SMITH BERNAL
No: 199808089/W4
IN THE COURT OF APPEAL
CRIMINAL DIVISION

1. LORD JUSTICE TUCKEY: On 17th November 1998 in the Bristol Crown Court before Astill J and a jury the appellant Donna Anthony, who is now aged 26, was convicted of two counts of murder and sentenced to life imprisonment. The first count related to her daughter Jordan who died on 1st February 1996 aged 11 1/2 and the second to her son Michael who died on 20th March 1997 aged 4 months.

2. Two of her grounds of appeal were referred to this court by the single judge; others have been abandoned. Although leave to appeal on the remaining two grounds has not formally been given, we have proceeded on the basis that it has. The first ground relates to the ruling that certain medical evidence was inadmissible. The second is dependent upon the admission of additional evidence from which the Court is asked to substitute verdicts of manslaughter by reason of diminished responsibility.

3. The case for the Crown was that the appellant had smothered both children. The defence case was that she had done no harm to her children. They died naturally.

4. In view of the grounds of appeal it is not necessary to examine the evidence which was given at trial in detail. Suffice it to say that the appellant's case was that each child suffered from apnoea attacks (episodes of not breathing). Jordan was admitted to hospital four times following incidents in which the appellant reported that she had stopped breathing. On two of these occasions the doctors found signs that she had suffered from trauma caused, so the Crown alleged, by the appellant smothering the child. However, although Jordan was carefully monitored no sign of breathing difficulty was detected on any of her admissions to hospital.

5. Michael was admitted to hospital for nine days immediately before he died. Again the appellant claimed that he had an apnoea attack but no sign of breathing difficulty was found whilst he was in hospital. He was discharged the day before he died -- in good health, so the hospital said.

6. Post-mortem examinations were carried out on both children which disclosed no cause of death, natural or unnatural. The evidence at trial was that the absence of signs that the children had been smothered was not significant.

7. The post-mortem on Michael was carried out by Professor Berry, a paediatric pathologist who reviewed the post-mortem report on Jordan. In an interim report dated 28th April 1997 he gave the cause of death in each case as unascertained by post-mortem examination alone and expressed his concern, recommending that the case histories and circumstances surrounding the deaths of both children should be reviewed by a paediatrician with appropriate expertise. This resulted in the instruction of Professor Meadow who is well-known, amongst other things, for his research into a particular form of child abuse which is known as Munchausen syndrome by proxy. This involves the fabrication of illness by a mother in her child, usually to bring attention to herself.

8. After he was instructed Professor Meadow called for and examined the medical and social services records of the appellant and her family, as well as the clinical evidence relating to the two deaths. In his report, which is dated 9th June 1997, based on the clinical evidence, he considered that each death was typical of smothering. He did not believe that either child had died of natural causes or was suffering from apnoea. Based on the other material, he went on to conclude that this was a case of Munchausen syndrome by proxy. In other words, the children had been smothered by the appellant to bring attention to herself.

9. The Crown also instructed Professor Milner who specialised in children's breathing problems. Without reference to Professor Meadow's report, he concluded in a report dated 16th July 1997 that it was:

"... very likely that these two children did suffer from recurrent imposed airway obstruction from their mother and died as a result of it."

10. Having seen the reports from Professors Meadow and Milner, Professor Berry produced a further report dated 20th July 1997 saying that following the post-mortem examination his opinion had been that both babies were smothered and that is why he recommended review by a paediatrician with special expertise.

11. The appellant was arrested and charged on 23rd July 1997.

12. The defence objected to the admissibility of that part of Professor Meadow's report which concluded that this was a case of Munchausen syndrome by proxy, based as it was, they contended, on prejudicial, irrelevant and hearsay evidence. They argued that it amounted to no more than evidence of propensity.

13. A voir dire was arranged in advance of the trial to consider the defence's objection. At that hearing before the trial judge the Crown agreed to exclude from Professor Meadow's evidence all reference to Munchausen syndrome by proxy and the material on which the conclusion was reached. They would simply ask Professor Meadow for his opinion as to how the children had died based upon the clinical evidence. He gave evidence at the voir dire confirming that what he said in the report was based only on that evidence. He stuck by his views under cross-examination by Mr Chatwin QC, who appeared then and he does now for the appellant.

