without intent and for the prosecution to accept this to avoid a costly trial where they may not be able to actually prove intent. Similarly sometimes prosecution will accept a guilty plea to manslaughter rather than pushing on with a trial for murder. It is the same one is with intent and the other without intent and therefore less serious, less prison! Barristers will also sometimes ask the judge what would be the sentence if my client pleaded guilty to the lesser charge. That is as near as we get to plea bargaining in the UK. It is much more out in the open in the other major common law jurisdiction, US.

2. In Portugal only a confession given in court is admissible. This is different in UK. A confession is admissible provided it was not obtained under any form of duress. If it was not given to the police then the judge may rule the confession unreliable or the jury may choose not to accept it, if the accused retracts his confession. Of note here, it is decided UK law that a confession offered to a priest IS ADMISSIBLE against the accused. All police interviews are recorded here and the evidence from those interviews is used in court, so the Portuguese system is more favourable to the accused.

3. In serious cases of this nature in UK the police will not charge an accused person without the advice and assistance of the Crown Prosecution Service. There is a Senior Crown Prosecutor working on the McCann case advising at all stages in the UK. In UK it is slightly different, the moment the evidence reaches a stage sufficient to substantiate charges, they will be charged. I understand it is different in Portugal, no charges can be brought until the end stage of the investigation. I agree it is absurd to state that due to the failure to bring charges there can be no case, it simply cannot happen at this stage. Pro McCanns who say this have no idea what they are talking about. It was some 14 months I believe in UK before Huntley was actually charged and I think even longer in Shipman case. The investigation stage can clearly be lengthy. Where you have Shannon's abductor literally caught red-handed with the little girl there is no need to wait and investigate, it was open and shut. However , he could face further charges in UK law and the police investigation is ongoing. They obviously wished to remand this man in custody immediately due to the risk he presented to children. Where the police need to leave a suspect at large, e.g. Huntley they are bugged and followed everywhere they go to stop them doing anything else and to gain further evidence to help the prosecution case against them.

I do agree British reporting has been lamentable. Even in The Times there has been virtually no explanation of Portuguese law to enable us to all understand the process better.

Thanks very much for your explanation of arguido. It is again comparable with UK law where we caution a suspect and remind them of their rights to have a lawyer and the right to silence. However in UK law the right to silence has been dramatically curtailed. Sure you have that right, but if you use it adverse inferences of guilt may be drawn against you at trial. This was due to the research evidence that it was being used by the critical few in order to try and get away with it and it was felt the scales of justice needing balancing more in favour of victims of very serious crime.

nancy said...

Gina -

I tell you what - I'm flipping freezing in this house - lovely outside though so I'm going out there to get a bit of sun.

Yes, regarding the medical profession - I overstretched my imagination a bit there!

By the way, have your read the story of the British couple who knocked over a 17 year old motor cyclist in Alfaz de Pi and then dragged him 2 kilometres, running over him a couple of time again - they were both drunk and shouldn't have been driving - the Spanish are really up in arms about it and are going to have a parade of condemnation tomorrow - I hope they don't send a lynch mob for all of us Brits in revenge!!

isis said...

LGC , have you read on the 3as that allegedly some members of the pj have been in the uk for a few days conducting prelimanary interviews to be joined around the 7th by another group including a prosecutor? Of course this is insubstantiated,but interesting never the less.

Di said...

Isis

Thanks for the link will give it a watch when I get time.

Busy cleaning day today so on and off here as I pass buy with duster in hand.

Di said...

Isis

Meant by.

Gina said...

Bianca, yesterday before Alsa's blog went down and we were getting a bit of annon trash I asked them to join in the debate as I was and still am open to opposing points of view because it does make us stop and think. I challenged any of them of give me a SENSIBLE answer as to why they thought the PJ had framed the McCanns when the could so easily, if lazy and incompetent as they suggest just gone along with the abduction theory, said they thought the child was out of the country and handed it over to Interpol (or whoever deals with that sort of thing). The reply I got just before the site went down was I was a lying two faced trouble maker etc etc etc. Now that really answered my question didn't it. They do not want people asking sensible difficult questions that they cannot answer, they just want to say what they want about the PJ without being able to justify the reason. They have seen with their own eyes two cops sitting in their car smoking and from that they have ASSUMED the rest and damned the PJ. I have seen with my own eyes, Madeleine falling up the steps of the plane, and her parents doing nothing to assist or check she was ok. I have heard Gerry saying it was like dining in the garden and shrugging it off as if it were the norm, I have seen many things which has formed my opinion of the McCanns, and whilst I do not know whether they accidentally killed Madeleine or what happened I still feel that all that what happened that night, and the bad publicity that they have incurred since is very much their own fault.

I rest my case me lord, now off to the shops

isis said...

Ha Ha Viv, im no lawyer, i took that from the 3as!! I would make a lousy lawyer, i have an attention span of less than a goldfish :)))

Bianca said...

"I cannot remember who it was that stated Kate had been offered a bribe, was it her mother or Gerry's sister? but I do remember a PJ stating no such bribe had been offered. I think we have to assume there was a mixup with translation. However Bianca, if they are all innocent and have absolutely nothing to hide, I cannot understand why they would not wish to be re-interviewed, afterall they will have their lawyers present.

Like you I don't necessarily believe they were responsible for Maddies death, I have always said, I would like to think she died as a result of a tragic accident.

However, either way they, this poor little girl is missing and they should all be ashamed with themselves for not co-operating fully with the PJ.

Friday, 28 March 2008 12:33:00 o'clock GMT - Di
============================================

Yes. I have always thought it was strange that they refused to co-operate with the PJ and decided instead to get private investigators. In fact, I would have thought that this was illegal, considering that they are suspects in the case themselves? (although maybe it's okay because they are in Britain now?).

Right from the start (and I'm sure I don't have to tell anyone here this) the McCanns seemed highly evasive and uncooperative, including that they allegedly interfered with the crime scene before the PJ even arrived! Certainly, none of this seems consistent with parents that are genuinely trying to do all they can to locate their missing child. But then, the pro's will tell you that it's actually the PJ that contaminated the crime scene, and that the McCanns HAD to hire Metodo 3 as the PJ had simply stopped looking for Madeleine. And of course, the "facts" change depending on which newspaper you read!

But I agree with yourself and Gina - now that they have lawyers, the British police, and the eyes of the world to monitor proceedings, there is no reason for them to fear further questioning by the PJ.

LittleGreyCell said...

Hello Isis,

Yes, I did read that. Has a certain ring of truth about it too, I thought.

I think we can expect more appalling tactics from Team McCann now. They are being backed into a corner and so the defence will become ever more hysterical.

The thing is, if Madeleine's case never comes to court, the matter will not be at an end; for the McCanns - even if their arguido status is lifted - will not have been pronounced 'not guilty'. Most of the public distrust them, and the cloud of suspicion - if Madeleine never turns up alive - will be above their heads forever.

ICantThinkOfAName said...

Viv

On the subject of diminished responsibility? I ofer another report from the (Brighton) Argus.

"Man cleared of savage murder - because he was drunk
By Ali Cridland


A man who savagely beat his gentle landlord to death has been cleared of murder - because he was drunk.

