Sharp, R v

A defendant must ordinarily advance the whole available defence at trial. Fresh evidence may be received on appeal only where it may provide a basis for finding the conviction unsafe; the failure to raise the issue at trial remains material.

A diminished-responsibility defence inconsistent with the defence run before the jury will be permitted for the first time on appeal only in an exceptional case. The court will normally require an effectively uncontroversial defence and medical evidence explaining why the defendant’s mental condition caused the defence not to be advanced at trial. A deliberate choice to run an alternative defence will ordinarily prevent that course.

The appellant was convicted of murder at Maidstone Crown Court on 23 November 1992 and sentenced to life imprisonment. His trial defence was that the shooting of Mrs Taylor was accidental during a struggle with her husband. He did not appeal his convictions for attempted murder and possessing a firearm with intent to endanger life.

Following a reference by the Criminal Cases Review Commission, the Court of Appeal considered whether fresh psychiatric evidence concerning Halcion, personality disorder and depression should permit a defence of diminished responsibility under section 2 of the Homicide Act 1957 to be raised for the first time. The central issue was whether the interests of justice permitted an appellant who had run accident at trial to advance that inconsistent defence on appeal.

1. The appeal was dismissed. The court refused to receive the proposed diminished-responsibility case as a basis for disturbing the murder conviction.

2. Fresh evidence is not automatically excluded because the relevant issue was omitted at trial. However, it must be capable of providing a ground for allowing the appeal by rendering the conviction unsafe. The court applied the obligation, stated in R v Campbell [1997] 1 Cr.App.R 492, that a defendant should advance the full defence before the jury rather than reserve an alternative defence for an appeal.

3. The authorities showed that a different defence of diminished responsibility could be raised on appeal only exceptionally. The case would normally require an effectively unchallenged or non-controversial diminished-responsibility defence and a medical explanation for the defendant’s earlier decision not to rely upon it. The availability of the underlying material at trial was also important. The court followed the guidance in Ahluwalia 96 Cr.App.R 133, Borthwick [1998] Crim.L.R 274 and Weekes [1999] 2 Cr.App.R 520.

4. This was not such a case. The psychiatric evidence was disputed. A diminished-responsibility defence based on Halcion or the appellant’s psychiatric condition had been available for consideration at trial, but the appellant chose instead to run accident, which was inconsistent with it. There was no evidence that any mental condition caused that choice. The court therefore declined to hear further evidence or to allow the new defence under section 2 of the Homicide Act 1957.

• Court of Appeal (Criminal Division) — On a reference by the Criminal Cases Review Commission, dismissed the appeal against the murder conviction: [2003] EWCA Crim 3870 .
• Court of Appeal (Criminal Division) — An earlier application for permission to appeal, alleging failures by trial counsel and solicitors, was rejected by the single judge and not further pursued.
• Crown Court at Maidstone — On 23 November 1992, convicted the appellant of murder and imposed life imprisonment. He was also convicted of attempted murder and possessing a firearm with intent to endanger life; those convictions were not appealed.