Gordon, R v, Court of Appeal - Criminal Division, July 04, 2018, [2018] EWCA Crim 1555

Resolution Date:July 04, 2018
Issuing Organization:Criminal Division
Actores:Gordon, R v

Neutral Citation Number: [2018] EWCA Crim 1555

Case No: 2011/4924/B4



His Honour Judge Morris QC


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/07/2018






(Sitting as a Judge of the CACD)

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Between :

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(Transcript of the Handed Down Judgment.

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Mr Edward Brown QC (instructed by Crown Prosecution Service) for the Respondent

Mr Matthew Stanbury (instructed by Registrar of Appeals) for the Applicant

Hearing date: 13 June 2018

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JudgmentAs Approved by the Court

Lord Justice Treacy:

  1. This is a renewed application for leave to appeal against conviction on 10 March 2011 for an offence of murder at the Central Criminal Court. An application for leave was made in 2011 but was refused by the single judge. The grounds now pursued before this court are new grounds based upon fresh evidence and formed no part of the original grounds of appeal. An extension of time of around 5 years is required for the renewal of this application.

  2. Initially, this application covered a number of other matters which were considered by this court and an application in relation to them was refused. That judgment can be found at R v Gordon [2017] EWCA Crim 2213. The form in which the matter has proceeded before this court represents grounds which the court in 2017 felt might be capable of argument, albeit that leave was not granted. In short, the applicant seeks leave to adduce fresh expert evidence pursuant to s.23 of the Criminal Appeal Act 1968 from two expert witnesses, Dr Gillian Merrill and Dr David Murphy. Neither of those witnesses was involved in the original trial but both have compiled reports since conviction. As a result of that, it is contended that the applicant's conviction for murder was unsafe because the applicant has autism spectrum disorder (ASD), most likely in the form of Asperger's Syndrome. That condition was not diagnosed at the time of trial and it is contended that had it been diagnosed, the judge would have directed the jury in a materially different way.

  3. In particular, it is contended that

    i) The applicant's condition was (or might have been) relevant to his ability to form the required intention for murder and that the jury should have been so directed; and

    ii) that his condition was (or might have been) relevant to his behaviour shortly after the incident and the jury should have been so directed.

    Such directions would have been relevant to the applicant's ability to interpret and understand the behaviour of others at the time of the fatal incident, and also to his own behaviour immediately afterwards and the interpretation to be placed on that.

  4. The facts of the case show that the applicant was part of a group or gang of young men who travelled from Lewisham to Sydenham with a view to confronting and fighting an opposing group or gang. As a result, Nicholas Pearton was chased by a pack of the applicant's group and stabbed in the street in broad daylight. This applicant did not wield the knife which killed Pearton; he was convicted as a secondary party. The applicant's group or gang call themselves ``Shanks and Guns''; ``shanks'' being knives.

  5. There had been a history of confrontation and dispute between members of the two groups. On the afternoon of 5 May 2010 there was an altercation outside a school in Lewisham between members of the Lewisham group and members of the Sydenham group. Within a short space of time, members of the Lewisham group gathered in their local park, Grove Park. They then travelled by bus to Home Park, Sydenham, where there was a confrontation between the two groups.

  6. By this stage both groups were armed. The Sydenham group was chased out of the park. Nicholas Pearton became separated from his friends and was pursued by a number of Lewisham youths. He was caught by Dale Green (who was convicted of murder) just outside the park and was stabbed in the back in plain view of members of the public waiting at traffic lights. The deceased managed to take refuge in a shop on the other side of the road but died there soon afterwards. An attempt made by Demar Brown (convicted of manslaughter) to get inside the shop failed. Other members of the Lewisham group were at the scene chanting and shouting their gang name, apparently celebrating what had happened. The Lewisham group then left the scene, then caught a bus back to Lewisham.

  7. The case against this applicant was put as follows. He was a member of the Lewisham group which had met in Grove Park, Lewisham as a result of the incident outside the school. This led to a group decision to travel to Sydenham for an armed confrontation. There was evidence that Green had said to those present before the group left Grove Park that he was going to stab one of the...

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