Jackson v R.

On an appeal founded on fresh psychiatric evidence, the Court of Appeal must itself decide whether the conviction is unsafe by assessing all the evidence. A new diagnosis, or evidence capable of supporting one, does not undermine a jury’s rejection of diminished responsibility unless it materially supports the suggested causal link between the abnormality of mind and the killing.

Where the new expert opinion rests on an inaccurate or incomplete account of the events and other evidence shows pre-existing hostility, planning and alternative explanations for the conduct, the conviction may remain safe. Intoxication which reduces inhibitions is not diminished responsibility in law.

The appellant was convicted of murder in December 1992. His sole live defence was diminished responsibility. The psychiatric evidence described a severe personality disorder, but the jury rejected the defence.

About 20 years later, the appellant sought leave and a substantial extension of time to appeal. He relied on evidence that he had suffered physical and sexual abuse at residential school, and on new psychiatric evidence of possible PTSD and ADHD. He contended that learning that the victim had committed child sexual offences, and seeing him carrying a child, triggered a traumatic reaction which substantially impaired his responsibility.

The court heard the fresh psychiatric evidence and considered whether it rendered the murder conviction unsafe.

1. Leave to appeal and the extension of time were granted, but the appeal was dismissed. The court formally received the fresh psychiatric evidence under section 23 of the Criminal Appeal Act 1968. It held that the conviction was safe.

2. The question whether a conviction is safe is for the Court of Appeal itself. The court applied the approach identified in Burridge [2010] EWCA Crim 2847 and assessed all the evidence, including the evidence available at trial and the new material.

3. The court assumed in the appellant’s favour, without deciding, that he had suffered the alleged physical and sexual abuse and that he might have had asymptomatic PTSD at the time of the killing. Those assumptions did not assist him. The proposed psychiatric explanation depended on a supposed sudden discovery of the victim’s past sexual offending and a consequent acute reaction on seeing the victim with a child.

4. The contemporaneous evidence disproved that factual premise. The appellant had known of the victim’s past for at least a month, had longstanding hostility and other motives, had made threats and armed himself before going to the boat, and had used violence before seeing the victim carry a child. His later accounts to the new experts omitted or contradicted material evidence. The new reports therefore did not establish a causal link between the alleged trauma, any PTSD, and the killing.

5. Heavy alcohol and cannabis use provided a further explanation for reduced inhibitions, but intoxication is not diminished responsibility in law. The appellant also displayed serious antisocial behaviour before attending the residential school. The fresh evidence gave no reason to doubt the jury’s conclusion that his mental responsibility was not substantially impaired.

Obiter: had murder been substituted with manslaughter, the court considered that a discretionary life sentence would have been the only proper sentence. Release remained a matter for the Parole Board’s current-risk assessment.

• Court of Appeal (Criminal Division): granted leave to appeal, extended time, received fresh psychiatric evidence, and dismissed the appeal as the conviction was safe.
• High Court of Justice: the cover sheet records that the appeal was from Mr Justice Sedley, but gives no lower-court disposition or citation.
• Trial court: the appellant was convicted of murder in December 1992 after the jury rejected diminished responsibility.