Symmons, R v

A provocation direction is adequate when, read as a whole, it requires the jury to assess both the defendant’s actual loss of self-control and the gravity of the alleged provocation for that defendant before applying the objective standard of self-control.

Fresh psychiatric evidence under Criminal Appeal Act 1968 section 23 should not be received where the expert diagnosis materially depends on factual accounts which the appellate court finds unreliable. A conviction is not unsafe merely because a defendant gave evidence while unwell where the trial judge monitored fitness and the evidence does not show an inability to participate effectively.

The appellant was convicted at the Crown Court at St Albans of murdering his wife and was sentenced to life imprisonment with a minimum term of 16 years. He admitted killing her but relied at trial principally on provocation, asserting that she had taunted him about his mother and sexual impotence.

With leave of the single judge, he appealed against conviction and sentence. The pursued grounds alleged that he had been unfit to give evidence, that the provocation direction was deficient, and that fresh psychiatric evidence supported provocation and diminished responsibility. He also renewed an application for leave to advance fresh evidence concerning impotence.

1. Appeal dismissed. The trial judge acted reasonably in allowing the appellant to begin giving evidence on 30 November 2006 while monitoring his condition. Although there were genuine concerns about migraine, sleep and mood, the contemporaneous medical and legal evidence did not show that he was unable to give evidence or participate effectively. His later account of incapacity was unreliable, and the transcript showed that he could engage with detailed cross-examination. The conviction was therefore not unsafe on that ground.

2. The provocation direction was sufficient. The applicable approach, drawn from R v Smith (Morgan) [2001] 1 Cr App R 31 and AG for Jersey v Holley [2005] 2 Cr App R 588, requires consideration of actual loss of self-control and then the objective standard applicable to a person of the defendant’s sex and age. The jury had to assess the gravity of the alleged taunts for this appellant, including his asserted sensitivity about his mother and impotence. Although the judge did not repeat that point at every stage, the summing up as a whole made it clear.

3. The court declined to receive Professor Eastman’s fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. The statutory conditions were capable of being met in form, but the diagnosis of moderate depressive illness rested importantly on the appellant’s later account of symptoms. That account conflicted with his trial evidence, contemporaneous material and other evidence. The court could not rely on an expert opinion built on those unreliable factual premises.

4. Consequently, the fresh evidence did not support either diminished responsibility or an enhanced provocation case. The renewed ground concerning impotence added nothing independently.

1. Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction and sentence: [2009] EWCA Crim 734.
2. Crown Court at St Albans On 11 December 2006, convicted the appellant of murder and imposed life imprisonment with a minimum term of 16 years.