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 support a defence of diminished responsibility where the issue had not been raised at trial.
Held: There must be a retrial. Diminished responsibility is an optional defence, to be advanced, if he so wishes, by the defendant.
The court considered whether it was bound by previous decisions of the Privy Council. Lord Bingham CJ said: ‘If we were entitled to choose between the competing views expressed in the Privy Council decision, we should face a difficult task . . We do not, however, conceive that it is open to us to choose between these competing views. The previous decisions of this court are binding upon us. The decision of the Privy Council is not. It appears to us that unless and until the previous decisions of this court are authoritatively overruled, our duty and that of trial judges bound by the decisions of this court is to apply the principles which these cases lay down. If there is an effective re-trial in this case, and if provocation is an issue, it will be the duty of the trial judge to apply the law binding upon him as it then stands.’
Lord Bingham CJ discussed the admission of new medical evidence on appeal: ‘Under the section, the Court of Appeal must therefore primarily consider what it thinks necessary or expedient in the interests of justice, but must pay particular regard to the four matters listed in subsection (2). Here, the evidence which we are asked to receive appears to us to be capable of belief, and the Crown do not suggest otherwise. It appears to us that the evidence might afford a ground for allowing the appeal. It is plain that the evidence would have been admissible in the proceedings from which the appeal lies on an issue (diminished responsibility) which is the subject of the appeal. The reason given for failing to adduce the evidence in the proceedings before the jury is that the evidence was not then available to the appellant, and that there has in the intervening decade been an advance in medical science which permits a more complete picture of the appellant’s mental condition to be presented than could then have been easily done. This Court has repeatedly underlined the need for defendants in criminal trials to advance their full defence before the jury and call any necessary evidence at that stage. It is not permissible to advance one defence before the jury and, when that has failed, to devise a new defence, perhaps many years later, and then seek to raise that defence on appeal. It is, however, plain that the failure of the appellant’s advisers to advance a defence of diminished responsibility at the trial was not a matter of tactical decision but of practical necessity: since the expert witness on whom the defence relied found it impossible to support a defence of diminished responsibility, it was rightly judged to be improper to advance such a defence. Since the case has now been referred back to this Court for reconsideration, we were bound to judge the application to adduce this evidence according to our judgment of what the interests of justice required. We concluded that in all the circumstances we should receive this evidence and accordingly had the benefit both of studying the written reports of Dr. Fenwick and Professor Fenton and of hearing their oral evidence.
Having received this new evidence and considered all the material drawn to our attention and all the arguments addressed to us on both sides, we are of opinion that a defence of diminished responsibility, if based on the evidence now available, might well succeed, and might well have succeeded at the trial if then advanced along the present lines. It follows that in our judgment this conviction is unsafe and we must allow the appeal.’
Judges:
Lord Bingham CJ
Citations:
[1996] EWCA Crim 1206, [1997] 1 Cr App R 199
Statutes:
Homicide Act 1957 2(1) 3, Criminal Appeal Act 1968 17(1)(a)
Jurisdiction:
England and Wales
Citing:
Not followed – Luc 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 . .
Cited – Regina 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. . .
Cited by:
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Cited – 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 . .
Cited – Regina v Parker CACD 25-Feb-1997
The defendant appealed his conviction for murder, saying that his defence of provocation should have been left for the jury.
Held: Not following Luc, it was open to admit relevant evidence on the defendant’s capacity for self-control. Having . .
Cited – Adolphus Campbell v The State PC 20-Aug-1999
PC (Trinidad and Tobago) The defendant appealed his conviction for murder. The Board considered whether the Court of Appeal should consider additional medical evidence. He was said to have attacked the deceased, . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Crime
Updated: 08 October 2022; Ref: scu.148870