Darren Blackley, 29, kicked, punched and stamped on 50-year-old David Wilson even using a child's cricket bat in the attack.

But he was found not guilty of murder after a jury accepted that he could not have intended the murder as he was inebriated.

Victims groups and legal experts last night warned the verdict was a "dangerous precedent" which could see thousands of violent criminals using alcohol abuse as an excuse.

Rose Dixon, spokeswoman for the Support After Murder and Manslaughter, said: "This will lead to people now saying, 'I beat my wife, but oh it's okay because I was drunk'.

"It sets an extremely dangerous precedent."
advertisement




A spokesman for the Alcohol Concern campaign group admitted the verdict "opened up a whole can of worms".

Meanwhile a spokeswoman for The Suzy Lamplugh Trust, which campaigns on personal protection issues, added: "It absolutely sets a precedent, I'm sure people will try to use this again as an excuse."

Darren Blackley, who claimed he was too drunk to remember the fatal assault, was cleared by a jury at Lewes Crown Court of murder but convicted of manslaughter.

He was will be considered for parole in just two years and eight months after being given an indeterminate sentence.

Blackley admitted killing his friend and landlord, David Wilson, but claimed he was not responsible because he suffers from "alcohol dependence syndrome".

The World Health Organisation defines the syndrome as a disease where the sufferer has a strong desire or compulsion to take alcohol.

Blackley, who did not give evidence during his trial, denied murder but admitted manslaughter due to diminished responsibility. Judge Richard Brown said he viewed Blackley as a dangerous offender who posed a significant risk to the public.

The judge said to Blackley: "You have been convicted of the horrendous killing of David Wilson.

"He was subjected to a savage beating which involved a considerable amount of stamping while he was prone on the ground.

"He was a man who people described as gentle, who was never violent even when in drink. He had extended his hospitality to people like you who had no accommodation and you repaid that hospitality by killing him."

Judge Brown told Blackley his drinking did not excuse his behaviour.

He said: "The jury found you so drunk you were incapable of forming any intent to kill or cause serious bodily harm but you do have a history of violence in drink. While alcohol may go some way to explain your actions, it does not excuse them."

Although he will be considered for parole in under three years the indeterminate sentence means Blackley could serve longer in jail.

During the trial the court heard how Mr Wilson, 50, had let Blackley stay at his bedsit in Worthing, where he often offered a temporary home to street drinkers. But six months after he moved into the flat in St Elmo Road, Blackley kicked, punched and stamped on Mr Wilson leaving him with fatal injuries. A blood-stained children's cricket bat is also believed to have been used in the deadly assault, but it was too light to have caused the most serious injuries. Mr Wilson's body was found by police called to the flat just after midnight on September 27 2006 following a complaint from a neighbour living in the bedsit below about loud music.

When officers arrived they saw Mr Wilson's body half-hidden under his bed.

Blackley told police not to worry as he was only drunk.

A post mortem revealed Mr Wilson may have been dead for up to six hours. Mr Wilson, a single man who was known as Davey, had lived in the seaside town for 28 years.

The former shipyard worker was a well-known glass collector at local pubs and was nicknamed Wee Horse by his friends. When Blackley was arrested he told officers: "He is my mate. I have not hurt him."

Blackley claimed he had no memory of the attack. He told a psychiatrist he was drinking more than 100 cans of strong lager a week at the time and his recollection of the night of the fatal attack was a "blur." He could not give an reason why he had killed Mr Wilson. Blackley claimed he had started drinking heavily at 18 and had suffered from alcohol amnesia when he had black-outs and could not recall events.

The prosecution claimed Blackley had a violent history and had become increasingly aggressive in the months leading up to the killing. The court heard from witnesses who told how they were victims of unprovoked attacks by Blackley, who left them bleeding and battered.

After the hearing Detective Inspector Jeff Riley said: "My thoughts are with the family of David Wilson. Darren Blackley has been convicted of his unlawful killing but we will never know what exactly caused Blackley to attack him in the way he did that night in Worthing.

"But he is a dangerous man and through the affects of alcohol took the life of another. He has been given an indeterminate sentence for the protection of the public."

Judge Brown passed an indeterminate sentence under public protection legislation. If the sentence had not been passed under the legislation he would have sentenced him to eight years, of which Blackley would normally have served half. The 16 months Blackley has spent on remand is subtracted from the figure, leaving him to serve two years and eight months behind bars before he is considered for parole."

I leave you to judge if it is relevent to the discussion.

calcite51 said...

Bianca - I am very disappointed in your comments. Ana was a nutcase -anyone that supports her is as nutty (in my NOT SO HUMBLE OPINION). With freedom of speech, comes responsibility.

The only reason you went to the other blog is to disrupt. So do us all a favor and keep away.

Gina - not a lot I can say but it is your choice.

With your permission, I would like to post a video tonight that I saw yesterday. It is not on Madeleine but it is of another little girl and this time, the system let her down. No, it wasn't Portugal.

isis said...

LGC, I agree it is time for the truth ,in particular from the tapas lot or at least from 3 of them , its no less them madeleine deserves.

viv said...

Di

Philomena McCann, Gerry's sister, came on Sky News and categorically stated that PJ had offered Kate a deal saying if you confess to accidentally killing your daughter, we can offer you a light sentence of say two years or maybe even less.

Kate's lawyer was forced to point out the next day that no such deal had been offered.

In short Philomena is a blatant liar. I have a feeling she has always wanted to lay the foundations in the public's mind that it was Kate, not her precious little brother...she has also slyly stated that Gerry never liked to leave her alone with the children, if he had to go away he got the grandparents to go and stay. I believe her intention was to make plain, Kate is unbalanced and not safe to be left with the children. That may be so, but it does not excuse her brother, arranging to dispose of the corpse or selling Madeleine's image to the public and the highest bidders, or extracting libel damages out of the Daily Express.

Also the question has to be asked, what made Kate ill, I have a view about that!

isis said...

Viv, watch the program i put the link to earlier, it gives phils version of that from the horses mouth so as to speak.

Wizard said...

Hi LGC,
I am in total agreement with your 12.41 post – very well said. What I cannot understand is hostile posters in the main, with a few exceptions, have a different agenda and to me their actions are quite transparent. Why is it that people respond to them? As you mention their view point will not be changed this is their work/business and not necessarily their personal view point.

viv said...

Isis

Pleased to read you got it..all there isnt it!

I wonder if the facts are really pretty simple ..Kate gave Madeleine an overdose of sedative medication..was the blood splatter due to an injection, perhaps?

Viv x

Di said...

Viv

Thanks for clearing that up for me.I must admit everytime I saw Philomena speaking, I thought she was making matters look much worse for the McCanns. Mind you Kates mother does no better.

Do you know Viv, if there are two types of agruido status as has been mentioned on 3As, nobody seems to know the answer on there.

Bianca said...

Hi Nancy,

I agree. I know that sometimes police officers DO offer bribes, but there has to be a motive, and it's hard, even sitting here now, for me to come up with a legitimate motive for the PJ to do this!

Like I say, I put the likelihood of this bribe as "low", but choose to keep an open mind, only because I am not satisfied that we have all the facts yet.

