Erskine, R v

Under section 23 of the Criminal Appeal Act 1968, the admission of fresh evidence is a broad, fact-sensitive question governed by the interests of justice. The statutory considerations require specific attention but do not create inflexible rules. A defendant must ordinarily advance every available defence at trial. Fresh evidence supporting diminished responsibility will therefore rarely be admitted where a competent defendant deliberately chose another course.

A different result may follow where contemporaneous evidence shows that mental illness both supported diminished responsibility and materially impaired the defendant’s ability to make a rational choice about the plea. Fitness to plead concerns the ability to understand and participate in proceedings. It does not require acceptance of apparently sensible legal advice. A successful diminished-responsibility defence does not invariably require a hospital order rather than life imprisonment.

The court heard consecutively two long-delayed conviction appeals raising fresh psychiatric evidence and diminished responsibility. In Erskine, the appellant had been convicted in 1988 at the Central Criminal Court of seven murders and attempted murder after denying involvement. Contemporary psychiatric material indicated schizophrenia and other serious disorder, but diminished responsibility was not advanced.

In the companion appeal, Williams had pleaded guilty to murder at Leicester Crown Court in 1999 after the possibility of a medical defence had been investigated. Later evidence concerning the effects of an earlier brain injury was relied upon to challenge that plea.

The central issue was whether it was necessary or expedient in the interests of justice to receive evidence not adduced at trial under section 23 of the Criminal Appeal Act 1968.

1. The court allowed Erskine’s appeal. It admitted the fresh evidence under section 23 of the Criminal Appeal Act 1968, quashed the murder convictions and substituted convictions for manslaughter on the ground of diminished responsibility.

   The contemporaneous evidence overwhelmingly showed that, when the killings occurred, Erskine’s mental responsibility was substantially impaired by schizophrenia and psychopathic disorder. His decision not to advance diminished responsibility was also irremediably flawed by reduced mental acuity caused by his illness. Although that impairment did not amount to unfitness to plead, it provided a persuasive explanation for the omission at trial.

2. The statutory discretion is wide and turns on the individual facts. The considerations in section 23(2) require specific attention, but are neither exhaustive nor conclusive. The court endorsed the approach in R v Criminal Cases Review Commission ex parte Pearson [2000] 1 Cr App R 141: the discretion cannot be constrained by inflexible, mechanistic rules.

   Ordinarily, a defendant cannot run one defence at trial and, after conviction, seek to advance an available and inconsistent defence on appeal. That principle does not prevent relief where the defendant’s mental illness itself materially affected the decision whether to advance diminished responsibility.

3. Fitness to plead concerns the defendant’s condition at trial, rather than responsibility at the time of the killing. A defendant is fit if able to understand the proceedings and participate in making a defence. The test does not render a defendant unfit merely because the defendant is abnormal or refuses advice which appears to be in the defendant’s best interests.

4. The court dismissed Williams’s appeal. His guilty plea was deliberate and properly informed. A possible diminished-responsibility defence had been investigated before the plea, but no supporting medical defence then emerged. The later material was unconvincing, particularly as an explanation for the decision to plead guilty.

5. On Erskine’s substituted convictions, the court held that diminished responsibility does not create a rule that a hospital order must replace life imprisonment. Public protection, the gravity and circumstances of the homicide, and the degree of residual responsibility remain relevant. Given the passage of time and the medical evidence, it made a hospital order under section 37 of the Mental Health Act 1983, with an indefinite restriction under section 41.

• Court of Appeal (Criminal Division) — In [2009] EWCA Crim 1425, allowed Erskine’s appeal, substituted manslaughter convictions on the ground of diminished responsibility, and dismissed Williams’s companion appeal.
• Central Criminal Court — In 1988, Rose J and a jury convicted Erskine of seven murders and attempted murder.
• Crown Court at Leicester — In 1999, Goldring J accepted Williams’s guilty plea to murder and imposed life imprisonment.