Andrews, R v

Fresh psychiatric evidence obtained after a full trial will not ordinarily be received merely because it offers a more developed diagnosis. Under Criminal Appeal Act 1968, the court must consider its credibility, potential to justify allowing the appeal, admissibility and the explanation for its earlier absence. Retrospective expert evidence should be approached with considerable scepticism where the material facts were known at trial and the jury rejected the accused’s account.

A lies direction is not normally required for diminished responsibility. That defence depends upon medical evidence and is a discrete issue to which the defendant’s credibility is not directly relevant, although exceptional circumstances cannot be excluded.

The appellant was convicted of the murder of Thomas Cressman at the Central Criminal Court on 16 May 2001 and sentenced to life imprisonment. She appealed against conviction.

The permitted grounds relied on fresh psychiatric and other evidence concerning alleged childhood sexual abuse. It was said that the evidence strengthened diminished responsibility and would have assisted the jury on provocation. The appellant also sought leave to advance a further ground that the judge’s direction about her admitted lies should have addressed diminished responsibility.

The central questions were whether the proposed evidence should be received and whether the absence of a further lies direction rendered the conviction unsafe.

Disposition

1. The court dismissed the appeal on the two grounds for which leave had been granted. It refused leave to advance the additional ground concerning lies.

2. Per Kennedy LJ, giving the court’s judgment, the proposed evidence was not received under section 23 of the Criminal Appeal Act 1968. Although the later psychiatrists might have made it easier for a jury to find an abnormality of mind, the evidence did not disturb the jury’s necessary conclusion that the appellant was wholly unreliable. It shed no further light on the allegations of rape and assault which were essential to provocation and to her account of the killing.

3. An abnormality of mind is insufficient by itself for diminished responsibility under section 2 of the Homicide Act 1957. It must substantially impair mental responsibility for the acts constituting the killing, and the degree of impairment is for the jury on the facts found. On the prosecution case accepted by the jury, the fresh diagnoses could not establish such substantial impairment. The court applied the caution in Ahluwalia [1993] 96 Cr App R 133 to retrospective medical evidence where a defence had already been fully advanced at trial.

4. The judge’s lies direction was adequate. It correctly warned that lies could support the prosecution only if deliberate, unexplained innocently, and told from consciousness of guilt; and it correctly stated that the lies were not inconsistent with provocation, consistently with R v Richens [1994] 98 Cr.App.R. 43. A further direction tied specifically to diminished responsibility would have confused the jury. Diminished responsibility depended on the medical evidence and remained a distinct issue, as recognised in R v Bathurst [1968] 52 Cr.App.R. 251 and R v Byrne [1960] 44 Cr.App.R. 246.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed on the two permitted grounds. Leave to advance a further ground was refused: [2003] EWCA Crim 2750.
• Central Criminal Court. On 16 May 2001, before the Recorder of London, the appellant was convicted of murder and sentenced to life imprisonment.