Regina v Borthwick: CACD 18 May 1998

Prior to the trial the appellant had been examined by a psychiatrist, but he refused to allow a more detailed examination to be undertaken and pleaded not guilty on the basis that he denied responsibility for the killing. He was convicted. Shortly afterwards he admitted that he was responsible for the homicide. The court was concerned that B’s state of mind may have reduced his ability to give rational instructions about his defence.
Held: The appeal succeeded. There was ‘overwhelming’ or ‘clear evidence’ that the defence of diminished responsibility would have succeeded at trial, and that the reason why the defence had not been advanced was itself consequent on the mental illness of the defendant.
Lord Bingham said: ‘From that lengthy recital of authority, it is plain that all applications to adduce fresh evidence under s 23 turn on their own peculiar facts . . But the cases do identify certain features which are likely to weigh more or less heavily upon the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision-making faculties are unimpaired not to advance before the trial jury a defence known to be available . . But even features such as these need not be conclusive objections in every case.’
Waller LJ said: ‘The wording of s 23 poses the question right at the outset whether it is necessary or expedient in the interests of justice to admit evidence in this court. We are very much alive to the fact that this court must not allow evidence to be admitted at this stage simply in order to allow the defendant to run a different defence in front of a second jury, particularly a defence that he could well have run the first time around. But equally, if there was overwhelming or clear evidence to demonstrate that a defence of diminished responsibility would have succeeded and there was clear evidence that the mental illness itself was a cause of a decision taken to run such defences as were run, or putting it another way not to run the defence of diminished responsibility, then the interests of justice would seem to require possibly the substitution of a verdict of manslaughter but at least to order a retrial.’
Waller LJ, Lord Bingham
[1998] EWCA Crim 1632, [1998] Crim LR 274
England and Wales
CitedRegina v Campbell 1987
Given psychiatric evidence given at the trial, the judge should have directed the jury not only on provocation but also on diminished responsibility. . .
CitedLuc Thiet Thuan v The Queen PC 2-Apr-1996
(Hong Kong) On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his . .
CitedRegina v Campbell CACD 25-Oct-1996
The defendant appealed against his conviction for murder. At trial he had pleaded provocation, but not that he suffered abnormality of mind. Subsequent evidence of his state of mind led to this referral. The court now received fresh evidence to . .

Cited by:
CitedGibson, Regina v CACD 11-Jan-2006
The defendant renewed has application for leave to appeal against his conviction for the murder of his daughter-in-law. The principle evidence against him was that of an accomplice. She had received letters to say that no further action would be . .
CitedRegina v Neaven CACD 15-May-2006
The defendant appealed his conviction for murder. Unknown to himself and his advisors he suffered schizophrenia at the time of the offence.
Held: The court upheld the paramount and fundamental importance of the principles in favour of one . .

These lists may be incomplete.
Updated: 27 March 2021; Ref: scu.154506