Brown v R.

On a criminal appeal based on fresh expert evidence, the Court of Appeal must first decide whether to receive the evidence under section 23 of the Criminal Appeal Act 1968. If it is received, the decisive question is whether, assessed with all the trial evidence, it makes the conviction unsafe.

A lesser alternative verdict need be left only where it is a realistic issue on the evidence. The judge must consider whether its absence forces an unrealistic choice between conviction on the charged offence and acquittal. In a planned, multi-handed armed attack, a defendant found to have participated may properly be convicted of murder where the jury are sure that he knew a knife might be used to kill or cause grievous bodily harm.

Brown v R was an appeal from a murder conviction at the Central Criminal Court. The appellant had been convicted of participating, either as principal or through joint enterprise, in a planned attack on a Brixton greengrocer in which the victim was fatally stabbed. He was sentenced to life imprisonment with a 20-year minimum term.

After trial, a clinical psychologist reported that the appellant had a very low IQ and learning difficulties. The appellant sought to rely on that fresh evidence to challenge the admissibility of his police interviews, the conduct of the trial, and the directions on joint enterprise. He also contended that manslaughter should have been left as an alternative verdict and that his intellectual functioning reduced his culpability for sentence.

1. The court granted an extension of time and leave to appeal conviction, but dismissed the appeal. Although the expert evidence had been heard de bene esse, it was not admitted because it afforded no ground for allowing the appeal.

2. Under section 23 of the Criminal Appeal Act 1968, the court first decides whether fresh evidence should be received and then whether it makes the conviction unsafe. The ultimate assessment is for the appellate court itself, not a prediction of what the jury might have done. The court accepted that Dr Mann’s evidence was capable of belief and would have been admissible, but held that it did not undermine the safety of the conviction.

3. The appellant was entitled to an appropriate adult during police interview, but a solicitor was present and actively represented him. On the expert evidence, he was assertive, capable of resisting pressure, and able to understand and answer questions. There was no realistic prospect that the interviews would have been excluded. The jury had already been told that he was illiterate and not very bright, and the fresh material would not have required materially different questioning or directions.

4. The joint-enterprise directions required the jury to decide what this appellant intended and knew. The judge had adequately tailored them to his intellectual functioning. The fresh evidence did not create a realistic basis for concluding that he had merely accompanied the attackers without intending encouragement, or that he failed to appreciate that a knife might be used to kill or cause grievous bodily harm.

5. The judge was not required to leave manslaughter. Applying R v Coutts [2006] UKHL 39, a lesser alternative must be realistic on the evidence. Once the jury were sure that the appellant participated in this planned attack involving weapons and a knife, it was not feasible that he did not foresee the knife’s use. The murder conviction was safe.

6. The application for leave to appeal sentence was also refused. There was no basis for finding that the appellant’s intellectual deficit reduced culpability under paragraph 11(c) of Schedule 21 to the Criminal Justice Act 2003. The planning, revenge motive, use of a knife and injuries to two further victims justified the 20-year minimum term.

• Court of Appeal (Criminal Division) In [2011] EWCA Crim 1606, the court granted leave to appeal conviction and an extension of time, but dismissed the conviction appeal. It refused leave to appeal sentence.
• Central Criminal Court On 3 October 2008, the appellant was convicted of murder before His Honour Judge Forrester and sentenced to life imprisonment with a minimum term of 20 years, less qualifying remand time.