Holderness v R.

On an appeal based on fresh psychiatric evidence, the Court of Appeal must assess the evidence in the context of the case as a whole and decide for itself whether the conviction is unsafe. It must respect the jury’s role, but it does not ask only what effect the evidence might have had on the jury.

For diminished responsibility under section 2 of the Homicide Act 1957, the defendant bears the burden of proving on the balance of probabilities an abnormality of mind which substantially impaired mental responsibility at the time of the killing. Later episodes of serious mental illness do not establish that defence where the evidence does not prove the required condition at the material time.

The appellant was convicted of murdering her mother at Leeds Crown Court on 29 September 2003 and sentenced to life imprisonment. At trial, the jury rejected diminished responsibility. The psychiatric evidence then available did not establish psychosis or another qualifying abnormality of mind at the time of the killing.

After conviction, the appellant experienced further severe mental illness and was diagnosed with bipolar affective disorder, or possibly schizoaffective disorder. Fresh psychiatric evidence relied substantially on her later account of delusions before the offence. The appeal asked whether that evidence rendered the conviction unsafe and established diminished responsibility under section 2 of the Homicide Act 1957.

1. Appeal dismissed. The court granted an extension of time and leave to adduce fresh evidence, but held that the conviction for murder remained safe.

2. Section 2 of the Homicide Act 1957 required the appellant to prove, on the balance of probabilities, that at the time of the killing she suffered from an abnormality of mind which substantially impaired her mental responsibility. The court accepted that she had later suffered serious mental illness and had been predisposed to develop a mental disorder. Those matters did not, however, prove the required condition at the time of the offence.

3. The fresh opinions of Doctors Rix and Green depended crucially on the appellant’s later account of delusions and voices before the killing. Her credibility was materially weakened by sustained lies about the killing, including lies to psychiatrists retained for her. Her explanation for not disclosing the alleged symptoms before or at trial was implausible. The court also attached significance to the absence of observable psychotic symptoms when Doctor Radcliffe examined her soon after the killing.

4. The court applied the approach in Pendleton [2002] 1 CAR 34 and Dial [2005] 1 WLR 1660. It must not usurp the jury’s role, but it must itself evaluate the importance of fresh evidence in the context of all the evidence and determine whether the conviction is unsafe. With the burden resting on the appellant, no jury could reasonably have found that she had proved the section 2 defence on the balance of probabilities.

• Court of Appeal (Criminal Division): Granted an extension of time and leave to adduce fresh evidence, then dismissed the appeal against conviction: [2009] EWCA Crim 1326.
• Crown Court at Leeds: The appellant was convicted of murder on 29 September 2003 and sentenced to life imprisonment on the following day.