England and Wales High Court (Administrative Court) Decisions

1. THE LORD CHIEF JUSTICE: By this application, made with leave, Maria Pearson challenges the decision of the Criminal Cases Review Commission not to refer her conviction to the Court of Appeal Criminal Division. The Commission is a recently-established statutory body, and this is the first challenge to one of its decisions to come before the courts on a contested application for judicial review. The application is of obvious importance to the applicant; it also has an important bearing on the operation of the Commission and the relationship between the Commission and the courts. This is the judgment of the court.

2. The applicant was born on 12 March 1956. She had an unhappy and disturbed childhood, experiencing both physical and sexual abuse and spending a period of time in the care of a local authority. She was twice married at a very young age before, in July 1983, meeting and forming a relationship with Malcolm Pearson. He was a man with a criminal record which included offences of violence. The applicant was already the mother of two children, and in February 1985 a third child Rachel, of whom Malcolm Pearson was the father, was born. The relationship between the applicant and Malcolm Pearson was stormy and violent. As the trial judge was later to put it,

3. The applicant went through a bigamous form of marriage with Malcolm Pearson in February 1986, and they separated in the following month. Rachel was made the subject of an interim care order in April. The applicant was ousted from the family home in May, and in the same month she was charged with bigamy. In the weeks and months that followed there were a number of incidents of violence, abuse and criminal damage listed in a summary provided by the applicant to the Commission. When his relationship with the applicant broke up, Malcolm Pearson formed a new relationship with a young woman called Janet Newton. The applicant was deeply hostile and resentful, fearing that Miss Newton (who now occupied the family home with Pearson) would enable Pearson to win the custody of Rachel from the applicant. It was against this fraught background that the applicant, on 18 October 1986, confronted Miss Newton in the street and stabbed her 17 times with a knife which the applicant had apparently bought some days earlier.

4. The applicant was charged with murder and tried before Ian Kennedy J and a jury in the Teesside Crown Court. She was defended by very able leading counsel, and advanced as her sole defence that it was Malcolm Pearson and not she who had killed Miss Newton. There was also some evidence of provocation, not relied on by the applicant, on which the judge directed the jury. The issues for the jury accordingly were whether the applicant had killed Miss Newton and, if so, whether she had been provoked. On 24 July 1987 the applicant was convicted of murder and sentenced to life imprisonment.

5. Trial counsel and solicitors advised against an appeal against conviction, but the applicant changed her legal advisers and on 15 April 1988 gave notice of an application to apply for leave to appeal against conviction out of time. Among the grounds then advanced on her behalf was this:

6. On 17 July 1990 Mr Michael Mansfield QC settled revised grounds of application for leave to appeal out of time. Annexed to these grounds was a statement by the applicant admitting, contrary to her case at trial, that she had killed Miss Newton. The applicant now sought to place a “fresh and truthful account” of the facts before the court and to raise “the dual defences of self-defence and provocation set against a personal background of turmoil and oppression brought about by the victim and Malcolm Pearson”. This application came before the Court of Appeal (Watkins LJ, Boreham and Tucker JJ) on 30 April 1991 and was roundly dismissed. No reliance was placed by the applicant on section 2 of the Homicide Act 1957, and the court in its brief judgment made no reference to diminished responsibility. There was indeed at that stage no medical report which would have founded any submission on behalf of the applicant under the section.

7. In December 1994 the applicant asked the Home Secretary to refer her case back to the Court of Appeal under section 17(1)(a) of the Criminal Appeal Act 1968. The request was made on the ground that the applicant’s responsibility at the time of the killing had been impaired by an underlying personality disorder, aggravated by the battered women syndrome, and a detailed psychiatric report by Dr Gillian Mezey was submitted in support of the request. The Home Office on 10 May 1996 notified the applicant that the Home Secretary was not minded to refer the application to the court and gave reasons for that provisional decision. On 6 March 1997 counsel submitted a response to this letter, seeking to rebut the reasons for non-referral advanced by the Home Secretary. The Home Office had not replied to this document when, with effect from 1 April 1997, the Criminal Cases Unit of the Home Office transferred its outstanding cases to the Commission. A Committee of three Commissioners considered the applicant’s application at a series of meetings: at a meeting on 23 September 1997 the Committee reached a provisional conclusion not to refer the case to the Court of Appeal; on 30 September 1997 the Committee decided to consider the case further; on 10 October 1997 the Commission asked the applicant for information to support her allegations of abuse, and in January 1998 the applicant responded with a detailed summary to which reference has already been made; at a third meeting on 3 March 1998, two Commissioners favoured referral and the third wanted more time in which to consider his decision; at a fourth meeting on 9 March 1998 there was some difference of view among the Commissioners; at a fifth meeting on 21 April 1998 the Committee concluded that the Court of Appeal might well admit the fresh evidence now available relating to the applicant’s mental condition, but did not think that the Court of Appeal would find that there was evidence that any abnormality of the applicant’s mind substantially impaired her responsibility for her action in killing Miss Newton. On 7 May 1998 the Commission wrote to the applicant’s solicitor informing him that the Commission was not minded to refer the applicant’s case to the Court of Appeal, and enclosing a detailed statement of its reasons. This communication provoked a response on behalf of the applicant, submitted on 11 August 1998, and a further medical report. The Committee met for the sixth and last time on 15 September 1998, when conclusions adverse to the applicant were reached on the likelihood both of the Court of Appeal receiving the applicant’s fresh evidence and of it quashing her conviction. On 17 September 1998 the Commission’s reasons for deciding against referral of the applicant’s conviction to the Court of Appeal were signed and they were promptly sent to the applicant. On 29 January 1999 the applicant gave notice of application for leave to apply for judicial review and leave was granted on 17 February.