I also agree that many people (maybe including the Mccanns themselves, maybe not) have used this case as an excuse to indulge in racism and xenophobia against the darker-skinned races, just one example being the numerous "sightings" of "a little blonde girl being whisked away by a scruffy looking Arab", etc, etc. Certainly, the "pro's" love their Latin xenophobia, and often indulge in descriptions of "fat, mustachioed police chiefs" and people saying "si seniour" on their blog!

Finally, yes, it was crazy to go into the Lion's Den! Don't think I'll be doing it any time again soon!

:-)

isis said...

viv, from my experience giving an intramuscular as oposed to an iv injection there is no blood splatter. The only way i have seen an injection cause a discernable blood splatter is if an artery is pinged accidently.

viv said...

Hi, Arguido status is explained well above, there are not two distinct types. It simply means you are an official police suspect under investigation and have the right to a lawyer when being questioned by the police and also have the right not to incriminate yourself by remaining silent, if you wish.

The right to silence is a historical legal feature when confessions were literally racked out of people e.g. The Star Chamber. In an attempt to humanise the law it was decided that such confessions are unsafe. If you are subjected to extreme torture you will say anything to get them to stop!

viv said...

Good point Isis

and there is not reason to give an IV injection to sedate, I suppose.

Viv x

Di said...

Hi Viv

Thanks for that, sorry missed the earlier post.

Wizard said...

DocMac or the much missed Dr_L,

If you’re around perhaps you could answer something that has puzzled me. Is it usual for a medical doctor on qualifying to flit, over quite a number of years, from one medical department to another, without finding an area of interest to specialise in? Kate was, I understand in anaesthetics, obstetrics, and general practice. These areas are quite diverse.

To me this appears unusual, but is it?

Bianca said...

CALCITE51 - It is clear to me that the pro's consider a "disruption" anything that does not accord completely with their pro-McCann dogma.

Like I said the other night, I believe the McCann case has drawn attention to broader issues of importance to society (the main one being attitudes toward child-care) and that that was what I was primarily interested in discussing. However, as usual, these broader issues were ignored and things simply descended into yet another "let's apologise for the McCanns" session. Not only are these apology sessions frustrating in their uniformity (with the pro's seemingly working together like hive creatures!), but they are aggressive and unforgiving toward anyone that dares express an opposing view!

There's no point trying to discuss ethics, child-care, or society's value systems with people who just want you to say "yes so, no sir, three bags full sir, poor McCanns".

Finally, I may "disappoint" you Calcite, but you guys frustrate the Hell out of me!

Bianca said...

CALCITE AGAIN - Well, Ana didn't come across as a nut to me, only as a person who has English as a second language, which, despite the despicable abuse she received for her spelling by the pro's, is not actually a crime!

calcite51 said...

When my daughter shows me how to download the video (probably tomorrow I hope) - it will give you all something to discuss - it has nothing to do with Madeleine but of another little girl which the legal system let her down terribly.

calcite51 said...
This comment has been removed by a blog administrator.
Gina said...

Calcite51 I did not see what Ana posted on your site yesterday so I have no comment to make on that. But if the avatar was as you suggested it sound to me like Arepa disappeared and Ana appeared. Without reading the comments I cannot make comparisons to the style, but perhaps you can and will form your own opinion.

Thank you for leaving me to make up my own mind. I will, and I have.

Bianca said...

LITTLE GREY CELL - You make a very plausible argument. It makes sense that the pro's are people with some kind of vested interest in supporting the McCanns (either monetarily or familiarly) as it would explain their unbending, dogmatic attitude toward defending this couple. All I would say about it though, is that if some of them ARE paid professionals, they were obviously not hired for their spelling and grammar skills, as much of what the pro's write could be mistaken for the work of an eight-year-old! (a good example is "Mandz" and her going for a "cupa" - a spelling hitch pointed out once before by Docmac!).

Anyway, no matter what is behind it all (I personally suspect Gerry makes more than the odd appearance over there - when "Rosiepops" becomes more masculine in verbiage and precise in grammar!), you are completely correct that you can never reason with them. To use a boring old metaphor, you may as well bash your head against a brick wall!

Take care.

Bianca said...

CALCITE - I did not even notice the avatar! But if it is what you said, then no, as a general rule I would not approve of such a thing or consider it normal, however, is there any chance Ana was trying to make a political or social statement with this image? Just asking.

viv said...

Calcite

I have no objection to you commenting on this site but I do object to you referring to posters as sick and I very strongly object to the suggestion we support executions. Nothing could be further from the truth.

Executions are unlawful throughout Europe as a breach of the European Convention on Human Rights in that it forms a inhumane and degrading punishment and also offends against the right to life. Murder and manslaughteer are barbarous crimes, it is no answer for the State to do just the same.

I have removed your post where you have made such comments and will continue to do so unless you can be both polite and reasonable.

Viv x

Bianca said...

GINA - your post about the events the other night on Alsabella's blog just confirm even more mine (and others) suspicions that there are people with "vested interests" on the pro's blog.

Certainly, they do not want to hear logic or discuss the issues. They just want to white-wash any discussion with their dogmatic defense of the McCanns and dismissal/hatred of the PJ. And you have to ask, if not some kind of attachment to the McCanns, what would motivate such seemingly unbending loyalty?

Bianca said...

Calcite

I have no objection to you commenting on this site but I do object to you referring to posters as sick and I very strongly object to the suggestion we support executions. Nothing could be further from the truth.

Executions are unlawful throughout Europe as a breach of the European Convention on Human Rights in that it forms a inhumane and degrading punishment and also offends against the right to life. Murder and manslaughteer are barbarous crimes, it is no answer for the State to do just the same.

I have removed your post where you have made such comments and will continue to do so unless you can be both polite and reasonable.

Viv x

Friday, 28 March 2008 13:57:00 o'clock GMT
=========================================


Excellent.

Zodiac said...

What about the constant statements in the Press by CM that ALL the Tapas lot would welcome the arrival of the PJ to the UK for interviews to take place and none of the Tapas lot would change their stories. Now is this a rumour started to make a Tapas member look bad, possibly the one that has supposedly aready given another statement to the PJ. The Team would not like that. If any of them do not co-operate it only makes them look more guilty than they do now.

Bianca - LOL! Regarding your scenario in your 11.39am post and the Monkey's responses. That is on a par with your fish supper scenario on the DE.

LittleGreyCell said...

Hello Wizard,

Sorry about the delay in replying, had a visitor.

Thanks for your kind comment!

Don't know why posters respond to them so regularly - I do, myself, sometimes.

I think it's because the 'Antis' - who are Antis in the first place because they value rational thought and logic - feel the need to explain the the nature of their rational thought. Because that's the rational thing to do when challenged.

And most of us - well, I must only speak for myself, I suppose - joined forums to DISCUSS the mystery and are therefore up for a bit of considered dissent and polite argument.

Ah well. Can't say we didn't try.

I was going to respond to your post earlier about Scott Cappuro. The Times piece didn't say what his Madeleine 'jokes' were about, but even I would take exception to plain old 'jokes' about a missing, presumed dead, little girl. Many people - even 'comedy professionals' - fail to understand the difference between jokes and satire, and that the latter has to have an underlying point that is made in an ironic or sardonic way, or else it's not satire. The main point of satirizing something is to make a point about it!

