Emma-Jayne Magson v The Queen

Fresh expert evidence may be received under section 23 of the Criminal Appeal Act 1968 where its admission is necessary or expedient in the interests of justice. The court must address credibility, potential to afford a ground of appeal, admissibility, and the explanation for the evidence not having been adduced at trial.

Where credible psychiatric evidence, not explored at trial, provides a substantial basis for diminished responsibility and leaves the court in doubt as to the safety of a murder conviction, the appeal must be allowed. The appellate court need not decide whether a jury would have accepted the defence. A retrial may be ordered.

The appellant was convicted of murder at Leicester Crown Court in November 2016 and sentenced to life imprisonment with a 17-year minimum term. She admitted inflicting the fatal stab wound but relied on self-defence. The trial judge did not leave loss of control to the jury.

On appeal, she relied on fresh psychiatric and psychological evidence. It was said to establish emotionally unstable personality disorder and pervasive developmental disorder, and to support a partial defence of diminished responsibility. Leave was granted by the Court of Appeal in [2018] EWCA Crim 2674.

The central issue was whether the fresh evidence should be received and, if so, whether its absence at trial rendered the murder conviction unsafe.

1. Appeal allowed and retrial ordered. The court received the evidence of Drs Sinclair, Davies and Garrett under section 23 of the Criminal Appeal Act 1968. The evidence was capable of belief, admissible, and capable of providing a ground for allowing the appeal because it revealed a diminished-responsibility case which had not been pursued at trial.

2. The significant issue was the explanation for the failure to obtain and adduce the evidence before the jury. The court repeated the general warning against changing defences after an unsuccessful trial and against unjustified expert shopping. However, the later specialist assessment had revealed an unusual neuro-developmental profile, more severe affective symptoms, and low verbal IQ which had not been appreciated by the psychiatrists before trial. This provided a reasonable explanation in the particular circumstances.

3. The court stressed that, where a homicide defendant may have autistic-spectrum difficulties requiring specialist assessment, counsel and instructed psychiatrists must consider whether a psychological assessment is justified. That is not a speculative exercise. But it should be discussed once a real possibility arises. The prosecution, defence and, where appropriate, the trial judge share responsibility for ensuring the issue is properly addressed.

4. Both psychiatric experts ultimately considered that the appellant had an abnormality of mental functioning arising from recognised medical conditions which substantially impaired relevant abilities and was a significant contributory factor in the killing. Applying the safety approach in R v Graham (H.K.); R v Kansal; R v Ali (Sajid); R v Marsh [1997] 1 Cr. App. R. 302, the court was left in doubt whether the murder conviction was right. It was not for the court to decide whether a jury would have found diminished responsibility proved. Since that option had not been left to the jury, the verdict was unsafe.

5. The court did not determine the remaining grounds concerning effective participation or loss of control. Those matters could be considered at the retrial, when the trial judge would assess any assistance needed for effective participation.

• Court of Appeal (Criminal Division), 29 July 2022: Following the retrial, the appellant's appeal against conviction was dismissed and her renewed application for leave to appeal against sentence was refused.
• Crown Court: On 5 March 2021, at the retrial ordered in this case, the appellant was convicted of murder and received the same sentence.
• Court of Appeal (Criminal Division): In this judgment, [2020] EWCA Crim 27, the court allowed the appeal against the original conviction and ordered a retrial.
• Crown Court at Leicester: On 4 November 2016, the appellant was convicted of murder. On 7 November 2016, she received life imprisonment with a 17-year minimum term.