8. It is essential to the health and proper functioning of a modern democracy that the citizen accused of crime should be fairly tried and adequately protected against the risk and consequences of wrongful conviction. To this end, police operations to investigate crime and interrogate suspects are closely controlled by statutes, codes and rules; the conduct of prosecutions is entrusted to an independent, professional prosecuting authority; and legal aid is made available to enable all but the very well-to-do to defend themselves in serious cases. The main protection of the citizen accused of serious crime is, however, to be found in our system of trial by judge and jury. This system is so familiar as to require no description. But we draw attention to two characteristic features of jury trial germane to this application. First, the procedure is adversarial. There is no duty on the trial judge, as in an inquisitorial proceeding, to investigate what defences might, if pursued, be open to a defendant, nor to interrogate or call witnesses. It is the function of the judge to direct the jury on the relevant law and to summarise (perhaps very briefly) the evidence, and to define the issues raised by the prosecution and the defence, including any possible defence disclosed by the evidence even if not relied on by the defendant. The judge need not, and should not, go further. Secondly, the decision on the defendant’s guilt is made following a trial, continuous from day to day, by a jury assembled only for that trial, with no responsibility for the proceedings before the trial begins or after it ends. Thus the decision-making tribunal must reach its decision on the argument and evidence deployed before it at a final, once-for-all, trial. A defendant may quite properly put forward defences cumulatively and alternatively at a single trial but not serially at different trials.

9. It has been recognised that trials by judge and jury may on occasion result in wrongful convictions. The Court of Appeal Criminal Division, as successor to the Court of Criminal Appeal, exists to correct such errors in appeals brought before it. Thus the mandatory duty of the Court of Appeal, laid down in section 2 of the Criminal Appeal Act 1968, is to allow an appeal against conviction if the Court think that the conviction is unsafe and to dismiss such an appeal in any other case. The Court of Appeal is empowered by section 7 of the 1968 Act, on allowing an appeal against conviction, to order an appellant to be retried if it appears to the court that the interests of justice so require, and by section 23 to receive fresh evidence.

10. The expression “unsafe” in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done ( R v Cooper [1969] 1 QB 267 at 271). If, on consideration of all the facts and circumstances of the case before it, the court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the court will consider the conviction unsafe. In these less obvious cases the ultimate decision of the Court of Appeal will very much depend on its assessment of all the facts and circumstances.

11. So far as relevant to this application, section 23 of the 1968 Act now provides:

12. This power has evolved over the years. In section 9 of the Criminal Appeal Act 1907 the Court of Criminal Appeal was empowered to receive new evidence if the Court thought it necessary or expedient in the interest of justice. By section 5 of the Criminal Appeal Act 1966, this power of the Court to receive fresh evidence became a duty if certain conditions were satisfied:

