Roddis v R.

A post-trial diagnosis of autistic spectrum disorder does not by itself render a conviction unsafe. The appellate court must focus on the issues tried, the diagnosis’s relevance to those issues, and whether substantially similar evidence was available before trial under another diagnosis.

Fresh expert evidence will not assist where it would contradict the defendant’s trial case or where counsel’s decision not to deploy available expert material was a sustainable forensic choice. A defendant may advance a factual case inconsistent with trial instructions or testimony only in exceptional circumstances.

The appellant appealed convictions at Leeds Crown Court in 2008 for leaving a hoax bomb on a bus and preparing an act of terrorism. The Criminal Cases Review Commission referred the case after he received a post-trial diagnosis of autistic spectrum disorder.

He contended that autism explained his behaviour, including his apparent interest in Islamic militancy and explosives, and might have affected the jury’s assessment of intention. The court received fresh psychiatric evidence and considered whether the new diagnosis affected the safety of either conviction.

1. Appeal dismissed. The post-trial diagnosis did not render either conviction unsafe.

2. The diagnosis gave a broader account of the appellant’s condition, but its material features had substantially been identified before trial. The pre-trial reports described immaturity, social naivety, attention-seeking behaviour and insensitivity to social norms. Those matters could have been explored through expert evidence at trial.

3. The decision not to call an expert was an explicable and sustainable forensic choice. Expert evidence advancing a terrorist-fantasy explanation, or an account of intense narrowed interests, would have conflicted with the appellant’s sworn case that he had no such fantasies or interests. It could also have supported the prosecution’s case that he had turned terrorist fantasies into reality.

4. As to the hoax-bomb count, the new diagnosis did not establish that the appellant failed to understand that passengers would initially believe the device was real and be alarmed. As to the terrorism-preparation count, the proposed evidence was unavailable in practice because it depended on factual premises which the appellant had denied at trial.

5. Applying R v H [2002] EWCA Crim 730, the court held that no exceptional basis had been shown for advancing an appellate factual case inconsistent with the appellant’s instructions and testimony at trial. It also endorsed the guidance in R v Janhelle GrantMurray and Alex Henry; R v Joseph McGill, Corey Hewitt and Andrew Hewitt [2017] EWCA Crim 1228 that post-trial autism cases turn on their facts. R v Thompson [2014] EWCA Crim 836 did not govern this appeal because it did not involve the determinative difficulties present here.

• Court of Appeal (Criminal Division): Dismissed the appeal against the 2008 convictions after a referral by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995.

• Leeds Crown Court: The appellant was convicted on 17 July 2008 of placing an article with intent and preparing an act of terrorism. He was sentenced to seven years’ imprisonment.

• Court of Appeal (Criminal Division): On 12 March 2009, refused his referred application for leave to appeal conviction, advanced on the terrorism-preparation count only.