Farnell, R. (on application by) v Criminal Cases Review Commission

A judicial review court must respect the Criminal Cases Review Commission’s statutory judgment, but may intervene where the Commission misdirects itself on the appellate test. In a provocation case, the Court of Appeal must decide for itself whether a conviction is unsafe, while giving particular weight to the jury’s statutory role under section 3 of the Homicide Act 1957. It must not effectively retry the issue as a jury. The accused is entitled to a full and properly framed direction on provocation, irrespective of whether the defence relies on that defence. Relevant psychiatric evidence may bear on provocation even where it also supports diminished responsibility. A Commission assessing whether there is a real possibility of a successful appeal must account for these principles and must not treat a defective direction as immaterial merely because the defence disavowed provocation.

The claimant had been convicted of murder in 1996 after the trial judge directed the jury on provocation, although defence counsel expressly disavowed that defence. The jury was told that the issue was not relied upon and that it would probably require little consideration. Psychiatric evidence supporting diminished responsibility was not related to provocation, including the claimant’s capacity for self-control.

Following the House of Lords decision in R v Smith (Morgan), and further psychiatric reports, the claimant asked the Criminal Cases Review Commission to refer his conviction under section 13 of the Criminal Appeal Act 1995. The Commission declined to refer the case. The issue was whether the Commission had lawfully assessed the real possibility that the Court of Appeal would find the conviction unsafe in light of the defective direction, the subsequent development of provocation law and the fresh evidence.

1. Outcome. The application for judicial review succeeded. The Commission’s decision of 2 July 2002 was quashed and the case was remitted for reconsideration.
2. The Commission’s jurisdiction was one of judgment. The reviewing court was not entitled to decide whether the Commission’s conclusion was right or wrong, but could intervene where its reasons disclosed a material legal error.
3. The trial judge’s direction on provocation was inadequate. Although provocation was formally left to the jury, it was presented as a matter of little practical importance because the defence had disavowed it. The claimant was entitled to a full direction, regardless of the defence stance. The psychiatric evidence of depressive illness was capable of being relevant to provocation, including the issue of self-control.
4. R v Smith (Morgan) confirmed that a characteristic may, in an appropriate case, affect the degree of self-control which society could reasonably expect of the accused. The direction required by that decision would have been materially different from the direction actually given.
5. Under section 2(1) of the Criminal Appeal Act 1968, the Court of Appeal must itself decide whether the conviction is unsafe. It may use the likely impact on the jury as a check on its provisional view, but must not convert itself into the jury. This caution is especially important in provocation cases because section 3 of the Homicide Act 1957 reserves the objective issue to the jury.
6. The Commission’s reasoning indicated that it had evaluated the fresh evidence as if the Court of Appeal would resolve provocation as a jury would. It also attached excessive weight to the defence’s disavowal and failed to recognise that the true issue of provocation had not effectively been before the jury. Those were misdirections as to the appellate process and required reconsideration.

The judgment does not state a prior appellate decision in the same proceedings. The Administrative Court reviewed the Commission’s decision of 2 July 2002 and quashed it, remitting the matter for reconsideration.