The defendants had been separately convicted of murder several years ago. They sought the quashing of the convictions and substitution of convictions for manslaughter on the grounds of diminished responsibility.
Held: The appeal of Erskine succeeded, but that of Williams failed. In the first case there had been evidence to support the defence now promoted. In Williams’ case there was not.
The decision whether to admit fresh evidence on an appeal is fact specific and the court has a wide discretion, focusing on the interests of justice. The fact that the issue was not raised at trial does not automatically preclude its reception. However, if an appellant were allowed to advance on appeal a defence which could and should have been put before the jury, the trial process would be subverted. If a defence was not raised at trial which could have been raised, or evidence was not deployed which was available to be deployed, it is unlikely to be in the interests of justice to allow it to be raised on appeal unless a reasonable and persuasive explanation was given for the omission.
The critical test is whether the receipt of the evidence is ‘necessary or expedient in the interests of justice’, and that is a highly fact-specific question.
In answering that question, counsel had produced to the court very great quantities of case law citations. The result had been an increase in the time taken without an improvement in quality. The court set out guidelines which should restrict the volume of case law to be cited. Where a defendant appealed against a conviction for murder raising the defence of diminished responsibility for the first time on that appeal, the legal references should be limited to the statute and to Pearson.
Lord Judge, CJ said: ‘the trial process demands that the defendant, no doubt after considering legal advice, must decide which defence to advance. In an ideal world, of course, if he were responsible for the killing, he would admit it. But even if he is responsible, he may, and often does, choose to plead not guilty. What he cannot do is to advance such a defence and then, after conviction, seek to appeal in order to advance an alternative defence, such as diminished responsibility. There is one trial, and that trial must address all relevant issues relating to guilt and innocence.’
Judges:
Lord Judge, Lord Chief Justice, Lord Justice Thomas and Mr Justice Treacy
Citations:
[2009] EWCA Crim 1425, Times 22-Jul-2009, [2009] 2 Cr App R 29, [2010] 1 WLR 183, [2010] Crim LR 48
Links:
Statutes:
Criminal Appeal Act 1968 832, Criminal Appeal Act 1995
Jurisdiction:
England and Wales
Citing:
Cited – Practice Direction (Criminal Proceedings: Consolidation) CACD 8-Jul-2002
. .
Cited – Regina v Criminal Cases Review Commission ex parte Pearson Admn 18-May-1999
The defendant sought judicial review of the decision not to refer her case back to the court of appeal. She had been convicted of the murder of her hsuband’s new partner. She said it had been her husband.
Held: The court set out the approach . .
Cited by:
Cited – National Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Cited – Kenyon v Regina CACD 11-May-2010
The defendant appealed against her conviction for murder, based upon her own informal confessions to third parties.
Held: The appeal was dismissed. There were proper reasons choices made at trial about what evidence should be put forward, and . .
Cited – Brown v The Queen PC 9-Feb-2016
Court of Appeal of Jamaica – Appeal against conviction for murder – challenge as to capacity to plead.
Held: The appeal against conviction failed, but the appeal against sentence succeeded. . .
Cited – Rogers, Regina v CACD 1-Jul-2016
The court was asked as to as to the circumstances in which s.23 of the 1968 Act applies to fresh evidence or other information which an appellant may seek to adduce before this court on an appeal against sentence.
Held: The rules applicable to . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 30 July 2022; Ref: scu.347707