14. Mr Chatwin submitted that the evidence of Professor Meadow should not be admitted. Essentially he argued that Professor Meadow's views must have been coloured by his conclusion that this was a case of Munchausen syndrome by proxy and yet the defence would be unable to make this point to the jury without reference to the very matters which the Crown had agree to exclude. The judge rejected the submission and Professor Meadow gave evidence at the trial in accordance with what he had said at the voir dire.

15. The first ground of appeal is that the judge was wrong to reject the submission. It is convenient to deal with this now.

16. Mr Chatwin has emphasised the importance of Professor Meadow's report. It triggered, he submits, the reports from Professors Berry and Milner and the arrest and charging of the appellant. By not being able to cross-examine about the excluded part of the report, he could not properly test the evidence which Professor Meadow gave. It also inhibited the defence in the way in which they explored the issue of intent since it was Professor Meadow's published view that in cases of Munchausen syndrome by proxy the mother did not usually intend to cause serious harm to the child (it not being contended that in this case the appellant had intended to kill her children). All this made the admission of Professor Meadow's evidence unfair and the judge should have excluded it in his discretion under section 78 of the Police and Criminal Evidence Act.

17. We do not accept these submissions. It is clear from the history which we have recited that Professor Meadow's report did not trigger the views of either of the other medical experts or on its own the arrest and charging of the appellant.

18. Counsel for the defence had a difficult forensic or tactical decision to take. Professor Meadow could have been asked about the whole of his report in which case they would not have suffered the disadvantages they now complain of. On the other hand, if they had taken this course they would have suffered other obvious and almost certainly greater disadvantages. But the fact that counsel was faced with a difficult tactical decision did not make Professor Meadow's evidence inadmissible or its admission unfair. The difficulty arose out of nature of the defence. Moreover, counsel was able to and did explore the point about the chronology of the reports and the question of intent to the extent of suggesting that the appellant might only have been wishing to draw attention to herself and was not intending to cause really serious harm to the children.

19. So we turn to the second ground of appeal. The appellant asks for leave to call additional evidence from Professor Cordess, who is a consultant forensic psychiatrist at Rampton, and Dr Harris, who is a chartered clinical psychologist. This evidence, it is submitted, should persuade the Court that the murder convictions are unsafe and that verdicts of manslaughter by reason of diminished responsibility should be substituted.

20. Both these doctors have prepared reports following interviews with the appellant after her conviction. In these interviews the appellant has vehemently maintained the denials which she has made throughout, asserting that she never smothered either of her two children.

21. The Crown had instructed Dr Stone, also a consultant forensic psychiatrist, to interview the appellant and prepare a report before trial. He has since prepared a further report in response to Professor Cordess' report.

22. At a directions hearing at the end of last year this Court (differently constituted) directed that any doctor whom either side wished to call should attend the hearing. We have of course considered the contents of all these medical reports. At the outset of the hearing we said that we would hear any further evidence from the doctors who were present which the parties wished us to consider without deciding whether or not to admit any additional evidence. Accordingly, we heard evidence from Professor Cordess, Dr Harris and Dr Stone, each of whom was cross-examined shortly.

23. We can summarise the effect of this evidence quite shortly by reference to section 2 of the Homicide Act 1957 which says that:

"A person shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from inherent causes or induced by injury) as substantially impaired his mental responsibility for his acts in doing the killing."

24. The doctors agree that at the time of the killings the appellant was suffering from a severe personality disorder of a so called histrionic type which amounted to an abnormality of the mind for the purposes of the Act. They disagreed, however, as to whether this abnormality of mind substantially impaired the appellant's mental responsibility. On this question only the evidence of Professor Cordess and Dr Stone is relevant. Dr Stone says:

"... because [the appellant] denies any responsibility for the offences it is not possible to say whether the abnormality of mind impaired her mental responsibility for the killings. This is because unless [the appellant] can explain why she killed her daughter and son it is not possible to link her personality disorder with her actions in committing the offences."

