Clarke, R v

A conviction is not rendered unsafe because a competent defendant, after receiving sound advice, elects not to advance diminished responsibility or provocation in order to preserve the prospect of an outright acquittal. The appellate court will not ordinarily permit that tactical choice to be reopened after conviction, particularly where the proposed defence conflicted with the defendant’s instructions and would have strengthened the case for murder.

Under Criminal Appeal Act 1968, fresh evidence should not be admitted where it adds nothing material to evidence already before the jury and does not undermine the prosecution case.

Danny Clarke and Lee Clarke were convicted of the murder of Glen Sharpe at the Central Criminal Court. The Crown alleged a joint enterprise. Each brother maintained that the other had inflicted the fatal wound.

On renewed applications for leave to appeal against conviction, Danny Clarke contended that his trial counsel had wrongly failed to advance diminished responsibility and provocation after he had changed his account to one of accidental stabbing. Lee Clarke sought to adduce fresh evidence about Danny Clarke’s violence and alleged admissions. The central issues were whether Danny Clarke’s trial representation rendered his conviction unsafe and whether the proposed material should be admitted under section 23 of the Criminal Appeal Act 1968.

1. The renewed applications for leave to appeal were refused. The court held that Danny Clarke’s conviction was not unsafe because of the way his defence had been conducted.
2. His counsel had faced a difficult conflict between his final instructions that the stabbing was accidental and the available evidence. The accident account had no realistic prospect of success. Advancing diminished responsibility or provocation would have required evidence inconsistent with that account and would have increased the likelihood of a murder conviction.
3. The court found that Danny Clarke was fit to instruct and had been given clear advice about the available courses. He chose the strategy offering the best prospect of an outright acquittal: to put the Crown to proof on joint enterprise without advancing a positive accident case or giving evidence. Counsel’s advice and conduct were not incompetent. It was therefore inappropriate to reopen diminished responsibility on appeal. There was no evidential basis for provocation because Danny Clarke had denied any loss of self-control.
4. The court also declined to admit Lee Clarke’s proposed fresh evidence under section 23 of the Criminal Appeal Act 1968. The jury had already heard evidence of Danny Clarke’s violent propensity and admissions. The further material added nothing material and did not undermine the Crown’s case that Lee Clarke was a full participant in the murder.

• Court of Appeal (Criminal Division) Refused the renewed applications for leave to appeal against the murder convictions.
• Central Criminal Court Danny Clarke and Lee Clarke were convicted of murder by HHJ Stephens QC and a jury on 20 May 2003.
• Single judge Richards J refused leave to appeal against conviction.