Hunnisett, R. v

On an appeal relying on fresh evidence, the Court of Appeal must decide whether receiving it is necessary or expedient in the interests of justice under section 23 of the Criminal Appeal Act 1968. In a difficult case, the court should ask whether the evidence might reasonably have affected the trial jury’s verdict.

Fresh expert psychiatric evidence will not ordinarily be admitted where it substantially revisits evidence assessed and rejected at trial. That is particularly so where the new diagnosis depends on late disclosures by an unreliable narrator, lacks a credible explanation for their earlier omission, or draws on developments after the offence and trial. The court must avoid converting the trial into a preliminary hearing for successive expert opinions.

The appellant was convicted of murder at Lewes Crown Court in 2012. Diminished responsibility and loss of control were left to the jury, which heard extensive psychiatric evidence. Her renewed application for leave to appeal against conviction was refused in 2015: [2015] EWCA Crim 523.

The Criminal Cases Review Commission referred the conviction to the Court of Appeal after Professor Shaw, who had given prosecution evidence at trial, changed her opinion. She later considered that the appellant had suffered a psychotic illness at the time of the killing and that diminished responsibility had been available. The Crown relied on contrary expert evidence and opposed admission of the new report.

The central issue was whether the proposed psychiatric evidence should be received as fresh evidence and, if so, whether it rendered the murder conviction unsafe.

1. The application to admit fresh evidence was refused and the appeal was dismissed. The court applied section 23 of the Criminal Appeal Act 1968 and the safety test in section 2(1)(a) of the 1965 Act. In a case of difficulty, the relevant question is whether the fresh evidence might reasonably have affected the trial jury’s decision, as stated in Pendleton [2001] UKHL 66.

2. The proposed report did not provide a proper basis to reopen the verdict. In all essential respects it revisited matters explored by the psychiatric evidence and other material before the jury in 2012. The jury had considered the appellant’s claimed mission against paedophiles, the alleged delusional ideas said to support the revised diagnosis, and the defence of diminished responsibility.

3. The court was not persuaded that the appellant’s later account was credible. It depended on disclosures made many years after trial by a person consistently assessed as an unreliable and inconsistent narrator with a pronounced tendency to fantasise and lie. There was no credible explanation for the failure to disclose the now-significant material to the numerous clinicians who assessed her before trial.

4. Further, the revised diagnosis relied in part on changes in mental health after the killing and trial. Those later developments could not determine the appellant’s mental condition when Mr Bick was killed. The court reached its conclusion without relying on Dr Blackwood’s opinion, although it found his analysis compelling.

5. There was therefore no proper basis to receive the report or to impugn the safety of the conviction. The appeal was dismissed.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court refused to admit the proposed fresh psychiatric evidence and dismissed the appeal against conviction: [2021] EWCA Crim 265.

• Court of Appeal (Criminal Division): The appellant’s application for leave to appeal against the 2012 murder conviction was refused: [2015] EWCA Crim 523.

• Crown Court at Lewes: In 2012, the appellant was convicted by a jury of the murder of Peter Bick and sentenced to life imprisonment.