Workman v R.

On an application to adduce fresh evidence in a criminal appeal, the Court of Appeal must decide for itself whether the evidence makes the conviction unsafe. The statutory factors under Criminal Appeal Act 1968 section 23 inform the interests-of-justice assessment, but no individual factor is determinative.

A trial judge must leave loss of control only where sufficient evidence raises the issue. This is not discretionary and does not depend on the defence having positively advanced it. Background acrimony and an equivocal statement do not, without evidence capable of satisfying a statutory qualifying trigger, require the issue to be left to the jury.

The appellant was convicted at Preston Crown Court of the murder of his wife and sentenced to life imprisonment with a minimum term of 17½ years. His trial case was that she accidentally stabbed herself while he was restraining her after she approached him with a knife.

On appeal, he relied on fresh computer, medical and biomechanical evidence, contending that it undermined the prosecution case and made the conviction unsafe. He also contended that the trial judge should have left loss of control to the jury, although that had not formed part of his case at trial. He renewed his application for leave to appeal against sentence.

1. The appeal against conviction was dismissed. The court admitted the fresh computer and medical evidence already authorised, but held that it did not affect the safety of the conviction. The computer evidence did not undermine the Crown case, which had not depended upon the deceased being attacked while typing. The medical evidence was inconclusive as to whether she could have moved after receiving the wound.

2. The court refused leave to adduce the proposed biomechanical evidence under section 23 of the Criminal Appeal Act 1968. The trial team had made an informed and reasonable tactical decision, with the appellant’s concurrence, to rely on other expert evidence. The proposed modelling and experiments could not reliably recreate a violent, dynamic struggle where the parties’ movements, positions and forces were uncertain. At its highest, the evidence showed only that the appellant’s auto-recoil account was possible, a possibility already explored before the jury.

3. Applying Dawes [2013] EWCA Crim 322, the court held that loss of control must be left only if sufficient evidence raises it. The appellant’s case was that he remained in control and that the stabbing was accidental. The evidence of an acrimonious divorce and a vague interview remark did not raise a qualifying trigger under section 55(3) of the Coroners and Justice Act 2009. The judge was therefore right not to leave the defence.

4. The renewed application for leave to appeal against sentence was refused. Although the 17½-year minimum term was severe, it was not manifestly excessive.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.

• Crown Court at Preston The appellant was convicted of murder on 19 December 2011 and sentenced to life imprisonment with a minimum term of 17½ years.