Samra, R v

Where credible psychiatric and psychological evidence, unavailable at trial, opens a substantial defence which the jury did not consider, a murder conviction may be unsafe. The appellate court may admit the fresh evidence under Criminal Appeal Act 1968, section 23 without oral evidence where the interests of justice require it. If the court cannot know how a properly informed jury would have resolved diminished responsibility, it should quash the conviction and order a retrial rather than determine that issue itself.

The appellant was convicted of murdering his wife at Stafford Crown Court in May 1995. The only live issue at trial was provocation. The trial judge excluded proposed psychiatric evidence concerning an emotionally unstable personality disorder, and diminished responsibility was not advanced because the available medical evidence did not support it.

A full court rejected a subsequent application for leave to appeal. The Criminal Cases Review Commission later referred the conviction after further psychiatric and psychological reports suggested that the appellant might have suffered from an abnormality of mind capable of substantially diminishing his responsibility.

The central question was whether the fresh medical evidence should be admitted and, if so, whether the murder conviction remained safe.

1. The conviction for murder was quashed and a retrial ordered. The court admitted the reports of Dr Pratt, Dr Basson and Dr Wilson, together with the Crown's responsive reports, pursuant to section 23 of the Criminal Appeal Act 1968. The evidence had not been available at trial, and the interests of justice required its admission. Oral evidence and cross-examination were unnecessary for deciding the present appeal.

2. The fresh material opened a defence of diminished responsibility which had not been put before the jury. It also had a potential bearing on the provocation defence advanced at trial. The court did not decide whether diminished responsibility would succeed. It could not know what conclusion a jury, equipped with the new evidence, would have reached.

3. Accordingly, the murder conviction could no longer be regarded as safe. A fresh indictment was to be preferred and the appellant arraigned within two months at a trial centre directed by the presiding judges of the Midland Circuit. He was to remain in custody, with public funding authorised for representation.

4. The court left any issue of fitness to plead or stand trial for the retrial. It also stated that the retrial should not inhibit the Secretary of State's exercise of powers under section 47 of the Mental Health Act 1983 to transfer the appellant to Rampton Hospital pending the retrial. The renewed application for leave to appeal against the later life sentence for false imprisonment was adjourned; unless listed for renewal before 31 December 2004, it would be dismissed.

• Court of Appeal (Criminal Division): In [2004] EWCA Crim 1797, following a reference by the Criminal Cases Review Commission, the court quashed the murder conviction and ordered a retrial.
• Full Court: The appellant's application for leave to appeal on the exclusion of Dr Winton's evidence was rejected on 8 March 1996.
• Stafford Crown Court: The appellant was convicted of murder in May 1995.