Shickle,R. v

Fresh evidence supporting a defence of diminished responsibility, which was not advanced at trial, will be received only where the statutory criteria and the interests of justice justify that course. The court must consider whether the evidence may afford a ground for allowing the appeal and whether there is a reasonable explanation for its earlier absence.

An appellant cannot ordinarily reserve an inconsistent alternative defence for an appeal. In an exceptional case, a viable and properly supported defence may be raised late. However, where the evidence is disputed and there is no medical explanation for the failure to advance the defence at trial, the fresh-evidence jurisdiction under the Criminal Appeal Act 1968 will not be exercised.

The appellant had been convicted at Oxford Crown Court of the murder of Norman Harvey. Her first appeal was dismissed. The Criminal Cases Review Commission later referred the conviction to the Court of Appeal.

The appellant sought to adduce fresh psychiatric evidence to show that she had had a viable defence of diminished responsibility under section 2 of the Homicide Act 1957. That defence had not been advanced at trial, where she denied administering a fatal insulin overdose and relied on issues concerning causation and identity. The prosecution relied on contrary psychiatric evidence.

The central issue was whether the fresh evidence should be received under section 23 of the Criminal Appeal Act 1968, and consequently whether the murder conviction was unsafe.

1. Appeal dismissed. The court held that the conviction was safe. It declined to admit the fresh psychiatric evidence, except for the limited purpose for which it had heard it de bene esse: deciding whether there was a reasonable explanation for the failure to adduce it at trial.

2. Section 23 required the court to consider the statutory criteria, particularly whether the evidence might afford a ground for allowing the appeal and whether there was a reasonable explanation for its absence. The first and third criteria were met, but the latter two required examination of the psychiatric evidence and of the defence decisions at trial.

3. The court distinguished R v Martin [2002] 1 Cr App R 323. In this case it was necessary to assess the competing psychiatric evidence because the asserted mental condition was said to explain why diminished responsibility had not been raised. Applying the guidance in R v Arnold and the later fresh-evidence authorities, the court emphasised that a defendant must ordinarily advance the full case at trial. A wholly new and inconsistent defence is admissible on appeal only exceptionally, and must have a proper and viable evidential basis.

4. The court preferred Dr Joseph’s evidence on the critical issue. The appellant’s changing accounts, the absence of documented support for denial as a feature of the asserted disorder, and the more obvious explanations of intoxication or untruthfulness meant that it was not established that her failure to raise diminished responsibility resulted from an abnormality of mind. Trial counsel had reasonably pursued defences consistent with her instructions and capable of securing an acquittal.

5. The court also noted that diminished responsibility is a partial defence, for which the defence bears the burden. Although R v Dietschmann [2003] I AC 1209 establishes that intoxication need not be the sole cause of the killing, the jury would have had to assess the psychiatric evidence alongside all the evidence, as explained in R v Byrne [1960] 2 QB 396. The proposed evidence therefore did not meet the interests-of-justice test on the facts of this case.

6. The unadvanced provocation point could not succeed once the psychiatric evidence was excluded. The effect of H.M Attorney General for Jersey v Holley was noted, but was immaterial to the result.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, dismissed the appeal and upheld the murder conviction: [2005] EWCA Crim 1881.

• Court of Appeal (Criminal Division): The appellant’s first appeal against conviction was dismissed on 15 July 1997. The citation is not stated in the judgment.

• Crown Court at Oxford: Convicted the appellant of murder on 25 February 1997 before Latham J and a jury.