Evans, R v

A guilty plea given after erroneous legal advice is a nullity only where the error goes to the heart of the plea, so that it was not a true and free acknowledgement of guilt. The possibility that amnesia may be followed by genuine recovered memory does not itself make later recollections admissible or reliable fresh evidence. The court must assess the particular account for genuineness and reliability under the Pendleton threshold.

Fresh psychiatric opinion will not ordinarily reopen a diligently investigated issue where competent contemporaneous experts reached conclusions reasonably open to them and there is no demonstrated error in their work.

The appellant pleaded guilty to murdering his wife at Mold Crown Court after Sachs J ruled that the jury could not infer that she had told him of a holiday to Cyprus with another man. His application for leave to appeal was refused by a single judge in 1998.

Following a reference by the Criminal Cases Review Commission, he appealed on three grounds: that his plea followed erroneous advice about provocation; that recovered memories supplied fresh evidence of provocation; and that later psychiatric evidence supplied fresh evidence of diminished responsibility. The appellant had suffered a stroke and progressive dementia, and did not give evidence before the court.

1. The appeal was dismissed. The appellant’s conviction for murder was safe.

2. The court held that the legal advice preceding the guilty plea was correct. On the evidence then available, provocation had no realistic prospect of success unless a jury could infer that the deceased had disclosed her Cyprus holiday. The ruling of Sachs J prevented that inference. The appellant’s account in interview, that the deceased did not love him and would not return, could not found a viable provocation defence.

3. In any event, the plea would not have been a nullity. The court applied R v Saik [2004] EWCA Crim 2936: erroneous advice must make the plea other than a true acknowledgement of guilt. The special venire de novo jurisdiction, preserved by section 53(2)(d) of the Supreme Court Act 1981, concerns proceedings which were no trial at all or were invalidly commenced. There was no pressure to plead and no basis for finding that this plea was not free or genuine.

4. Although recovered memory can in principle be genuine, the appellant’s later accounts did not pass the Pendleton threshold. Their timing, evolving content, connection with attempts to appeal, and inconsistencies meant that there was no credible and reliable fresh evidential basis for provocation. Pathology evidence could not establish the truth or accuracy of what the deceased allegedly said before the killing.

5. The later psychiatric opinions did not justify admission as fresh evidence under section 23 of the Criminal Appeal Act 1968. Diminished responsibility had been thoroughly investigated near the time by experienced forensic psychiatrists who made independent assessments. A later difference of professional opinion, without showing error in those contemporaneous conclusions, could not reopen the resolved issue.

• Court of Appeal (Criminal Division) — On a reference from the Criminal Cases Review Commission, dismissed the appeal against conviction for murder.
• Court of Appeal single judge — Refused leave to appeal on 18 May 1998.
• Crown Court at Mold — Following Sachs J’s ruling on provocation, the appellant pleaded guilty to murder on 11 February 1998.