Kenneth Erskine was convicted at the Central Criminal Court in London on January 29, 1988, of seven murders and one attempted murder. All the people he attacked were elderly. Over a few months in 1986 three women and four men were killed in their own homes or in a residential home for older people, and a fourth man, aged 73, fought him off and survived. The trial judge, Mr Justice Rose, passed seven concurrent life sentences and recommended that he serve at least 40 years.
Erskine never accepted guilt at trial. He told the police and his lawyers that he was a burglar, not a killer, and he did not give evidence. Several psychiatrists who saw him in the months before the trial thought he had schizophrenia, and at least one doubted that he was fit to stand trial at all. Within months of the verdict he was moved from prison to Broadmoor Hospital. More than 20 years later the Court of Appeal ruled that there had been "unequivocal contemporaneous evidence" at the time of the trial that his responsibility for the killings was substantially impaired, and it replaced the seven murder convictions with convictions for manslaughter on the grounds of diminished responsibility.
The Court of Appeal did not name the victims in its judgment. It described them by age and circumstance. Each of them was an older person living quietly, alone or in care, when an intruder came into the place where they slept.
In early April 1986 a woman of 77 was killed in her own home. She had senile dementia. She died of manual strangulation.
In early June 1986 a woman of 68 who lived alone was attacked and strangled in her home.
Early on the morning of June 27, 1986, a man of 73 was attacked in his bed in a residential home for older people. He survived, and this attack became the count of attempted murder.
The next day, June 28, 1986, two residents of the same home were killed. One was a man of 81, who died from compression of the neck. The other was a man of 94, who died of asphyxia from manual strangulation.
A few days later a man of 82 was killed in his own home. He died from compression of the neck.
About a fortnight after that, a man of 74 was killed in his own home. He died of asphyxia.
A few days later still, a woman of 83 was killed in her flat. She was disabled and nearly blind, and she lived alone. She died of manual strangulation.
The Court of Appeal said that each of these killings was grave in itself and that together they made up "a truly appalling series of crimes." The victims were chosen, a psychologist reported years later, because elderly people were less able to resist.
Erskine was arrested in 1986, and the evidence against him included fingerprints found in some of the homes he had entered. His solicitor was present at every police interview. A psychiatrist later described him in interview as "all over the place." He told the officers that voices and shadows threatened him, and that the voices sometimes whispered and sometimes screamed at him.
He admitted going into the homes to steal. He denied killing anyone, and he denied trying to kill anyone.
Legal aid was granted, and leading and junior counsel were instructed. Erskine's instructions to them were the same as his account to the police. He was a burglar, he said, and he was innocent of the killings.
His psychiatric history, as the Court of Appeal set it out, went back to childhood. He was first seen by an educational psychologist at the age of 6. Over the following years he was assessed by psychiatrists, given medication for symptoms of schizophrenia, and reported hearing voices and having delusions. His condition rose and fell but grew gradually worse. In preparation for the trial his IQ was assessed at 72, in the range the court described as borderline handicap.
Three psychiatrists and a psychologist examined him while he was held before the trial.
Dr Paul Bowden, a forensic psychiatrist instructed by the court, reported in 1987 that Erskine had a severe mental illness, schizophrenia. He found an abnormality of thinking amounting to delusions, together with auditory hallucinations and abnormal behavior. Erskine denied the charges strongly and did not want to be seen as criminally insane. Dr Bowden thought he was fit to plead but advised that this be checked again closer to the trial. Because Erskine denied the killings, Dr Bowden did not think a defense of diminished responsibility could be put forward.
A psychological report dated December 15, 1987, by Dr Gudjonsson found borderline intellectual functioning and abnormal behavior. It described a man who seemed to live in a world of his own and who at times could not tell fantasy from reality.
Dr John Hamilton, the medical director of Broadmoor Hospital, reported on January 7, 1988, that Erskine had schizophrenia and a psychopathic disorder. He thought Erskine probably met the basic tests for fitness to plead, but he was troubled. Erskine was confused about the people around him, suspicious of his own lawyers, and afraid that if he were convicted he would be executed in South America.
Dr Bowden saw him again in January 1988 and still regarded him as fit to plead.
Dr James MacKeith reported on January 11, 1988, that Erskine had a severe personality disorder and a severe mental illness in the form of schizophrenia. Because Erskine denied the acts, Dr MacKeith did not then advise that his responsibility had been substantially impaired. He doubted whether Erskine was fit to stand trial, described him as a serious danger, and recommended that he be sent to a special hospital if convicted.