13. As originally enacted in the 1968 Act, section 23 again conferred a general power to receive fresh evidence if the Court thought it necessary or expedient in the interests of justice, and also a mandatory duty to receive such evidence subject to the conditions in section 5 of the 1966 Act, reproduced in section 23(2) of the 1968 Act. Under section 23 as it now stands, it is plain that the Court of Appeal has a discretion to receive evidence not adduced in the trial court if the court think it necessary or expedient in the interests of justice to receive it. The Court of Appeal is never subject to a mandatory duty to receive the evidence, but is bound in considering whether to receive the evidence or not to have regard in particular to the specific matters listed in subsection (2). The Court of Appeal is not precluded from receiving fresh evidence if the conditions in subsection (2)(a), (b), (c) and (d) or any of them are not satisfied, but the Court would for obvious reasons be unlikely to receive evidence which did not appear to it to be capable of belief, or which did not appear to it to afford any ground for allowing the appeal, or which would not have been admissible in the trial court. The Court of Appeal would ordinarily be less ready, and in some cases much less ready, to receive evidence which the appellant had failed without reasonable explanation to adduce at the trial, since receipt of such evidence on appeal tends to subvert our system of jury trial by depriving the decision-making tribunal of the opportunity to review and assess the strength of that fresh evidence in the context of the case as a whole, and retrials, although sometimes necessary, are never desirable. On any application to the Court of Appeal to receive fresh evidence under section 23 in an appeal against conviction, the question which the Court of Appeal must always ask itself is this: having regard in particular to the matters listed in subsection (2), does the Court of Appeal think it necessary or expedient in the interests of justice to receive the new evidence? In exercising its statutory discretion to receive or not to receive fresh evidence, the Court of Appeal will be mindful that its discretion is to be exercised in accordance with the statutory provision and so as to achieve, in the infinitely varying circumstances of different cases, the objective for which the discretion has been conferred. The exercise of this discretion cannot be circumscribed in a manner which fails to give effect to the statute or undermines the statutory objective, which is to promote the interests of justice; the Court will bear in mind that the power in section 23 exists to safeguard defendants against the risk and consequences of wrongful conviction.

14. The power to order retrial was first conferred on the Court of Appeal by section 1 of the Criminal Appeal Act 1964, but the power was only exercisable where an appeal against conviction was allowed by reason only of the reception or availability of fresh evidence. This provision was re-enacted in 1968, but was amended by section 43 of the Criminal Justice 1988 so as to remove the restriction of the power to fresh evidence cases. The Court of Appeal is now readier to order retrials than it was.

15. The Criminal Appeal Act 1995 abolished the power of the Secretary of State to refer cases for reconsideration by the Court of Appeal, and created the Commission. This was to be a body of not fewer than 11 members, of whom at least one third were to be legally qualified and at least two thirds to have knowledge or experience of the criminal justice system. The procedure of the Commission, by paragraph 6(1) of Schedule 1 to the Act, was to be such as it might determine. By section 9 of the Act, the Commission was empowered to refer to the Court of Appeal the conviction of any person convicted of an offence on indictment in England and Wales, and such a reference was to be treated by the Court for all purposes as an appeal by the defendant against conviction under the 1968 Act. Section 13 of the Act prescribes the conditions for making references. In the case of a conviction, the section provides:

16. Thus the Commission’s power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else. Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the court before, whether at trial, on application for leave to appeal or on appeal. In the absence of such exceptional circumstances, the Commission cannot therefore invite the court to review issues or evidence upon which there has already been a ruling. Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal.

17. The “real possibility” test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission’s judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant’s prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.

18. The judgment required of the Commission is a very unusual one, because it inevitably involves a prediction of the view which another body (the Court of Appeal) may take. In a case which is likely to turn on the willingness of the Court of Appeal to receive fresh evidence, the Commission must also make a judgment how, on all the facts of a given case, the Court of Appeal is likely to resolve an application to adduce that evidence under section 23, because there could in such a case be no real possibility that the conviction would not be upheld were the reference to be made unless there were also a real possibility that the Court of Appeal would receive the evidence in question. Thus, in a conviction case of this kind, the first task of the Commission is to judge whether there is a real possibility that the Court of Appeal would receive the evidence. The Commission has, in effect, to predict how the Court of Appeal is likely to answer the question which arises under section 23, as formulated above. In a conviction case depending on the reception of fresh evidence, the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? if so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction? The Commission would not in such a case refer unless it gave an affirmative answer to both questions. The parties are agreed, and we accept, that the test of “real possibility” is the appropriate test in asking both questions and not only the question arising under section 13(1)(a).

19. If the Commission does refer, the Court of Appeal treats the case as any other in which leave to appeal against conviction has been granted. It will make its decision under section 2 of the 1968 Act on the strength of the argument, and evidence (if any), deployed before it.

20. We have been referred, as was the Commission, to a number of cases relevant to this application.

21. The ratio of the court’s decision was that the new evidence afforded no ground for allowing the appeal, which not only relieved the court of a mandatory duty to receive the evidence but also destroyed any ground for receiving the evidence in exercise of the court’s discretion. The court’s observation on what it might do if subsequent evidence of diminished responsibility were really overwhelming was obiter, and plainly the court was not purporting to prescribe rules to govern the exercise of the court’s discretion. The judgment did, however, reflect the scepticism with which any court would be inclined to view an attempt to re-open a conviction after a trial conducted in accordance with the professional advice of both doctors and lawyers.