Anyway, some Pros are either so dim or so well paid that they refuse to acknowledge this, and express complete outrage at anything that has any degree of levity about it, full stop. Still, Private Eye doesn't seem to be doing too badly without their subscriptions.

(Would love to observe one of these Pros stuck in a lift with Ian Hislop. Ah, a girl can dream...)

:)

isis said...

viv, iv sedation is usually only done in a hospital setting or in emergency treatnent as in the case of a doctor attending an accident scene. Oral sedation is much easier and oral preparations such as phenergan are easily available over the counter, i used phenergan when mine had the chickenpox as it stops the associated itch and it did have a sedative effect.

Zodiac said...

Calcite51,

The NSPCC have a video of neglected and abused children that they show regularly on UK TV in fact there is a little boy in it that cries and cries but knows no one will come.

Bianca said...

Philomena McCann, Gerry's sister, came on Sky News and categorically stated that PJ had offered Kate a deal saying if you confess to accidentally killing your daughter, we can offer you a light sentence of say two years or maybe even less.

Kate's lawyer was forced to point out the next day that no such deal had been offered.

In short Philomena is a blatant liar. I have a feeling she has always wanted to lay the foundations in the public's mind that it was Kate, not her precious little brother...she has also slyly stated that Gerry never liked to leave her alone with the children, if he had to go away he got the grandparents to go and stay. I believe her intention was to make plain, Kate is unbalanced and not safe to be left with the children. That may be so, but it does not excuse her brother, arranging to dispose of the corpse or selling Madeleine's image to the public and the highest bidders, or extracting libel damages out of the Daily Express.

Also the question has to be asked, what made Kate ill, I have a view about that!

Friday, 28 March 2008 12:58:00 o'clock GMT
=========================================


Hi Viv,

This is intriguing! I didn't realise that about the lawyer coming out and officially denying Philomena's bribery claim. Also, the way you describe it, it does certainly seem that Philomena has been trying to protect her brother.

Finally, what is your theory as to why Kate was sick (when, by the way?) .. I'd be very interested to read it!

isis said...

Wizard , doctors have to do an internship leading to senior house officer leading to registrar,senior registrar then consultant. They usually practice a few diciplines before settling on a chosen field. The phases i mentioned above apply to all specialities, medical, surgical, obstetrics, orthopaedics and so on.

Bianca said...

ZODIAC - Hi, long time, no see!

Not sure what you are referring to by the "fish supper scenario". Sorry, but have a memory like a sieve sometimes!

:-)

viv said...

Isis

Thanks so much I only just saw your reply. The thing is Madeleine ran away from her at bedtime and Kate is a qualified anaesthitist, plus this is undoutedly the main kind of theory as to causation of death PJ were looking at.

Also the evidence the twins were drugged seems almost irrefutable to me. Police officers stating that in spite of Kate's screams the twins slept on, then they were carried to another apartment, still they slept on. This is just not natural, children do wake in the night when they hear alarm from their parents. This is why so many children suffer such extreme trauma from domestic violence which so often happens late at night or in the early hours.

People with mental health problems or personality disorder are known to be restless in jobs, in life generally, flitting about e.g. from one country to another, one job or chosen career path to another. I am not an expert but it seems to be doctors do adopt a career path early on, they either choose to be GP's which can offer autonomy when getting to senior practitioner level or own right practice, or they go into a specialist field with the view to obtaining consultant status as early on as possible. Seems to me though Gerry would have decided that was his career path..

Di said...

Zodiac

I cannot watch the NSPCC advert without getting upset.

I am sure there are many children left in that position, unloved, unwanted, hungry, desperate for someone to pick them up cuddle them and make them feel safe. It is so sad.

docmac said...

Wizard re flitting about between disciplines:

No, that would not be that unusual. My 1st wife did just that, switching between internal medicine, paediatrics and oncology before becoming a GP. If memory serves (may be wrong), Kate did O&G in NZ. It may have been the only post available to her at the time. She was a registrar in Anaesthetics but she dropped out (reason unknown). These days the newly qualified doctors are going to snap up anything they can get, as there is a shortage of available training posts. Over 1000newly qualified doctors are going to be out of a job in 2009. The cause of this is a political one and I'm not going to get into that one! Suffice to say that the NHS is going downhill, and fast. Too many cooks...

Wizard said...

Hi Docmac,
Thank you for your full reply.

isis said...

viv, there are indees docs who from day one aspire to consultant status in a particular field,gerry may well be one of theose hi achievers , i dont know. I have a few female friends who are gps , this being their chosen field as the hours are not as long the on call is not as bad and it affords them family time. As for sedation , it could well be that children who suffer from heat rash or other allergies may be given an abtihistamine to counteract symptoms of such. Antihistamines have a sedative effect as they for the most part contain diphenhydramine.

Zodiac said...

Di,

It is a sad advert. Such a sad reflection on Society also. This advert actually makes one think. Why are two child neglectors who are still Arguido/a being used in implementing an Amber Alert in the UK. Really it should be their faces implementing a G & K alert throught the World to be aware that when they are on holiday there kids could be left alone while they are out having dinner, IMHO of course. They claim an Amber Alert could have saved/located M, paying for a babysitter would have protected M, IMHO.

Wizard said...

Isis – thanks for the information.

LGS – Lift scenario RP, JaneGT and Hislop?

LittleGreyCell said...

Bianca,

You're right, some of the Pros appear to have the maturity of my cats (and I'll bet they're not much cop at catching voles, either).

This is due to a few reasons, in my opinion:-

1. Anyone without a vested interest who genuinely believes that K&G really don't have any case to answer can't be that bright.

2. Would intelligent people - even those with a severely limited capacity for morality - post the abusive, bullying rubbish that we see from certain Pros, even for money?

3. Consider who is in dire need of money:-

Students (not all of whom are necessarily known for their maturity); people who can't get any other type of work for one reason or another; people with personality disorders...

I'm sure I've left a few off the list but you can tell quite a lot from the peoples' posts, which is obviously how we know - to the complete surprise of Team McCann! - that there are several 'pops' that constitute one Rosie.

And furthermore, it says something about Kate and Gerry and the people around them that they are happy for this type of thuggery to be carried out in their name.

LittleGreyCell said...

Wizard,

It would have to be a bl**dy big lift to fit all the Rosiepopses in there...Max 47 Persons, do you reckon?

Di said...

Zodiac

Could not aggree with you more.



Sweetpepperspray has put this on 3As 24 Horas today..







"There is scarce evidence for an accusation

The Policia Judiciaria and the Public Ministery have scarce evidence to incriminate the McCann couple in the death and presumed concealment of Maddie's cadaver. And, according to a judicial source, they have even less against Robert Murat and his former partner, Michaela Walkzuch. Against the Russian Sergey Malinka there is... nothing. The analyses to the computers that were apprehended from him, as well as to those from Murat, failed to add anything to the investigations.

