Karimi, R v

Where provocation is in issue, the jury must be able to consider all evidence relevant to whether this defendant lost self-control and to whether that loss was sufficiently excusable to reduce murder to manslaughter. Relevant psychiatric evidence cannot be confined to diminished responsibility if it also bears on irritability, sensitivity, vulnerability to provocation or emotional self-control.

A direction which limits the defendant’s relevant characteristics to general background, while omitting such evidence, is materially defective. If the appellate court cannot be confident that a properly directed jury would have convicted of murder, the conviction is unsafe. The proper course may be a retrial rather than substitution of a manslaughter verdict, because the jury must decide the factual issue.

The appellant was convicted of murder at St Albans Crown Court in July 1997 and sentenced to life imprisonment. Following earlier unsuccessful leave applications, the Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995.

The reference raised fresh psychiatric evidence concerning enduring personality change after catastrophic experience and alleged defects in the trial judge’s direction on provocation. The appellant had relied at trial on diminished responsibility, provocation and self-defence after killing a former friend who was his wife’s lover.

The central issues were whether the court should receive the new psychiatric evidence and whether, under the law of provocation as subsequently stated, the summing-up failed to direct the jury to consider psychiatric evidence relevant to both limbs of provocation.

1. Appeal allowed. The conviction was quashed and a retrial ordered. The court could not be confident that a properly directed jury would necessarily have convicted the appellant of murder.

2. The court declined to receive the proposed fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. The evidence did not rest on significant new information, created difficulty over the failure to adduce it at trial, and did not provide reason to believe that a properly directed jury’s verdict would have differed. It also undermined, rather than supported, the diminished-responsibility case advanced at trial.

3. Applying the law of provocation stated in Morgan Smith [2001] 1 AC 146, the judge’s treatment of provocation was materially deficient. On the first limb, there was psychiatric evidence capable of bearing on whether this particular appellant had in fact lost self-control. Although a judge need not identify that evidence while stating the legal directions, the summing-up effectively excluded it by presenting the medical evidence as relevant only to diminished responsibility.

4. On the second limb, the jury had to assess whether the loss of self-control was sufficiently excusable to reduce murder to manslaughter, taking account of all relevant evidence of the defendant’s experiences, character and mental state. The judge limited the relevant characteristics to the appellant’s general background as a Kurdish fighter and omitted evidence of irritability, sensitivity, volatility and weakened emotional control. That was a material misdirection.

5. The jury’s request for clarification increased the significance of the omission. If the jury rejected the appellant’s account, provocation could not arise; but if it might have accepted it, a properly directed jury could have returned manslaughter by reason of provocation. The court therefore ordered a retrial, rather than substituting manslaughter, because that factual verdict was for a jury.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the murder conviction and ordered a retrial.

• Criminal Cases Review Commission — referred the case on 20 June 2003 under section 9 of the Criminal Appeal Act 1995.

• Single Judge of the Court of Appeal — refused leave to appeal on 10 November 1997; a later application to extend time to renew that application was refused on 1 May 1998.

• St Albans Crown Court — convicted the appellant of murder on 29 July 1997 and imposed life imprisonment.