R v BWP

On a no-case submission involving non-insane automatism, once the defence has an evidential basis, the prosecution must provide evidence from which a properly directed jury could be sure that automatism did not apply. The judge must assess the totality of the evidence, including genuine disagreement between experts, but must not substitute her own view for the jury’s. Expert evidence that automatism is possible does not require withdrawal where the experts disagree about complete loss of control or whether the relevant cause was external. The jury may consider surrounding events and other primary evidence in that context. Under section 67 of the Criminal Justice Act 2003, the Court of Appeal may reverse an unreasonable ruling or one involving an error of principle. The ruling was reversed and a fresh trial ordered.

BWP was being tried in the Crown Court for murdering his wife. At the close of the prosecution case, the trial judge upheld a submission of no case to answer, accepting that the defence of automatism had an evidential basis and concluding that the psychiatric evidence could not permit a jury to be sure that automatism did not apply.

The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003. The central issues were whether the judge had oversimplified the expert evidence, wrongly excluded surrounding and primary evidence, and impermissibly substituted her own assessment for that of the jury.

Disposition. Leave to appeal was granted. The appeal was allowed, the no-case ruling was reversed, the jury was discharged, and a fresh trial on the count of murder was ordered.

1. Procedural framework. Under section 67 of the Criminal Justice Act 2003, the Court of Appeal could reverse the ruling if it was wrong in law, involved an error of law or principle, or was unreasonable. The court held that the ruling at least involved an error of principle and was not reasonable for the judge to have made. The court also rejected a procedural bar to additional pertinent arguments supporting the existing appeal, where the respondent had an opportunity to answer them and no prejudice was caused. It would not, however, permit an entirely different basis of appeal to be introduced.
2. Expert evidence and the jury’s role. The fact that all psychiatrists accepted that automatism was possible did not resolve the no-case issue. The evidence disclosed genuine professional disagreement about whether there had been a complete loss of voluntary control and whether a dissociative state arising from depression could constitute an external event. Those issues were for the jury. The judge had adopted an oversimplified analysis and had substituted her own view for that of the jury. This was not a R v Brennan case ([2014] EWCA Crim 2387).
3. Other evidence. The jury was entitled to analyse the events in the minutes, days and weeks before the incident, including whether they collectively amounted to an external factor. It was also entitled to consider the primary evidence and the quality of the respondent’s acts in the context of the competing psychiatric opinions. The judge was therefore wrong to conclude that there was no other evidence capable of supporting the prosecution case.
4. Automatism directions. The court expressed reservations about the implicit classification of the case as involving sane automatism. It considered that the directions inadequately reflected the distinction between sane and insane automatism. Since the point had not been fully argued, the court left the scope and content of any directions to the trial judge at the fresh trial.
5. Further orders. The case was referred to the Lead Presiding Judge for directions concerning venue, release, and the identity of the judge who might conduct the fresh trial.

1. Court of Appeal (Criminal Division): Leave to appeal was granted under section 58 of the Criminal Justice Act 2003. The appeal was allowed and the no-case ruling was reversed: [2024] EWCA Crim 113.
2. Crown Court: At the close of the prosecution case in a murder trial, the judge upheld a submission of no case to answer. The jury was retained pending the prosecution’s application to appeal.