York (Lee), R. v

Fresh psychiatric evidence advanced after conviction will be admitted only exceptionally. The court must scrutinise its reliability and decide whether it casts doubt on the safety of the conviction, while respecting the importance of raising all issues at the trial. In a proposed diminished-responsibility case, a later and tentative diagnosis will not make the conviction unsafe where the reliable evidence does not support an abnormality of mind at the time of the killing.

The appellant pleaded guilty at Bristol Crown Court to murdering Elizabeth Hartley and was convicted after trial of attempting to murder Kevin York. He appealed against the murder conviction, despite his guilty plea, relying on psychiatric evidence obtained about four years after the offences.

The new expert considered that the appellant might at the time have had a borderline personality disorder with dependent traits, capable of amounting to an abnormality of mind. The prosecution relied on the opinion of the psychiatrist who had examined him in 2001 and found no such disorder. The central issue was whether the fresh evidence should be admitted under the Criminal Appeal Act 1968 and, if so, whether it rendered the murder conviction unsafe.

1. Appeal dismissed. The court refused to admit the proposed fresh psychiatric evidence and held that the murder conviction was safe.

2. Under section 23 of the Criminal Appeal Act 1968, the court must consider whether admitting the evidence is necessary or expedient in the interests of justice, including whether it may afford a ground for allowing the appeal. The authorities stress the finality of a trial and the exceptional character of a late attempt to advance diminished responsibility. Nevertheless, the overriding question remains the safety of the conviction.

3. Following R v Neaven [2006] EWCA Crim 955 and Pendleton [2002] 1 WLR 72, the court considered whether the evidence, if available at trial, might reasonably have affected the jury’s decision. That assessment had to precede any question of a retrial. Where the fresh opinion is based on an examination years after the offence, the court must assess its capacity to undermine the verdict reached on the evidence then available.

4. The appellant bore the burden of establishing diminished responsibility under section 2 of the Homicide Act 1957. The court found Dr Tomison’s evidence wholly convincing. His examination close to the time of the offences, and the appellant’s subsequent history, did not support a persistent and pervasive personality disorder amounting to an abnormality of mind. Dr Needham-Bennett’s opinion was necessarily tentative and based on a much later examination.

5. There was no real prospect that the proposed evidence would undermine Dr Tomison’s evidence or cast doubt on the verdict. No retrial arose.

• Court of Appeal (Criminal Division) — The appeal against the murder conviction was dismissed: [2007] EWCA Crim 1743.

• Crown Court at Bristol — In April 2002 the appellant pleaded guilty to murder and was convicted of attempted murder after trial. On 1 May 2002 he received life imprisonment for murder and eight years’ imprisonment concurrently for attempted murder.