Murphy, R v

Further evidence relied on under section 23 of the Criminal Appeal Act 1968 cannot found a challenge to the safety of a conviction if it is incapable of belief. The court may assess its reliability against the evidence heard by the jury and its ability to address the decisive issue.

A sentence within the applicable attempted-murder guideline range, adjusted to reflect paragraph 5A of Schedule 21, will not be manifestly excessive without a sound basis for departing from that assessment.

The applicant was convicted by a jury at Carlisle Crown Court of attempting to murder her son. Her co-accused, another son, had pleaded guilty. The prosecution case was that text messages showed an agreement to kill the complainant before the co-accused stabbed him.

The applicant sought leave, out of time, to appeal against conviction on the basis of later accounts from the complainant and proposed medical records. She contended that the material undermined the conclusion that she had sent the messages. She also sought leave, substantially out of time, to appeal her sentence of 17 years’ imprisonment as manifestly excessive.

The central issues were whether the proposed material could support an unsafe-conviction appeal and whether the sentence was excessive.

1. The court refused all applications. It refused extensions of time and leave to appeal against both conviction and sentence.

2. The later accounts given by the complainant were technically fresh because they had not been available at trial. They were nevertheless incapable of belief for the purposes of section 23 of the Criminal Appeal Act 1968. The messages did not read as messages sent by one brother to cause trouble. At trial, despite persistent cross-examination, the complainant had not asserted that he had sent them. His later accounts remained vague, including as to the content of the messages, and followed a prison call in which the applicant asked him to tell the police that he had not been excessively drunk.

3. The jury had heard and assessed the complainant’s evidence on the central issue of authorship. The proposed medical records, whether or not they suggested that he could think rationally while in hospital, would not assist in determining who sent the messages. The fresh material therefore did not establish that the conviction was or might have been unsafe.

4. The sentencing judge had been entitled to find that the offence involved a knife brought to the scene and that the applicant’s messages contemplated killing by stabbing. The sentence of 17 years was at the bottom of the applicable range of 17 to 25 years under the Attempted Murder Guideline, adjusted to reflect paragraph 5A of Schedule 21 to the 2003 Act: see [2014] EWCA Crim 2763. There was no merit in the proposed sentence appeal.

• Court of Appeal (Criminal Division): renewed applications for leave to appeal, and for extensions of time, were refused: [2019] EWCA Crim 1274.
• Single judge of the Court of Appeal: refused leave to appeal against conviction and an extension of four days; those decisions were renewed before the full court.
• Crown Court at Carlisle: the applicant was convicted of attempted murder on 3 November 2016 and sentenced to 17 years’ imprisonment.