22. The application to introduce fresh evidence and for leave to appeal was accordingly refused. The court did not expressly consider, on the facts before it, whether it was “necessary or expedient in the interests of justice” to admit the agreed evidence before it, nor whether in all the circumstances the conviction of murder could be regarded as safe.

23. In the event, a retrial was ordered. It seems clear that by 1991 the court had come to recognise, even in an extreme case of this kind, the paramount need to ensure that a conviction was safe.

24. The defendant in R v Ahluwalia (1993) 96 Cr App R 133 had been charged with murdering her husband and convicted in December 1989. No evidence had been given by the defendant at her trial and no medical evidence had been called. The issues at trial had been intent and provocation. Her appeal, 2½ years after her conviction, was primarily based on issues relating to provocation. As a third ground, however, the appellant relied on diminished responsibility. Reports obtained well after the date of conviction expressed the opinion that the appellant’s responsibility had been diminished at the time of the killing. In the reserved judgment of the court Lord Taylor CJ said (at page 142):

25. The court, however, regarded the case before it as most unusual. There had been a report at the date of trial diagnosing that the appellant suffered from a major depressive illness, and it was unclear how this report came to be overlooked or why it had not been pursued. The appellant herself, it appeared, had not been consulted about it. Although the Crown had expert evidence challenging the defence of diminished responsibility, the court concluded that it would be expedient in the interests of justice to admit the fresh evidence. Lord Taylor added (at page 143):

26. It is plain that the court did not regard that as a case in which, in Lord Taylor’s words, “the option had been exercised at the trial not to pursue” a defence. The court felt, albeit exceptionally, that in the interests of justice a defence which apparently could have been, but had not been, raised at trial should be explored.

27. The defendant in R v Binning (CACD, unreported, 12 April l995) had been convicted in December l992 of murdering her ten week old daughter. She had offered a plea of guilty to manslaughter on the ground that she lacked the intent necessary for murder, but this plea had not been accepted. She had been examined by two psychiatrists before trial, neither of whom had found anything to suggest that a defence of diminished responsibility could be considered. She had also been examined by a forensic clinical psychologist whose report, as the Court of Appeal in hindsight concluded, should have prompted further enquiry. After conviction, the appellant was examined by Dr Gillian Mezey, who wrote two reports suggesting that the responsibility of the appellant had been diminished at the time of the killing. One of the doctors who had advised before the trial, on reading Dr Mezey’s reports, accepted her opinion. When the appeal reached the Court of Appeal, section 23 of the l968 Act had not been amended, and the Court held that it was not obliged to receive the fresh evidence since there was no reasonable explanation for the failure to adduce it at trial. The Court, however, exercised its discretion under section 23(1) to receive the evidence and concluded that if it had been available at trial, the probability was that the prosecution would have accepted the offer of a plea of guilty to manslaughter on the ground of diminished responsibility which the judge would similarly have approved. The Court accordingly regarded the conviction of murder as unsafe and set it aside.

28. The Court went on to observe (at page 22 of the transcript) that the decision whether to raise the defence of diminished responsibility was one for the defence at the trial and not the Court. Having recited the terms of section 23 as amended, the Court continued (at page 23):

29. Having cited the observations of Lord Taylor CJ in R v Ahluwalia on the importance of advancing any available defence at trial, and making reference to R v Dodd, R v Melville and R v Richardson , the Court turned to the new evidence upon which the appellant sought to rely. Fatal to the application, in the Court’s judgment, were the facts that by the time of trial all the material relevant to the defence of diminished responsibility had been available, that the medical opinions inevitably depended on the factual evidence of the appellant and that she had throughout been unwilling to provide an adequate account of the facts on which such opinions could be based. In its conclusions (at page 48 of the transcript), the Court said:

30. This judgment contains the fullest and clearest judicial consideration of the Court’s role under section 23 and section 2.

31. The defendant in R v Jones [1997] 1 Cr App R 86 was convicted of murdering his wife. The prosecution evidence against him depended heavily, although not exclusively, on the evidence of a pathologist on the causation of the deceased’s injuries. After conviction, the appellant obtained an opinion from a very distinguished forensic pathologist who challenged the pathological evidence called at the trial, and the appeal was founded on an application to adduce the evidence of this pathologist. The Court initially heard the fresh evidence de bene esse, and then considered whether the evidence should be formally received. It did not consider the case for receiving the evidence to be very strong, partly because there was no persuasive explanation of the failure to call evidence to the same effect at the trial, but on balance the Court concluded that it was expedient if not necessary in the interests of justice to receive the evidence. In the event, however, and after hearing the pathologist cross- examined, the Court rejected his opinion and entertained no doubt about the safety of the conviction.