The trial took place at the Central Criminal Court before Mr Justice Rose and a jury. On the first morning Dr Hamilton saw Erskine again and found him disoriented and probably hallucinating. In a further report Dr Hamilton wrote that if Erskine had committed the killings, his behavior could be explained only as the result of mental abnormality, which would support a defense of diminished responsibility.
No such defense was run. Erskine insisted throughout that he was not guilty of any of the murders. He told his lawyers that forensic evidence found in one of the cases was not his. Years later his trial counsel recalled raising diminished responsibility with him, but said they had no doubt that he would never have allowed it, and that it would have undercut his main defense that he had killed no one. Counsel judged that he was able to give coherent instructions and found no material on which to argue that he was unfit to plead.
He did not give evidence. Under the law as it then stood, the jury could draw no adverse inference from his silence. The Court of Appeal later found that the judge's summing up dealt correctly with the law and the evidence.
On January 29, 1988, the jury convicted him of seven counts of murder and one count of attempted murder. Mr Justice Rose passed seven concurrent life sentences for the murders, with a recommended minimum term of 40 years, and a concurrent term of 12 years for the attempted murder. No grounds of appeal were lodged. At the time, the Court of Appeal later observed, there were none to put forward.
Dr MacKeith wrote a further report at the end of the trial. In it he concluded that Erskine's abnormality of mind had substantially impaired his responsibility. He suspected that Erskine's main concern was to avoid psychiatric detention, and he again recommended a special hospital. In his own report after the conviction, the trial judge noted that no medical issue had been raised at the trial but that the psychiatric evidence pointed to probable schizophrenia.
In August 1988, a few months after the conviction, Erskine was admitted to Broadmoor Hospital under section 47 of the Mental Health Act 1983, which allows a prisoner to be transferred to hospital for treatment, with a restriction without limit of time. He was still denying the killings and had refused treatment in prison. Within months Broadmoor reported that he remained a danger and advised against placing him in dormitory accommodation. Staff recorded that he lived, to all intents and purposes, in a world of his own. He stayed at Broadmoor from then on.
In 1995 he began to admit responsibility for the killings. A psychologist's report in 2001 found that his regret was centered on himself, and recorded that he had chosen elderly victims because they were less able to resist.
Dr Andrew Horne was his responsible medical officer from 2001 to 2005, and in 2006 he wrote a report on Erskine's history. By then Erskine accepted that he had carried out the killings. He told doctors that he had denied them at the time because he was afraid of being executed, and that he would have pleaded guilty if he had understood that the law could not be changed to allow that. Dr Horne believed that schizophrenia had played a substantial part in the offending and that the evidence would have supported a defense of diminished responsibility. An arrangement known as Technical Life Status was considered for him at this time but was discontinued before a decision was made.
His solicitors also asked for his minimum term to be reviewed under the Criminal Justice Act 2003. The review left the term unchanged, but the Court of Appeal noted that it had not addressed the questions raised in the later appeal.
Erskine applied for leave to appeal against his convictions and sentence almost 20 years after the time limit had passed. The case was heard together with an unrelated appeal by another man, Ryan Williams, because both raised the same question: when should the Court of Appeal receive fresh psychiatric evidence of diminished responsibility that was not put to the jury at trial?
The bench was the Lord Chief Justice, with Lord Justice Thomas and Mr Justice Treacy. Edward Fitzgerald QC and Paul Taylor appeared for Erskine; Mark Ellison QC and Zoe Johnson appeared for the Crown. The expert psychiatric evidence was heard by Lord Justice Thomas on April 21, 2009, and the full court heard Erskine's appeal on May 6, 2009.
Dr Horne reported in April 2007 that Erskine's responsibility had been substantially impaired, and that his illness had probably affected his behavior even before its symptoms appeared in 1980. He later added that Erskine no longer had a diagnosable personality disorder, although he might have met that threshold at the time of the killings. In July 2008 he reported that Erskine's belief that he would be executed had been a delusion, held with great conviction. To admit the killings and claim to be ill would have felt to him like lying, and his lack of insight, itself a product of the illness, would have stopped him from pleading diminished responsibility.
Professor Nigel Eastman wrote that there was no dispute that Erskine had paranoid schizophrenia and a severe antisocial personality disorder. In his view the illness had probably contributed to the killings, with the personality disorder shaping how the schizophrenia showed itself. He thought Erskine might have been cognitively unfit to plead, because his delusions stopped him from choosing rationally between admitting and denying the killings, and he questioned whether the test for fitness to plead, which comes from a nineteenth-century case, was still adequate. He concluded that there had been a robust medical basis for a defense of diminished responsibility at the trial.
