Winzar, R v (Reference by the Criminal Cases Review Commission Under S.9 of the Criminal Appeal Act)

Where a conviction is referred by the Criminal Cases Review Commission, Criminal Appeal Act 1995 section 14(4B) permits an application to advance grounds not forming part of the reference, including grounds previously considered and rejected by the Commission. No separate requirement of substantial injustice applies. However, a comprehensive Commission investigation creates a particularly high hurdle for fresh evidence: it must effectively demonstrate an error in the earlier analysis.

On a fresh-evidence appeal, the question remains whether the conviction is unsafe. The appellate court reviews rather than replaces the jury’s function and, in a difficult case, asks whether the evidence might reasonably have affected the trial jury’s verdict. Repeated expert evidence will rarely suffice without a compelling new perspective.

The appellant was convicted in July 2000 of murdering her husband by deliberately administering insulin, and received a life sentence. Her first appeal was dismissed by the Court of Appeal in [2002] EWCA Crim 2950.

In 2016 the Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995, having identified fresh medical evidence that natural causes might not safely be excluded. The appellant abandoned part of that reference and sought permission under section 14(4B) to advance further grounds. Those grounds challenged the immunoassay evidence of insulin, suggested sepsis-induced hypoglycaemia as a natural cause, and relied on spinal-injury evidence about the likely response to an injection.

The central issue was whether the new medical evidence rendered the conviction unsafe.

1. Appeal dismissed. The court refused permission to pursue the amended grounds and dismissed the appeal on the extant ground referred by the Criminal Cases Review Commission.

2. Section 14(4B) of the Criminal Appeal Act 1995 did not prevent the court from considering grounds based on matters which the Commission had already considered and declined to refer. Nor was the appellant required to show substantial injustice, as in a change-of-law case. Nevertheless, the Commission’s extensive inquisitorial investigation meant that genuinely fresh evidence would need effectively to expose an error in its analysis.

3. Applying R v Pendleton 2001 UKHL 66, the court remained a reviewing court and not the primary decision-maker. Its task was to decide whether the conviction was unsafe, using the question whether the evidence, if given at trial, might reasonably have affected the jury’s decision.

4. The spinal-injury evidence was accepted to the extent that an injection would likely have caused jerking and might have roused the deceased. It did not establish that he would have understood its cause or sought assistance. A normal potassium level was unusual in insulin-induced hypoglycaemia but was not diagnostic, given evidence that it occurs in a significant minority of such cases.

5. The proposed sepsis hypothesis was highly improbable and did not create a realistic differential diagnosis. It required profound infection not apparent on admission and an unrealistic rapid stabilisation of glucose metabolism. The clinical picture was congruent with exogenous insulin, so the cautious general concerns about immunoassay interference did not undermine the test results in this case. The purported fresh evidence neither diluted nor transformed the medical case against the appellant.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, refused permission to advance amended grounds and dismissed the appeal.
• Court of Appeal (Criminal Division): The appellant’s earlier appeal against conviction was dismissed: [2002] EWCA Crim 2950.
• Trial: Convicted of murder on 19 July 2000 and sentenced to life imprisonment with a minimum term of 15 years.