25. Professor Cordess did not directly address this question in his report, but in evidence he said that he had a lot of sympathy for Dr Stone's view. Unless the appellant explained why she behaved in the way she did one could not know whether there was link between the abnormality of mind and her mental responsibility for what she had done. However, based on his clinical experience he believed that it was very likely that there was such a link.

26. Both doctors agreed that the appellant had been fit to plead and give instructions to counsel at trial. It was not possible to say whether the appellant's denial was factitious(conscious) or somatised (subconscious caused by the personality disorder) but it was likely to be a combination of both.

27. Should this additional evidence be admitted? Section 23 of the Criminal Appeal Act 1968 as amended says that this Court may receive any evidence which was not adduced at trial if it thinks it necessary or expedient in the interests of justice. In exercising this discretion the Court must have regard in particular to:

"(2)(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 an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."

28. In a number of cases this Court has had to consider whether to admit additional evidence in support of a defence of diminished responsibility not raised at trial. In R v Ahluwalia (1993) 96 Cr App R 133 at 142 Lord Taylor said:

"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 trial not to pursue. Otherwise, as must be clear, the 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."

29. This was an echo of what had been said earlier in this Court in the case of R v Dodd (unreported) 10th June 1971 where the Court said:

"In the view of this Court cases, must be rare indeed when the defence have chosen to run at the trial as their only defence the defence of accident or provocation, or a combination of the two, and when that defence has failed can consult and call a psychiatrist, or a psychiatrist seeing the appellant for the first time many months after the event, with a view to getting a retrial to run a defence of diminished responsibility. It may well be that if subsequent evidence of diminished responsibility was really overwhelming, the Court might well feel moved to substitute a verdict of manslaughter, or order a new trial."

30. There can be no doubt that this Court has applied these principles rigorously to cases of this kind. Thus in Dodd itself, R v Melville (1976) 62 Cr App R 100, R v Kooken (1982) 74 Cr App R 30, R v Shaw [1995] 1 All ER 187 and R v Shah ( unreported) 30th April 1998 the Court refused to admit the evidence in support of diminished responsibility.

31. The Court did admit such evidence in R v Borthwick (unreported) 27th October 1997 and 19th May 1998 and in R v Weekes (unreported) 18th February 1999, but these were exceptional cases as the Court made clear. In Borthwick the appellant admitted the killing after conviction and the evidence in support of the defence of diminished responsibility was described by this Court as being:

"... so powerful ... that the Crown accepted that, provided of course this Court approves, that the appropriate course in this case is for there to be a substitution for the verdict of guilty of murder, a verdict of guilty of manslaughter.

We have no doubt that, in the light of the two [medical] reports ..., it is appropriate that there should be a substitution."

32. In Weekes the defence at trial had been self-defence. Although the appellant had been strongly advised to advance a defence of diminished responsibility, which the Crown would have been prepared to accept, he refused to do so. He relented after conviction. In allowing the appeal the Court said:

"We respectfully endorse all that was said in ... Shah and Ahluwalia as to the crucial obligation of a defendant to advance his whole case before the jury. We draw attention to the fact that in the present case the evidence of diminished responsibility was both unanimous and accepted by the Crown. If it were disputed by the Crown it would no doubt be very unlikely that it would subsequently be in the interests of justice to admit it in this Court, with the consequence that a retrial became necessary. Further, in the present case there is evidence both plain and undisputed that the defendant's decision not to allow the issue of diminished responsibility to be canvassed was significantly affected by his mental illness. That does not appear to have been the situation as the Court understands matters in Shah, though it was the case also in Borthwick. 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 the trial. The former case is, we think, likely to founder on the principles explained in ... Ahluwalia."