The Public Ministry is convinced that Maddie suffered a fatal accident at the apartment at Praia da Luz - it cannot be explained whether inside or outside - and that the parents got rid of the body, based on the searches that were performed by dogs on the vehicle that the couple rented 25 days after the disappearance of the child, where 'cadaver odor' was detected.

"It's little for an accusation. But the new interrogations may clarify many things that remain obscured. Let's give time to time. For now, the arguidos remain as suspects of the commitment of the crimes, at least, of death by negligence and concealment of a cadaver. Not even homicide can be set aside for now", a source that is connected to the process has concluded."


This confirms what I have been saying all along- enough evidence to make the police suspicious, but not enough evidence to get the Prosecutor to charge them with an offence with any likelihood of a Court convicting them.

Di said...

Zodiac

Please excuse my spelling, I should have said agree.

Bianca said...

Popular theory ..

.. Just out of interest, I thought people might like to know that after talking to a variety of friends, family, and work colleagues about the Madeleine McCann case, the most popular theory I have heard so far is that Kate sedated Maddy, and then Gerry, not realising Kate had already given her a dose, gave her another dose - thus causing her overdose and accidental death.

Yes, it quite surprises me how many times I've heard this theory repeated, often from unrelated parties.

It's depressing, but intriguing also that so many people think Madeleine was overdosed. Most people also conclude that both mother and father got rid of the body, probably by driving it in the hire car and then dumping it in the ocean (I cross my chest to even think of such things).

Di said...

Bye the way

The last paragraph was not from me but sweetpepperspray.

Di said...

Bianca

I have to say the sedation theory is one I go along with but, if she died of an overdose how does that explain the finding of blood etc., in the apartment. Just wondered your opinion on that.

Zodiac said...

Di,

I should have said Amber Alert in UK/Europe.

Whilst I read the Blogs and 3 A's etc. I treat it all as speculation except the neglect, that is a fact. I put my faith in the PT Police and British Police, when a live broadcasted statement from the PJ tell me there is no evidence etc I shall listen to that, until then we do not really know what the PJ have and I do believe that the spin is trying to make it seem like nothing, wishful thinking by certain parties, IMO. I do not believe the McC's & Co know any of the firm evidence, statements etc and that is what they do not like, mere Joe Publics not being able to control the investigation. The DE apology is an example of that IMO. Look at the public reaction, not quite what they expected, IMO. We are not as gullible as the Team like to think we are. BBFN

Bianca said...

LGC - "Several "pops" that constitute one Rosie" ...

Hilarious, LOL!

viv said...

Hi Di

Isis posted earlier on there could be blood spray if a vein was hit, or I think that was what she meant. She also said that doctors in hospital do give IV injections, this could also give blood splatter, I think, particularly if someone was struggling..there were only a couple of tiny spots found I think when they moved the sofa and on the window ledge near the sofa. Keela had first parked herself there indicating a find then she homed in when they moved the sofa.

isis said...

Di, sorry for buting in , if madeliene had been given anything to sedate her i dont think she was overdosed, she may have woken her little head muzzy from the effect of medication, all those appartments have hard flooring, she may have wanted to use the toilet and fallen banging her head on the hard floors , leading to bleeding. This is all speculative ,i dont think that madeleine was sedated on purpose but may have been given something to aleviate the symtoms of hay fever. In some of the pics she does appear to be a little puffy around the eyes which is a symptom of hayfever,

LittleGreyCell said...

Bianca,

Ta!

;)

Anonymous said...

Got anything useful to say or is your only topic of conversation a non-existent penguin and the pros? Just leave them alone - they're not bothering you.

A comment like that makes you sound about 2 years old. Pathetic if you are a grown whatever, honestly get a grip.
_________________________________

LittleGreyCell said...
Bianca,

You're right, some of the Pros appear to have the maturity of my cats (and I'll bet they're not much cop at catching voles, either).

isis said...

viv, an artery. The blood pattern from an artery wouls be spraylike in pattern.

viv said...

Seriously a lot of us have thought there have been various contributors to the character Rosiepops although it is normally the same one. There was a semi-illiterate stand in when Clarence Mitchell was giving his lecture at the LSE. Also several months back there was a really clever one giving details of the legal duties of the fund director. The main Rosie character displays a dismal lack of knowledge on law!

A couple of the posters display serious mental health problems - Christabel/Supertroll etc and JaneGT. Some are racist and personality disordered, Alroy/Dobywallah, Rosie (the usual one) and Mum 21, others just plain ignorant thugs, Mandz, Sassy.

It is a very good question posed by LGC what does using this bunch of thugs/family members say about Kate and Gerry McCann? Speaking of family members, I am quite sure that Old Hippy was one of the sisters but she has given up, in despair, having seriously lost it one day on the DE having about 20 posts removed. Calcite I believe is in the Aunt in Canada. Mark may well be the young lad/family member who designed the original web page and is semi-illiterate..certainly not a dentist!

OpusThePenguin said...

Anonymous,

Non-existent? Moi?

I think this post speaks for itself, Anonymous.

Do you fancy a non-existent herring, by-the-way? Doesn't smell at all...

Bianca said...

Hi Di,

I know! Questions, questions, questions! Just when you think you've settled on a theory that suits you regarding this case, another question crops up for you to answer!

Honestly, I don't know. I'm not even sure if I subscribe to the death-by-sedation theory (or death by her parents hands at all!), although I AM convinced they were in the habit of sedating their children (considering that the twins apparently didn't wake up when Kate was screaming that Madeleine had gone missing, and considering that they often left the children on their own .. why weren't they worried the kids would wake up and get scared? .. and finally, considering that Kate is an anesthetist!).

About the blood, all I can think is that maybe they panicked when they realised they couldn't wake Maddy up, and shook her, possibly hitting her head against a wall. I really don't want to visualise something like this too closely, really, it is horrific, but in a situation like that, it's possible that the panic was overwhelming and brought out a hectic, frenzied response.

Again though, I'm still unsure as to which theory I most subscribe to, i.e., abduction or manslaughter (rarely consider "murder", although some people have suggested it and I have considered it. Very unconvinced about it though).

viv said...

Thanks Isis,

law much more than medicine:-)

An artery would cause blood splatter, got that now!

viv said...

OPUS

Do you fancy a non-existent herring... does not smell


LAUGHING ME SOCKS OFF

LittleGreyCell said...

Anonymous,

You're right, the Pros don't bother me at all, even when they write 'ludicrous' stuff like I watch the Teletubbies all day, and go in for vanity publishing. Not very witty, is it?

And you don't bother me either.

So I'll just continue to post on this blog which exists due to very real Freedom of Speech, and you can like it or lump it.

OK?

(Personally, I think that's quite a useful thing to say).

;)

viv said...

LGC / OPUS

I am sitting here in my darkened room, screaming at Luke for a cup of tea, chain smoking and wondering which of my voices I should post under next:-)

Peneope1 said...

I really hope they do get caught and take responsibility for child neglect, and for the fact that this neglect is a direct cause of Maddie's demise.

Can you imagine the media hell with will break loose if they are charged and convicted? All those silenced journalists, the DE will be ready to extract revenge for the recent libel case...not the mention the "Fund".