32. The defendant in R v Campbell [1997] 1 Cr App R 199 had been charged with murder. He had offered a plea of guilty to manslaughter on the ground of provocation but the Crown had declined to accept this plea and the trial had proceeded. At trial, the only issue had been provocation and no reliance had been placed on diminished responsibility. The judge directed the jury that no diminished responsibility defence had been put forward and that there was no evidence whatsoever to substantiate such a defence. The defendant appealed, contending in reliance on psychiatric evidence given at the trial that the judge should have directed the jury not only on provocation but also on diminished responsibility. The appeal failed: see (1987) 84 Cr App R 255. The defendant’s advisers eventually persuaded the Home Secretary to refer the case to the Court under section 17(1)(a) of the l968 Act, and on the hearing of the second appeal, the issue (as on the first appeal) was again directed to diminished responsibility. At the time of the trial and of the first appeal, there was clear evidence that the defendant had at the relevant time suffered from an abnormality of mind in the form of epilepsy. The psychiatrist called by the defence had, however, been unable to suggest that this abnormality had been such as substantially to impair his mental responsibility for his acts and omissions in doing the killing, and the nature and extent of this abnormality had accordingly not been explored in any depth. By the time of the second appeal, further reports based on modern techniques of investigation were available. Having recited the terms of section 23, the Court said (at page 204):

33. The Court then summarised the effect of the new evidence, and expressed its conclusion (at page 205):

34. The applicant before us places much reliance on this passage.

35. The defendant in R v Bowler (CACD, 24 July 1997, unreported) was convicted of murder. At her trial, the hypothesis that the death of the elderly victim might have been accidental was excluded by agreement of all parties for readily understandable reasons. After the conviction of the defendant, the view was expressed that the death of the victim could have been accidental, and professional opinions were given in support of that hypothesis. The Court thought it necessary or expedient in the interests of justice to receive fresh evidence and concluded, although with considerable hesitation, that it should not regard the defendant’s conviction as safe when a hypothesis which might have left the jury in doubt of her guilt had never been the subject of consideration by the jury at all.

36. The first decision of the Court of Appeal in R v Borthwick (CACD, 27 October 1997, unreported) was to adjourn the appellant’s application under section 23. The defendant had been accused of murdering a fellow homosexual who had been found strangled in his flat. Before the trial he had been examined by Dr Bond, who had advised that he was possibly suffering from mental abnormality sufficient to impair substantially his responsibility for his acts. But at that stage the appellant had been denying responsibility and the doctor had found it impossible to express a firm opinion. At the trial, the appellant had denied all responsibility and the question was whether he had been involved at all. A month after the appellant’s conviction of murder, Dr Bond examined the appellant again. At this stage the appellant admitted his involvement in the killing and suggested that the death had occurred accidentally during a bondage session. Dr Bond had several detailed interviews with the appellant and was also supplied with information from other sources which led him to believe that the appellant was suffering from psychotic illness. The doctor’s opinion was that there was strong evidence to suggest that the appellant was suffering from abnormality of mind which might have impaired his responsibility for the killing, but on the question of impairment the doctor was unforthcoming, regarding it as a question for the jury. A report was also made by a doctor instructed by the Crown, who supported Dr Bond’s diagnosis but was also unforthcoming on the issue of substantial impairment. Giving the judgment of the court, Waller LJ summarised the appellant’s argument (at page 13 of the transcript):

37. The Crown resisted this submission, contending that there was no expert evidence which demonstrated that the appellant’s candour had been inhibited by his illness; that a decision had been taken not to run a defence of diminished responsibility; that it had been a deliberate decision of the appellant to conceal the true position and thwart further investigations; and that it was very doubtful if the jury would accept that his responsibility had been substantially impaired. The Court made reference to R v Melville , R v Campbell and R v Jones and explained its approach (at page 17 of the transcript):

38. The court however held that both psychiatrists should have an opportunity to reconsider the issue of substantial impairment and also the effect of the appellant’s mental condition on his decisions concerning the conduct of the trial and adjourned for such evidence to be prepared. This decision was the subject of an interesting commentary at [1998] Crim LR 274, 275. When the case came back before the court (18 May 1998, unreported), both psychiatrists were of opinion that the abnormality of mind from which the appellant suffered did substantially impair his mental responsibility at the time of the killing and that such abnormality of mind had also impaired his ability to give rational instructions. The evidence was so powerful that the Crown accepted that it would be appropriate for the court to substitute for the conviction of murder a conviction of manslaughter on the ground of diminished responsibility.

