Gordon, R. v

Fresh expert evidence of a later diagnosis must be assessed by reference to the offender’s condition at the time of the offence and its likely effect on intention and perception then. A diagnosis of autism spectrum disorder may make spontaneous events harder to appreciate and respond to, but its significance may be reduced where the conduct was planned or similar events had previously been experienced.

Under section 23 of the Criminal Appeal Act 1968, evidence of a later deterioration, or evidence founded on an unreliable account of the events, will not undermine the safety of a conviction unless it credibly shows a material effect at the relevant time.

The applicant sought renewed leave to appeal against his 2011 conviction for murder at the Central Criminal Court. He had been convicted as a secondary party to the fatal stabbing of Nicholas Pearton during an armed confrontation between rival groups.

His original application for leave had been refused by a single judge. Other matters were refused by the Court of Appeal in R v Gordon [2017] EWCA Crim 2213. The remaining new grounds relied on proposed fresh expert evidence that the applicant had autism spectrum disorder, most likely Asperger’s Syndrome.

The issue was whether that diagnosis could have affected his intention, perception of the events, or later conduct sufficiently to require different jury directions and render the conviction unsafe.

1. The court declined to receive the proposed fresh evidence under section 23 of the Criminal Appeal Act 1968. The renewed application for leave to appeal was refused and the murder conviction remained in place.

2. The court accepted that the applicant had autism spectrum disorder at the time of the offence. The condition could make it more difficult to appreciate and react to spontaneous events. Its significance was, however, lessened where an event was planned or the person had relevant prior experience.

3. The confrontation was not shown to have been spontaneous or unexpected from the applicant’s perspective. There had been a previous similar violent trip, he had appeared holding a knife in a video threatening the opposing group, he knew that Green had declared an intention to stab an opponent, and he had encouraged others to join the planned confrontation. He knew that knives were present.

4. The applicant’s later accounts had minimised his part in the events. That reduced the force of the foundation on which the experts had assessed the effect of the condition. Further, experts who examined him much nearer to the offence had not identified autism as a significant feature of his mental state. The evidence showed a serious deterioration in custody, consistent with the evidence that the practical effects of the condition varied with the environment.

5. The fresh evidence did not establish that, in May 2010, autism had significantly affected the applicant’s intentions or perceptions. Nor did it require a different interpretation of the evidence of his conduct on the bus after the stabbing. It was therefore not of sufficient nature or strength to undermine the safety of the conviction.

• Court of Appeal (Criminal Division): In the present renewed application, the court declined to receive fresh evidence and refused leave to appeal against conviction.
• Court of Appeal (Criminal Division): Other grounds had been refused in R v Gordon [2017] EWCA Crim 2213.
• Single judge of the Court of Appeal: The original 2011 application for leave to appeal was refused.
• Central Criminal Court: The applicant was convicted of murder on 10 March 2011.