No wonder the Pros are getting so aggressive. We do not know what evidence the PJ have, but I saw a letter somethere on the internet from a women who was on holiday in the Ocean Club during Maddie's disappearance and apparantly every single holiday maker was interviewed. She overheard staff complaining about the McCanns a night or so before Maddie went missing, when they had to drag Kate and Gerry out of the bar at midnight as the children were alone and crying....Tapas 9 vs Ocean Club 400.

If the PJ didn't have enough evidence they wouldn't be wasting their time in coming to the UK.

A friend who is a private investigator ex-CID in the UK says that the British Police are determined and that the Tapas 9 will crack.

Bianca said...

ANONYMOUS - Quite obviously, the penguin exists. And neither I, nor anybody else on this blog, needs scum-bags like you coming in here and telling us that the penguin isn't real. How dare you, How DARE you say this .. you are sick .. and you don't have the right to say this penguin, in fact, nobody EVER has the right to say a penguin (or any other bird, for that matter) isn't real unless they have the FACTS to prove it! That's right you piece of cow dung, FACTS! You come in here saying this lovely, innocent penguin is "non-existent" (what a sick, disgusting word!) .. Ha! links please! Just because you can't see a penguin in your immediate line of sight, doesn't give you the right to say it doesn't exist! I suppose if I threw this penguin at you one dark, and cloudy morning you would STILL say it doesn't exist?? Believe me "anon" (if that is even your real name!), you're nowhere NEAR as smart as you think you are!

Now leave us all alone so we can have a cupa and some siggaretts!

isis said...

Bianca, i dont believe there was an abduction ,neither do i believe that madeleine was killed by either of her parents. I believe that she died accidently in app5a for whatever reason, as for what happened next.... well we will just have to wait and see what the tapas lot say... if anything. What i do know is that it would not have happened if either of her 2 parents had been in the appartment that night instead of dining with friends.

viv said...

BIANCA

Absolutely hilarious! I love it - what a fantastic charicature of those idiots!

Luv Viv:-)

Bianca said...

VIV - I believe that Old Hippy now posts as "OnTheFence". Old Hippy always described herself as a "fence-sitter", and when I read OnTheFence's post in here just then (but I think you deleted it?), it seemed to be very much in Old Hippy's writing style.

Bianca said...

BIANCA

Absolutely hilarious! I love it - what a fantastic charicature of those idiots!

Luv Viv:-)
========================================


LOL, thanks VIV .. couldn't resist!

:-)

Anonymous said...

Viv,
I apolgise you to pop in here as an( another)anon.



Just want to express my view point on what soem posters here have already said about those fictional characters on the other site.
They think they are clever but are no more than just manipulated puppets.
They are always looking for news that can discredit the PJ. I made a comment yesterday after reading this:

Rosiepops said...
Have you read this? What do you think?

http://www.portugalresident.com/portugalresident/showstory.asp?ID=25541
27 March 2008 20:43

Sass said...
Rosie

Weird!
27 March 2008 20:48

Sass said...
Rosie

Sorry don't get the connection. The link you gave was about a woman found dead in her Algarve home!
27 March 2008 20:56

Rosiepops said...
I don't know the ins and outs of it, but I am wondering just what constitutes as a suspicious death or abductions in Portugal?

This woman was only about 40 and she was fund dead outside her home with blood around, yet seems to me that the PJ did not call in a coroner but just covered her with a sheet, while they apparently said there were no suspicious circumstances.
The reason she dies was because she was mentally impaired and had a car accident two days earlier?

Just seems t me that all the PJ want to do is as least as possible! Anyone dying or disappearing is an annoyance.
27 March 2008 21:00

Sass said...
That happened on March 20th and on the 25th the embassy still hadn't been notified. Super speedy, aren't they!
27 March 2008 21:05

Mum21 said...
Rosie,
Did they not call out a doctor to certify cause of death?
27 March 2008 21:05

Rosiepops said...
Mum

I don't really know, the article said that she was treated in Beja hospital 2 days previously.
sounds suspicious to me, it is not normal to find 40 yeard women dead in these circumstances.

very very odd, may be more to it than they have put in the paper, but looks odd.
27 March 2008 21:2

chinadoll said...
Was I seeing things, or did I just spot a glimpse of a Parasite?

Not to worry, I think it has been swatted.
27 March 2008 22:20
__________________
This last one was their comment after having removed mine .(just because i compared the statue near the front door to someone's avatar in the DX)

They are in fact PARASITES.

Keep the good work here in this blog.
PT

Bianca said...

ISIS - So what you are saying is that Madeleine came to harm (slipping and falling? Drinking medicine?) while left to her own devices in the hotel room?

Yes, this is another theory that like so many, DOES seem plausible! And again, the fact that she was even LEFT in such a situation where such an incident could plausibly have happened, only demonstrates again her parents shocking lack of care.

viv said...

Penelope

If I could just stop crying with laughter at Bianca's post for a moment, yes I have always said this.

If they did not have a case against these two they and the British Police simply would not be bothering, it would have long since been dropped. The expense involved here is inestimable and the resources in terms of very high level police man hours, Dr Rebelo and Det Super Prior are there to deal with serious crime and book the suspects, not mess about on an enquiry they will then shelve.

The suggestion by the pros they are coming here just to tie up the loose ends is simply hilarious...they would send the second most senior Police Officer in Portugal, and a team, just to do that!

There is no such thing as tieing up loose ends, either they have a case they are proceeding with or they do not!

That is the purpose of the investigative judge, if he had thought there was no point on the basis of the evidence collected so far, he would have stopped it. He authorised it to continue on 3 January. They quite clearly mean to see this through and the three who they initially wish to interview could be looking at several years inside. I would estimate OB 8 years, Tanner and Payne 3-5. They will be simply terrified. The weight of all those holiday residents and staff evidence is clearly against them and what of Mrs Fenn!

The other point is that mobile phone technology when investigating crime now is devastating. They can plot all of Gerry McCanns movements within a few metres, they can retrieve deleted text messages and they can tell every number he called. They can also recover every deleted email. They even managed to recover information from bomb damaged hard drives in Iraq. No matter what he tries to do that technology he so loved he will be his undoing.

Gina said...

Bianca Isis

I saw some were talking on here about the abduction theory but question the blood. Is it possible that the blood was merely due fall or something earlier, Kids do have accidents even when we are standing right next to them.

If she had an accident which resulted in her death, then I cannot see the logic of the McCanns covering that fact up even if she was alone at the time. Let's face it Gerry told everybody they were out. It is all very confusing I am going around in circles because if they are innocent why is everybody keeping quiet now (as we discussed earlier).

Zodiac said...

Penelope1,

Your 15.23pm post,

My thoughts also. I read some posts from the woman who was on holiday, she sounded genuine the things she wrote you can imagine being the case. I know if I were on holiday and witnessed that kind of behaviour and the result of it I would tell the Police everything I knew. The Police would not need to come to me I would be going to them. Children are not fashion accessories.

Isis,

Your 15.28pm post I agree or if their children had some form of childcare ie: a babysitter or used the free creche.

I really do feel that attacks from the Pro's are due to things not going how they anticipated.

isis said...

Bianca, yes i believe that madeleine came to harm in the appartment and this almost certainly would not have happened if her parents or at least one of them were present.Accidental death is what the pj believe hapened also.

viv said...