39. The appellant in R v Hobson [1998] 1 Cr App R 31 had stabbed her abusive and alcoholic partner to death during an argument. At the trial she contended that she had acted in self-defence, and there was a subsidiary issue on provocation. She had been convicted in l992. On her appeal heard in 1997, application was made for reception of the evidence of two psychiatrists. They opined that the appellant had been a victim of battered women’s syndrome, a condition not recognised in the standard British classification of mental diseases until 1994, and therefore (it was suggested) a condition not considered by British psychiatrists at the date of the trial as capable of founding a plea of diminished responsibility. The Crown resisted the reception of this evidence, relying on a report prepared for the appellant before the trial which excluded the possibility of a diminished responsibility defence. The Court of Appeal ruled that the evidence should be received, and in the light of that decision the Crown did not seek to support the conviction as safe. A retrial was ordered.

40. The appellant in R v Shah (CACD, 30 April 1998, unreported) was convicted of attempted murder and murder. In each case the offence was said to have been committed by the administration of poison. At the trial she did not give evidence, but put the prosecution to proof. She was examined before trial by several doctors and none of them advised that her responsibility for the killing (if committed) had been impaired. After the trial she made a long statement in which she admitted to the falsity of much that she had said earlier and admitted the administration of poison to the deceased, although (she said) not with the intention of killing him. Over three years after the conviction, the opinion was expressed by several doctors that she suffered from a mental disorder which had impaired her responsibility for the killing. An application was accordingly made to the Court of Appeal to adduce the evidence of the appellant and some psychiatrists and other witnesses in order to support defences of diminished responsibility and provocation, neither of which had been raised at the trial. The court, reviewing the matters listed in section 23(2), considered the appellant’s own evidence to be incapable of belief; the evidence of the psychiatrists was held to be capable of belief, although seriously weakened by the doctors’ inevitable reliance on a misleading account of the facts given to them by the appellant. The court regarded the psychiatrists’ reports as providing grounds for allowing the appeal, although pointing out that the evidence was disputed. The court took the view, in reliance on R v Melville , that condition (c) in subsection (2) was not fulfilled, since neither diminished responsibility nor provocation had been issues at the trial. The court held that there was no reasonable explanation of the failure to adduce the evidence at the trial, and did not accept that the appellant’s mental condition had been the cause of her decisions on the conduct of the trial. The court reviewed the general discretion conferred by section 23(1) but referred to R v Ahluwalia and R v Jones in support of the view that it is incumbent on a defendant to advance the whole defence at trial before the jury. The court referred to the submission of counsel that even if a defendant had advanced a lying defence at trial, the interests of justice might require the Court of Appeal to permit him or her to put forward a different defence if persuasive evidence to support such a defence were available to put before the Court of Appeal, and observed (at page 27 of the transcript):

41. Reference was made to the cases of R v Richardson, R v Ahluwalia and R v Arnold , on which the appellant relied, but the court concluded (at page 28 of the transcript):

42. The Court of Appeal accordingly ruled that it was not necessary or expedient in the interests of justice to receive the further evidence and without that evidence the appeal inevitably failed.

43. Lastly, we turn to R v Weekes (CACD, 18 February 1999, unreported). At his trial for murder the appellant had advanced defences of provocation and self defence which the jury had rejected and he had been convicted. Before the trial psychiatrists instructed both by the defence and the Crown had agreed that at the time of the killing the appellant had suffered from a paranoid psychotic illness which would have substantially impaired the responsibility for his acts. The prosecution had accordingly been willing to accept a plea of guilty to manslaughter on the ground of diminished responsibility, and the appellant had been advised that such a defence was open to him. He, although found to be fit to plead and of average intelligence, adamantly refused to allow reliance to be placed on section 2 of the 1957 Act or psychiatric evidence to be called. But after conviction he changed his mind and application was accordingly made to the Court of Appeal to adduce the evidence which had been in existence before the trial. It was argued that his instructions on the conduct of his defence had themselves been impaired by his mental condition. The Crown resisted the reception of this evidence, although tacitly admitting that if it were to be received the court would in all probability quash the conviction of murder and substitute a conviction of manslaughter on the ground of diminished responsibility. The Court of Appeal ruled that the evidence should be received, relying particularly on the fact that the evidence had been in existence before the trial, that it was agreed and that the appellant’s decision-making capacity had been impaired by his mental illness. The conviction of murder was accordingly quashed and a conviction of manslaughter substituted.

