Latus, R. v

Fresh evidence supporting a new defence of diminished responsibility will be received on appeal only exceptionally. Under section 23 of the Criminal Appeal Act 1968, the court must consider whether admission is necessary or expedient in the interests of justice, including whether there is a reasonable explanation for not adducing the evidence at trial.

The obligation to advance the whole case at trial remains fundamental. A deliberate and persistent tactical decision to deny involvement, made in the hope of acquittal, will ordinarily provide no reasonable explanation. The position may differ where clear and undisputed mental illness itself prevented rational instructions or caused the defence not to be pursued.

The appellant was convicted of the murder of Julian Sanders at Chester Crown Court on 16 October 2003, following a retrial. He had consistently denied involvement in that killing. He later admitted it to his solicitor and gave an account said to show that Sanders had featured in his delusional beliefs.

Fresh psychiatric reports stated that, had that account been given before trial, the appellant would have had a defence of diminished responsibility. Both experts considered that the appellant suffered from serious mental illness, although the prosecution disputed the truth and completeness of his new account.

The appellant appealed against conviction and sought leave to adduce Dr Collins's report under section 23 of the Criminal Appeal Act 1968. The central issue was whether his late reliance on diminished responsibility was justified in the interests of justice.

1. Appeal dismissed. The court refused leave to receive the further psychiatric evidence. Although it was common ground that the evidence was capable of belief, might afford a ground for allowing the appeal, and would have been admissible, the statutory discretion was not satisfied because there was no reasonable explanation for its absence from the trial.

2. Under section 23 of the Criminal Appeal Act 1968, a defendant must ordinarily advance the whole case at trial. The court applied the principle in R v Ahluwalia (1993) 96 Cr.App.R 133 that substantial persuasion is required before diminished responsibility may be raised for the first time on appeal after it was deliberately not pursued at trial. The guidance in R v Neaven [2006] EWCA Crim 955 confirmed that the one-trial principle and scepticism towards tactical choices are fundamental.

3. The appellant knew that diminished responsibility was available. It had been successfully advanced in relation to another killing considered in the earlier proceedings. His own later explanations showed a calculated attempt to avoid responsibility because he thought there was insufficient evidence and hoped to escape conviction. His conduct after the killing and his persistent denials reinforced that conclusion. The court rejected the submission that mental illness had caused the decision not to pursue the defence.

4. The court did not need to resolve disputes about the appellant's new account of the killing. It observed that section 2(1) of the Homicide Act 1957 requires substantial impairment of mental responsibility for the acts in doing the killing. The precise acts and their connection with any impairment would therefore require determination if diminished responsibility were to be established.

5. Unlike the exceptional circumstances described in R v Borthwick [1998] Crim LR 274 and R v Ahluwalia, this was a tactical change of case rather than a failure caused by illness or an overlooked medical issue. It was neither necessary nor expedient in the interests of justice to admit the evidence, and the conviction for murder remained safe.

• Court of Appeal (Criminal Division) — refused leave to call further psychiatric evidence and dismissed the appeal against conviction: [2006] EWCA Crim 3187.

• Chester Crown Court — on 16 October 2003, following a retrial, the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 16 years. No citation for that judgment is stated.