Hiya

I have always found it impossible to believe Madeleine came to any harm whilst they were at the meal for a number of simple reasons.

Firstly, Eddie the cadaver dog could only pick up the distinctive chemical odours from a corpse once the victim had been dead for at least two hours. The McCanns went out in between 8.30 and 9 but by 10 the body had gone. There was simply not enough time for her to have died whilst left alone and let us not forget they had to arrange to scrub the apartment and remove the body. It seems to me that it why OB was missing between 9.30 and 10.15 and Gerry gave himself an alibi calling the instructor to join them at 9.30 - calculating and just too obvious.

At 9.05 he wanted to start work damaging shutters etc to fake a break in but Wilkins interrupted him, the plan started to go disastrously wrong. Gerry even commented on Panorama it was the first time he ever saw anyone in the vicinity..he clearly did not anticipate that interruption. It was low season in early May and the resort would have been pretty quiet.

isis said...

viv, i take your point but i just cannot get my head around that.

Anonymous said...

On TVI two crime commentators compared today Mari Luz case to Maddie's.They stated in the first case the alleged killeronly needed two hours to dispose of the body using a shopping trolley. And he was alone or with his sister.

PT

Gina said...

Isis you are not alone, but you are ahead of me, I cannot get my head around any of it, and that is not all I still can't get my head around this bl...dy computer either. My friend's 50th Birthday is looming and what I am doing for her is likely to be recieved on her 65th. Think I had better concentrate on that alone for a while

Di said...

Just looking back in.

Isis/Bianca

Sorry missed your earlier posts, I do tend to go along with the sedation theory. Possibly Madeleine woke up and went looking for her parents and either fell down the steps or fell inside the apartment. Although I think someone said once that Madeleine would not have been able to open the patio door, if it is true that it was unlocked, as it was too heavy for a child of that age to open. If the door was locked which I believe it was, as this was what Gerry first stated, then when the PJ said the shutters had not been jemmied, he changed his statement,which means Madeleine came to harm inside the apartment.

I have never truly been happy with the abduction theory. However, I would not like to say or think that Madeleine's parents could have murdered her, I would like to believe it was a terrible accident.

All that said, I would like nothing more to be proved wrong and for Madeleine to be found safe.

Di said...

Should have said than to be proved wrong.

Anonymous said...
This comment has been removed by a blog administrator.
OpusThePenguin said...

Dearest Bianca,

Thanks from the bottom of a grateful penguin's heart for your vehement defence of my existence.

I mean, if the Pros could provide a link, or could otherwise "PROVE IT", I might be persuaded that there was indeed some doubt as to my existence, but as matters currently stand I feel we must go with the status quo, which means I am innocent until proven guilty.

Else, where would that leave the barman who swears blind he served me and my friends with 14 bottles of herring cordial?

Or my plans for a world tour, taking in the President of the United States, the Pope, Elton John and Mickey Mouse?

Not to mention my legal team from Farrer Fawcett and Major, who are currently working on plans to sue everyone who wears a so-called 'Penguin Suit' for the very serious crime of identity theft?

Goodness, sometimes I feel like a fish out of water...

Much love,

XXX Opus :>

Zodiac said...

Having just read the 15.47pm post it has become perfectly clear why the PJ are coming to the UK, they are coming to personally invite Inspector Doseypoops to PT to train their GNR and PJ officers as her powers of deduction are outstanding and they need him/her in PT to control their ongoing live investigations. I believe the trainers of Eddie and Keela are desperately trying to locate the poster Mandz so that she can retrain Eddie and Keela along with the other dogs Morse and Lewis. Thank goodness for these two fine upstanding examples of Pro's.

isis said...

Gina, stick with it you will get there !!

Di said...

Viv

Just read your post to Isis.

With all the points you have reminded me of yes, it does seem plausible. Can you remember who it was that said they saw Gerry tampering with the shutters?

LittleGreyCell said...

Di,

If Viv will forgive me for butting in, if memory serves, I believe it was Jeremy Wilkins.

Di said...

LGC

Thanks for that, can you remember the time he was spotted?

LittleGreyCell said...

Di,

Must have been around 9.15pm, I think. Gerry was back at the Tapas table around 9.30, 'cos that's when the quiz woman was invited over to the table...

Bianca said...

"I saw some were talking on here about the abduction theory but question the blood. Is it possible that the blood was merely due fall or something earlier, Kids do have accidents even when we are standing right next to them."

"If she had an accident which resulted in her death, then I cannot see the logic of the McCanns covering that fact up even if she was alone at the time. Let's face it Gerry told everybody they were out. It is all very confusing I am going around in circles because if they are innocent why is everybody keeping quiet now (as we discussed earlier)."

Friday, 28 March 2008 15:54:00 o'clock GMT - [quoting Gina]
============================================================


I know what you mean Gina, kids hurt themselves all the time and the weirdest things happen. As far as blood splatters - we had a child come into our place one day to play with our child (school friends). Anyway, game got a bit rowdy, and my child (don't like to specify gender over the internet) accidentally slammed this other child's hand into the linen-closet door (the child had been hiding in there as part of Hide n' Seek). This kid screamed, and I soon realised that the top layers of skin on two of (said child's) fingers had come off and cut quite deeply (the tops of the fingers look chopped, like one would clip a hedge!). Though it was obviously an accident, my child was pale-faced and shocked, having never been responsible for anything like this before, and not expecting the results of the mis-judged door-slam to be this bad! I quickly raced the visiting child into the bathroom, where I proceeded to apply a pressure bandage to their fingers in order to control the bleeding! I felt very bad, very guilty, and was even worried about being sued! However, when said child's mother (a registered nurse) showed up to collect her charge, she had a look at the damage, and although agreed it was pretty nasty-looking, said it wasn't actually as bad as I may have thought! She said it was a pretty run-of-the-mill accident (to my surprise!) and that it wouldn't require stitches (Thank God). And low and behold, a week or so after the accident, the child returned to our home to play, and when I looked at their fingers (still with some guilt!) I saw that they were almost completely healed!

But here's the thing. Though I'd realised this child had been bleeding, I thought it had been "controlled", in the sense that it had dripped onto their arm (before I bandaged it, of course) and some onto (mainly, the bathroom) floor. Furthermore, I thought I had cleaned it all up. But what surprised me was how much blood I found in the days, and even weeks afterward, and WHERE I found it. Tiny specks of blood were on the walls, around door handles, and kept showing up on the floor - not just the bathroom floor, but in other rooms as well. How did it get in these places? And why all the tiny droplets? I tried to recall the incident in my mind, but could never account for, example, spots of blood on the wall! Eventually it was all cleaned up, but it always intrigued me.

Having said all of this though, in the case of the McCanns, why wouldn't they simply have TOLD the PJ if Madeleine had had a simple, household accident? Like you say, Gerry told everyone she had been left alone, so why leave out something like this if it helped account for potentially damning DNA findings??

LittleGreyCell said...

Much as I - together with my non-existent penguin - would love to stay, we have to be somewhere else now.

So we're off in our non-existent car (MUCH cheaper to run than an existing one!) to somewhere that isn't there.