33. With these principles in mind we turn to the facts of this case.

34. The first point to be considered is the appellant's continued denial of any wrong doing. At the outset of the appeal we raised the difficulty which this creates for Mr Chatwin. How could he invite us to substitute a verdict of manslaughter by reason of diminished responsibility which assumes that the appellant killed both children when his instructions were still that she had not? Mr Chatwin had some difficulty answering this question. He had, he told us, informed the appellant of what he intended to ask for and said that his submissions were based on an acceptance of the jury's verdict that the appellant had killed.

35. We are by no means certain that this is a satisfactory answer to the question, but for the purposes of this appeal we are prepared to proceed on the basis that it is. Mr Chatwin's difficulty is illustrated by his acceptance that he cannot ask for a retrial because that would simply mean that the appellant would have a second chance to run the defence which has already failed.

36. The appellant's continuing denial is, however, relevant in two other ways. Firstly, is it necessary or expedient in the interests of justice to allow evidence to be given with a view to producing a result which she does not accept? It is for a defendant to raise and prove a defence of diminished responsibility, neither the court nor the Crown can do so. In Kooken, to which we have referred, the appellant had become a patient and was represented in court by counsel instructed by her guardian ad litem. In refusing to admit the medical evidence of diminished responsibility Lord Lane at page 35 said:

"In the end one comes down to asking oneself whether it is 'necessary or expedient in the interests of justice' to allow this evidence to be given. We are asked, properly, to act in the interests of this appellant but can it be in her interests to take a course which, albeit she is not mentally sound, she does not wish to be taken? Is it in her interests to call evidence she does not wish to be called? To achieve a result which she does not want? And a result which, apart from one respect, will have no practical effect upon the way she is treated, or her future or her disposal?"

37. Secondly, the continuing denial makes it much more difficult for the appellant to advance a reasonable explanation for the failure to adduce the medical evidence at trial (section 23(2)(d)). If the denial could be attributed solely to her personality disorder that would offer a reasonable explanation but that is not this case. This may on the medical evidence be part of the reason for the denial, but it is also likely to be conscious. In other words, one of the reasons for the appellant's continuing denial is that she is lying. Of course the fact that an appellant does not have a reasonable explanation for the failure to adduce the evidence at trial is not determinative, but in this case, unlike the cases of Borthwick and Weekes, the appellant cannot show that her personality disorder provides a complete explanation for the failure.

38. Turning then to the other section 23(2) matters. The medical evidence is capable of belief (a), but it is not on an issue which is the subject of appeal (c) since no such issue was raised at trial (see Melville at page 104 and Shah).

39. We can consider together whether the evidence may afford a ground for allowing the appeal and whether we should admit it as being necessary or expedient in the interests of justice.

40. We have already referred to one important point which is relevant to this aspect of the case. Equally important in our judgment is the fact that the evidence of diminished responsibility is disputed, or at best from the appellant's point of view is inconclusive on the crucial issue of causation (impairment). As the Court said in Weekes in the passage we have cited, where the evidence is disputed it is very unlikely that it will be in the interests of justice to admit it. There the Court envisaged that this would necessitate a retrial, but in our case it is conceded that this is impossible.

41. Finally the evidence relied on in this case only came into existence after the trial. That as the cases to which we have referred show is a further reason for not admitting the evidence.

42. Looking at the matter as a whole, for reasons which should be apparent from what we have already said, we refuse to admit any additional evidence in this case. Accordingly the second ground of appeal fails.

43. Finally, although this does not form a separate ground of appeal, Mr Chatwin sought to rely on a passage in Dr Stone's first report which, when dealing with Munchausen syndrome by proxy, said:

"The intention of perpetrators of this particular type of child abuse is usually to manufacture illness in their child in order that they will undergo investigations, often in hospital. In my experience, there is not any intention to kill the child or cause it serious harm."

44. But similar evidence could have been elicited from Professor Meadow as we have said when dealing with the first ground of appeal. For good reasons the defence chose not to elicit such evidence in this form at the trial. It cannot now be done by the introduction of additional evidence on appeal.

45. Standing back from the grounds of appeal, the evidence in this case that the appellant had murdered her children was very strong. We have no doubts about the safety of her convictions. This appeal must therefore be dismissed.