REGINA v SANJAY NIJHAWAN

Admission of fresh evidence on a criminal sentence appeal does not determine the appeal. The court must first apply the statutory criteria for fresh evidence and then assess the evidence with the record as a whole.

Where a sentencing judge has heard extensive psychiatric evidence, the Court of Appeal will not interfere unless the sentence was wrong in principle or manifestly excessive. A later expert opinion based on limited information may be rejected where contemporaneous treating experts considered the relevant issue and were better placed to assess it.

The appellant had pleaded guilty to manslaughter on the ground of diminished responsibility after killing his wife. The Crown Court at Guildford imposed a life sentence with a minimum term of 10 years, less time spent on remand.

Some four years later, the appellant sought an extension of time, leave to appeal against sentence and permission to adduce fresh psychiatric evidence. The evidence concerned whether antidepressant medication had caused or contributed to the killing. The central issues were whether the evidence satisfied the statutory requirements for admission and whether, once admitted, it showed that the sentence should be reduced.

1. The court granted the extension of time, admitted Professor Healy’s evidence and granted leave to appeal. The criteria in section 23 of the Criminal Appeal Act 1968 required consideration of whether the evidence appeared capable of belief, might afford a ground for allowing the appeal, would have been admissible below and had a reasonable explanation for not being adduced earlier. Those matters substantially overlapped on the facts.
2. The appeal was nevertheless dismissed. Without the fresh evidence, the sentence was neither wrong in principle nor manifestly excessive. The sentencing judge was entitled to find that the appellant was dangerous and to impose a life sentence. Having presided over the trial, he was particularly well placed to assess culpability. The credit for the guilty plea was appropriate.
3. The fresh evidence had to be assessed alongside the contemporary evidence. The treating and examining psychiatrists had known about the appellant’s medication, had considered whether it contributed to the killing and had concluded that it did not. They were better placed than Professor Healy, whose opinion was based principally on a relatively brief telephone interview, to determine what role the medication had played.
4. The court found no proper basis to doubt the contemporaneous psychiatric evidence. Professor Healy’s assumption that the killing could only be explained by either deterioration in the underlying mental condition or medication was unsound. The marital conflict, threatened divorce, financial pressures, depression and fear of humiliation provided an evidential basis for deterioration in the appellant’s mental state and for the killing without resort to speculation about medication.
5. Accordingly, the appeal against sentence was dismissed after the fresh evidence had been admitted. A representation order was made for leading counsel.

• Crown Court at Guildford: On 7 October 2016 the appellant was convicted of manslaughter on the ground of diminished responsibility. On 1 December 2016 he was sentenced to life imprisonment with a minimum term of 10 years, less time spent on remand.
• Court of Appeal (Criminal Division): The court granted an extension of time, admitted fresh evidence and granted leave to appeal, but dismissed the appeal against sentence.