Dr Laurence Chesterman, instructed by the Crown, reported in November 2008 that Erskine would now plead guilty to manslaughter on the grounds of diminished responsibility if he were tried again. He thought it impossible to judge fitness to plead 20 years after the event, and he did not accept that the denial had been driven by delusion; he regarded it as a tactical decision, supported by counsel. He accepted that schizophrenia had been present. He noted that Erskine had shown extremely disturbed behavior from a young age, before schizophrenia could have developed, so that offending without the illness could not be ruled out. He also said that if Erskine had offered a plea to manslaughter on the grounds of diminished responsibility at the trial, the Crown may well have accepted it.
The court gave judgment on July 14, 2009. On the general question it was cautious. Where evidence could have been put before the jury but was not, it said, receiving it on appeal will be exceptional, and a defendant who chooses one defense at trial cannot normally run a different one later. It warned against reconstructing a defendant's fitness to plead long after the event. But it said that Erskine's case was different, because serious questions about his fitness had been raised in writing or before the trial judge at the time.
On Erskine himself the court called it a "very straightforward" case. It was "overwhelmingly clear," the court said, that when he stood trial there was unequivocal contemporaneous evidence that his responsibility was substantially impaired. There was also contemporaneous evidence that his reduced mental capacity made his decision not to run the defense irremediably flawed. The interests of justice required the court to receive the fresh evidence. The murder convictions were unsafe. The court quashed them and substituted seven convictions for manslaughter on the grounds of diminished responsibility.
Erskine's counsel argued that such a conviction should normally lead to a hospital order rather than a life sentence. The court rejected that as a general rule: some people whose plea of diminished responsibility succeeds remain dangerous, and life imprisonment can still be right. In Erskine's case, though, he had been in a maximum security hospital for about 20 years, and the medical evidence, including Dr Chesterman's view of the risk on any release and Dr Horne's suggestion of restrictions, pointed towards a hospital order. Subject to oral evidence, the court said it would make a hospital order under section 37 of the Mental Health Act, with a restriction under section 41 without limit of time in the interests of public safety. The life sentences would in effect be replaced.
Williams's appeal was dismissed. The court found that his guilty plea to murder had been a deliberate and properly informed decision.
Writing in the Solicitors Journal in August 2009, Benjamin Newton noted that the Crown had accepted that a plea to manslaughter on the grounds of diminished responsibility might have been acceptable had it been offered at the trial, and that the ruling also set out guidance on fresh evidence and on the citation of earlier cases that would apply across criminal appeals.
As of the Court of Appeal's judgment of July 14, 2009, Erskine had been held at Broadmoor Hospital since August 1988, and the court said it would make a restricted hospital order without limit of time. His legal position since 2009 is seven convictions for manslaughter on the grounds of diminished responsibility and one conviction for attempted murder. No later official record of where he is held, or whether he is alive, has been reported.
Childhood: first seen by an educational psychologist at the age of 6.
1980: symptoms of illness appear, according to Dr Horne's later report.
Early April 1986: a woman of 77 is killed in her home.
Early June 1986: a woman of 68 is killed in her home.
June 27, 1986: a man of 73 survives an attack in a residential home.
June 28, 1986: two men, aged 81 and 94, are killed in the same home.
A few days later: a man of 82 is killed in his home.
About a fortnight later: a man of 74 is killed in his home.
A few days after that: a woman of 83 is killed in her flat.
1986: Erskine is arrested; he admits burglary and denies the killings.
1987: Dr Paul Bowden reports that he has schizophrenia and is fit to plead.
December 15, 1987: psychological report by Dr Gudjonsson.
January 7, 1988: Dr John Hamilton reports schizophrenia and psychopathic disorder.
January 11, 1988: Dr James MacKeith reports schizophrenia and doubts his fitness to stand trial.
January 29, 1988: convicted at the Central Criminal Court of seven murders and one attempted murder; seven concurrent life sentences, recommended minimum 40 years.
August 1988: transferred to Broadmoor Hospital under section 47 of the Mental Health Act 1983.
1995: begins to admit responsibility.
2001: psychologist's report on his choice of victims.
2006 to 2008: Dr Horne's reports support diminished responsibility.
November 2008: Dr Chesterman's report for the Crown.
April 21, 2009: expert evidence heard by Lord Justice Thomas.
May 6, 2009: appeal heard.
July 14, 2009: murder convictions quashed; manslaughter on the grounds of diminished responsibility substituted; restricted hospital order to be made.