Back later!

X

Anonymous said...

Zodiac said...
Having just read the 15.47pm post it has become perfectly clear why the PJ are coming to the UK, they are coming to personally invite Inspector Doseypoops to PT to train their GNR and PJ officers as her powers of deduction are outstanding and they need him/her in PT to control their ongoing live investigations. I believe the trainers of Eddie and Keela are desperately trying to locate the poster Mandz so that she can retrain Eddie and Keela along with the other dogs Morse and Lewis. Thank goodness for these two fine upstanding examples of Pro's.

Friday, 28 March 2008 16:17:00 o'clock GMT

LOLOLOLOLOLOLOLOL

PT

Di said...

LGC

I had not realised it was when he was having a chat with Gerry Wilkins.

Don't you think it is rather odd for Gerry to be checking the shutters on that particular night, when he was more than happy to leave his children night after night, and even go to Chaplins, which is not, as they have described the Tapas bar as like being in your back garden. No in my opinion, if you were wanting to make sure the place was secure you would check the shutters BEFORE you go out.

Bianca said...

To Opus the Penguin .. LOL!

When you explain it THAT way ....

;-)

Bianca said...

See you LITTLE GREY CELL! Have a good evening (even though you are not real and neither is your penguin).

LOL! Take care ... :-)

dylan said...

Hi,

Have been trying to catch up. So many posts today.

Bianca, sadly, an Indian mother took her own life with her two children on a railway track, last year. No-one knows why she did it. It was all very sad. I suppose in some way, a person who is that disturbed, somehow thinks that he/she is taking their children with them to a better place and doesn't want to go without them.

Calcite, i can assure you that without a single doubt, none of us support execution. I was horrified at the Afghan man's imminent execution for downloading literature on women's rights, in a Muslim country as it was deemed, in some way to go against the teachings of the Koran. Viv and I both signed the petition in the Independent to halt this. There was also a recent drive to stop a gay man from certain execution if he was sent back to his home country. I can't say i am a human rights activist as such but i have donated to amnesty international for years and fervently believe in human rights. Rights for all.

Viv, I was shocked at Hogan's sentencing also. I never could comprehend the "diminished responsibility" or "not of sound mind" to lessen the severity of the sentence. As a non legal person and non-psychologist, my very amateur opinion is that anybody that murders, is not of sound mind? If they were, then surely they would have the moral guidance that tells them they are wrong?

I read that he and his wife had argued and they were drunk & he did what he did. Of course he wasn't himself, despite his medical history, but the fact that the drunkeness and anger lead him to do this, tells me he is dangerous and in the same arena as any other murderer who is locked up for life. Whether it was pre meditated or not. I just can't get my head around it. The law might as well have said that Fred West wasn't evil but just insane and given him a couple of years in a sanitorium.

The big question is whether evil is culpable or insanity and i believe that the two can very much go hand in hand. So where do we say what is immoral and wicked in the eyes of the law and what is just down to a moment or several moments of madness? Maybe you can answer the question that i have long pondered!

Dyl xx

PS Gina - glad you are here posting as yourself today. x

Gina said...

Actually Bianca, I did not mean the abduction theory I meant to say the sedation theory and were trying to explain the blood. Hell what am I going, I keep reading you all and getting involved when I really should be doing something else, Putting a blind fold on now ;.)

Gina said...

Hi Dylan, saw you before I put my blindfold on. Hope to speak later if I have not kicked the poo out of my computer my then lol

Zodiac said...

LGC,

ROFLMAO, just looked at pets corner. LOL!LOL! Have a lovely evening.

PS. My daughter wants to know what I am laughing at.

Zodiac said...

Gina,

I find a hammer helps me with all of my computer problems. It always makes me feel so much better.

Di said...

Bianca

I have just read your earlier post regarding the childs accident in your house. Poor you, it must have been a terrible shock. I see where you are coming from but, it has been said that blood was found under the sofa, on the window,and sprayed on the wall and curtains. I believe Kate said Maddie had a nose bleed, and also pointed out the accident on the planes steps.

Having had kids that were permanently having scrapes, I know how quickly accidents can happen, even when keeping a close eye on them. What I cannot understand though is if, it is Madeleine's blood, how on earth did it get on all these places.

Bianca said...

DI - again, another plausible scenario. Because what's to stop Maddy getting up drowsy (from sedation), then slipping over and hitting her head or something? Then again, I wonder what kind of head injury (simply from a fall) would cause the blood speckles found in the apartment?? A fall on the head could knock you out, even kill you, but would it cause a spray of blood like this?

Anyway, to digress from this gruesome line of speculation, I think that either A) the patio doors WERE unlocked, Madeleine WAS abducted, and Gerry panicked, thinking he would be charged with neglect, so lied about them being locked, or B) the doors were LOCKED, Madeleine died somehow inside the villa, and then Gerry tried to fidget with them (and the windows - see Viv's theory) to make it look look a break in and abduction. Personally, I am more inclined to go with theory "A", but nevertheless, I see these two theories as the only plausible ones as to why Gerry changed his story (ie., first "locked" and then "unlocked"!).

P.S. I agree. If only we could all be wrong and miraculously, Madeleine found safe and well! Sadly though, I am not holding my breath.

Anonymous said...
This comment has been removed by a blog administrator.
dylan said...

Lol, Gina, goodluck with the poo!

Zodiac, Isn't Opus a star? I defy anybody now to say that he doesn't exist!

x

hope4truth said...

HELLO ALL

Just read back some intresting stuff xxx

Bianca said...

DI - Certainly, the amount of places that Madeleine McCann's blood was allegedly found does seem odd! As you say .. how WOULD it get there? Particularly under the sofa ??? And if Madeleine fell walking up the stairs to the plane, why would the blood be in the hotel room?

dylan said...

Anon, considering what the woman is charged with having done to her daughter and imprisoned for, I can't feel any pity for the injuries she has sustained. If she has any remorse at all, her black eye would have been the least of her worries.

What is your problem with Docmac? Why do you have to constantly attack his genuineness? Obviously you DO care whether he is for real or not otherwise you wouldn't bring it up over and over agian.

x

Anonymous said...

viv
i think you will find that inferences re right to silence are not as simple as yoi think .
Silence itself is not an inference of guilt . However if a defendant at trial answers a question that they originally remained silent on the judge may direct the jury that this is an inference of guilt .
Even at this stage the judge may consider the Murray rule and direct the jury not to infer guilt in that particular instance depending on the circumstances of the refusal to answer questions .

Bianca said...

Hi Hope4Truth, how are you? Hope you're well :-)

hope4truth said...

Hi Bianca

I have been reading back loved your posts...

I am fine had another lovely day and the weather has cleared up now as well...

How are you ??? xxx

docmac said...

Idiot Anon who never posts on here and who STILL can't spell LEONA:

I said Leona Cipriani had a skull base fracture. I did not offer an opinion as to how she might have suffered this injury. Try again.

Imaginary internet ward rounds? Sounds like fun. Have you got a link? Do you play? Can I win money?

Bianca said...

ANONYMOUS -

"Imaginary internet ward rounds"? Is that anything like Dungeons and Dragons??

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