England and Wales Court of Appeal (Criminal Division) Decisions

Kimber, R v. [2000] EWCA Crim 71 (19th December, 2000)

Case No: 1998/05230/Y5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday 19th December 2000

LORD JUSTICE HENRY:

1. This is the judgment of the Court. On 23rd July 1998 in the Crown Court at Bristol before Mr Justice Owen, the appellant Kimber was convicted of murder. He now appeals against conviction with the leave of the Full Court. We allowed that appeal against conviction but ordered a retrial. We did not give reasons then because of shortage of time.

2. The reason for our grant of the retrial is that we were not sure that the summing-up to the jury of the medical evidence was adequate in the light of Luc Thiet Thuan -v- R [1996] 1 AER 1033, and, more particularly the recent House of Lords decision in R -v- Smith (Morgan) [2000] 3 WLR 654. Though the latter case had been heard in the Court of Criminal Appeal at the time of this trial, it had not then been reported, and of course the House of Lords hearing had not taken place. Having had the authorities drawn to our attention, we were not persuaded that the judge's careful summing-up in fact gave the jury the assistance necessary, in the light of Smith, for them to apply expert medical evidence to the issue of provocation. Consequently we were constrained to quash the conviction, and order a re-trial.