44. From that lengthy recital of authority, it is plain that all applications to adduce fresh evidence under section 23 turn on their own peculiar facts. This is as it should be, since the exercise of a discretionary power must be conditioned by the merits of the case before the court as the court perceives them. Since no two cases reaching the Court of Appeal are the same, it will often be hard, if not impossible, to predict with confidence how the Court will perceive the merits of any given application in a borderline case, a point which obviously bears on the discharge of the Commission’s task under section 13 of the l995 Act. Judicial reactions, being human, are not uniform. Wisely and correctly, the courts have recognised that the statutory discretion conferred by section 23 cannot be constrained by inflexible, mechanistic rules. But the cases do identify certain features which are likely to weigh more or less heavily against 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; evidence of mental abnormality or substantial impairment given years after the offence and contradicted by evidence available at the time of the offence; expert evidence based on factual premises which are unsubstantiated, unreliable or false, or which is for any other reason unpersuasive. But even features such as these need not be conclusive objections in every case. The overriding discretion conferred on the Court enables it to ensure that, in the last resort, defendants are sentenced for the crimes they have committed and not for psychological failings to which they may be subject.

45. When communicating its provisional adverse decision to the applicant on 7 May 1998, the Commission sent a statement of its reasons. In these the background of the Applicant, the facts of the offence, the trial and the appeal, the application to the Home Office, the reasons given by the Home Office for provisionally rejecting the application and the applicant’s response to those reasons were all succinctly summarised in a manner of which no complaint is made. The Commission then listed the ten medical reports of which it, at that stage, had the benefit: two of those (by Dr Weaving and Dr Swan) pre-dated the trial; the two most recent reports, by Dr Bowden and Dr Mezey, were those upon which the applicant principally relied. The Commission summarised the issue before it (on page 11) as follows:

46. The Commission then turned to consider whether the fresh evidence on which the applicant relied would be received by the Court. It concluded that the conditions in section 23 (2)(a)(b) and (c) appeared to be satisfied. The Commission reviewed at greater length whether there was a reasonable explanation for not having adduced the evidence at an earlier stage so as to satisfy section 23(2)(d), and in that connection referred to the cases of R v Bowler, R v Campbell, R v Ahluwalia, R v Arnold and R v Borthwick. The Commission concluded that the failure to adduce evidence to support a defence of diminished responsibility at trial and at the original appeal had not been the result of a tactical decision, but of the absence of evidence. The Commission concluded that on balance the report of Dr Mezey would be likely to be admitted on appeal.

47. The Commission then turned to consider whether the new psychiatric evidence, if admitted, would create a real possibility that the conviction would not be upheld, and pointed out that the evidence would have to be evaluated in the wider context of all the evidence in the case. The Commission then made a series of points:

48. Accordingly, the Commission concluded that there was no real possibility that the conviction would not be upheld if the case were to be referred to the Court of Appeal. The applicant’s written submissions in response to the Commission’s provisional reasons, delivered on 11 August 1998, were settled by Mr Fitzgerald QC, as earlier documents had been. The applicant welcomed the Commission’s acceptance that Dr Mezey’s evidence would be likely to be admissible, but laid stress on the evidence of the other doctors, relied on as showing a long-standing abnormality of mind. The Commission’s statement that it still remained to be ‘established’ that the applicant’s responsibility for the offence had been substantially impaired as a result of her mental condition was criticised as imposing an unduly exacting test. The Commission’s conclusion that there was no real possibility that the conviction would not be upheld by applying the test of whether there was overwhelming or clear evidence of diminished responsibility was also criticised as being inconsistent with the Court of Appeal decision in R v Arnold. The approach in R v Campbell was commended as preferable. In paragraph 4 of the Response, it was again argued that the Commission had erred in holding that the evidence of substantial impairment of responsibility was not sufficiently clear or overwhelming, and it was argued that the Commission should simply have asked itself whether the new evidence ‘could...reasonably cause the Court of Appeal to regard the conviction as unsafe’ (a quotation based on the test in R v Home Secretary ex parte Hickey (No.2) [l995] 1 WLR 734 at 741B). On the merits of the Commission’s adverse decision, the applicant listed a series of matters to which, it was said, the Commission had given insufficient weight. It was argued that the applicant had not misled Dr Mezey or tried to mislead any other psychiatrist. Reasons were given why it was only the opinion of Dr Mezey that specifically addressed the issue of diminished responsibility.

49. In its final statement of reasons, the Commission reproduced the provisional statement of reasons without alteration, but added an additional section beginning at the point where the provisional reasons had stopped. It prefaced the new section by observing (with reference to its provisional reasons):

50. Reference was then made to the response submitted on behalf of the applicant to the preliminary decision and to a further medical report by Dr Mezey.

