Neaven, R. v

Fresh psychiatric evidence may be received on a murder appeal to advance diminished responsibility only in exceptional circumstances. The defendant’s duty to advance the whole case at trial and the need to discourage tactical changes of defence remain fundamental. However, the interests of justice may require admission where mental illness and substantial impairment at the time of the killing are clear and undisputed, and the defendant and legal advisers did not know of the illness when the trial strategy was chosen. If that evidence establishes diminished responsibility, the murder conviction is unsafe. The court may quash it and, where a retrial is not required in the interests of justice, substitute manslaughter.

The appellant had been convicted of murder at Newcastle-upon-Tyne Crown Court after advancing a false case of self-defence. He later appealed with psychiatric evidence showing that, at the time of the killing, he had schizophrenia which substantially impaired his mental responsibility.

The diagnosis was unknown to the appellant and his legal team at trial. Trial counsel had advised that a psychiatric assessment, on the information then available, would probably harm the self-defence case. The Crown accepted the diagnosis and substantial impairment but contended that the appellant’s choice of defence was a tactical decision which prevented reliance on the new evidence.

The central issue was whether the fresh evidence should be received in the interests of justice and, if so, whether the murder conviction should be quashed and replaced with manslaughter.

1. Appeal allowed. The court received the fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. The evidence established, without material dispute, that the appellant had schizophrenia at the time of the killing and that it substantially impaired his mental responsibility within section 2 of the Homicide Act 1957.

2. The obligation to present the whole defence at trial remains fundamental. An appellate court will ordinarily be sceptical of a defendant who seeks, after conviction, to substitute diminished responsibility for a tactical defence. Nevertheless, each case turns on its facts. Clear and undisputed psychiatric evidence may exceptionally be admitted, particularly where the defendant’s decision about the defence was affected by mental illness.

3. This case was exceptional. The diagnosis was unknown at trial to both the appellant and his legal team. Their advice against psychiatric assessment was appropriate on the information then available, although later shown to have been mistaken. The appellant had therefore not knowingly made a tactical choice which should bind him. The court applied the guidance in R v Weekes [1999] 2 Cr App R 520, while recognising the distinct feature that the illness itself had not been identified at trial.

4. Having considered the statutory factors, the court held that receiving the evidence was necessary or expedient in the interests of justice. The murder conviction was unsafe and was quashed.

5. Under section 3 of the Criminal Appeal Act 1968, the court substituted a verdict of manslaughter. A retrial was not required in the interests of justice. It also ordered continued detention at Ashworth Hospital under section 37 of the Mental Health Act 1983, with a restriction order under section 41.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the murder conviction, substituted manslaughter, and made hospital and restriction orders.
• Newcastle-upon-Tyne Crown Court: On 5 September 2001, a jury convicted the appellant of murder by a majority of 11 to 1. He was sentenced to life imprisonment.