51. The Commission went on to refer to the applicant’s criticism of the reference to ‘overwhelming or clear evidence’ and made further reference to decided cases, including R v Borthwick and R v Shah. The Commission drew attention to the application in R v Shah of the earlier ruling in R v Melville, and took the view that the Court of Appeal would find that the new evidence did not relate to an issue that had been raised at the trial below. The Commission reconsidered whether there was a reasonable explanation for failure to adduce psychiatric evidence at trial and could not find evidence to support a conclusion that there was such a reasonable explanation. Contrasting R v Campbell and R v Borthwick with R v Shah, and R v Arnold, the Commission reached the opinion (at page 20):

52. Despite that conclusion, the Commission went on to consider the medical evidence to see whether there was a real possibility that the Court of Appeal would receive the evidence as being necessary or expedient in the interests of justice and, if so, whether it provided a real possibility that the Court of Appeal would not uphold the conviction for murder. The Commission expressed its conclusion on these questions as follows (at page 20):

53. The Commission did not elaborate its reasons for concluding that Dr Mezey’s evidence, even if admitted, would not raise a real possibility that the conviction would not be upheld, but nor did it alter in any way the reasons it had already given for reaching that conclusion.

54. Mr Fitzgerald submitted that although the Commission had in its reasons paid lip service to the ‘real possibility’ threshold prescribed by the statute, it had in truth usurped the function of the Court of Appeal by itself purporting to decide whether the evidence should be admitted and whether the verdict should be regarded as unsafe. Attention was drawn to the expression of the Commission’s view that Dr Mezey’s report did not provide the ‘overwhelming or clear evidence’ that the Court of Appeal in R v Borthwick required before substituting a verdict of manslaughter or ordering a retrial. That is not in our judgment a fair criticism. The Commission had, bearing in mind the statutory threshold, to try to predict the response of the Court of Appeal if the case were referred and application to adduce the evidence were made. It could only make that prediction by paying attention to what the Court of Appeal had said and done in similar cases on earlier occasions. It could not rationally predict the response of the Court of Appeal without making its own assessment, with specific reference to the materials in this case, of the considerations to which the Court of Appeal would be obliged to have regard and of how it would be likely to exercise its discretion. If one wants to predict what a reasonable person, on given facts and subject to a measure of guidance, would decide, there is no rational way to approach that task otherwise than by considering what, on the same facts and subject to the same guidance, one would decide oneself. That is not to usurp the decision of that other person but to set about predicting his decision in a rational way. In our view the Commission stated and also applied the right test, fully conscious of the respective roles of the Commission and the Court of Appeal.

55. Secondly, Mr Fitzgerald submitted that the Commission had misdirected itself on the likely approach of the Court of Appeal. It was not, he argued, correct that evidence had to be “overwhelming” before it could be admitted, and the Court of Appeal had not so held in R v Arnold. Nor was it correct, as the Commission suggested, that an appeal would only be allowed if the evidence was “overwhelming”. In R v Campbell the appeal was allowed on the basis that, in the light of the new evidence, the defence “might well have succeeded”. In our view this criticism also is unjustified. It is evident from the authorities which we have summarised that the Court of Appeal has used different language on different occasions, reflecting its judgment of the case before it. The more unpromising the context in which an appellant seeks to adduce fresh evidence, the more compelling the evidence would have to be (other things being equal) before the Court of Appeal would receive it. Here the Commission, exercising its own judgment, concluded that the context was very unpromising for the applicant. Despite much evidence of longstanding abnormality and personality disorder, the first report suggesting that the applicant’s responsibility at the time of the killing had been substantially impaired was written 8 years after the event. There was no contemporary support for that view, and no consensus among the doctors. The report depended at least in part on the account of the applicant herself, who was properly found to be an unreliable source. The Commission had rational grounds for regarding Dr Mezey’s report as unpersuasive. In that view, the Commission may have been right or may have been wrong. We are not sitting as a court of appeal but as a court of review, and it is no part of our duty to decide whether the Commission’s conclusion was right or wrong but only whether it was lawful or unlawful. We are clearly of opinion that it was not irrational. Nor was it vitiated by legal misdirection. That does not mean that we would unreservedly endorse every legal observation the Commission made: for instance, we do not read the Court of Appeal as having applied the test used in R v Dodd and R v Melville in R v Arnold. The Court did, however, cite both R v Dodd and R v Melville in that case without any expression of disapproval, while observing that it had not applied the dicta in those cases. That was because there were, in the judgment of the Court, other and conclusive reasons for declining to receive the evidence. It is not, however, in our judgment appropriate to subject the Commission’s reasons to a rigorous audit to establish that they were not open to legal criticism. The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere. In our judgment the criticisms made of the reasons given by the Commission do not entitle this court to do so.

56. Thirdly, Mr Fitzgerald criticised the final reasons given by the Commission as contradictory and unclear. He pointed out that after a passage concluding that the report of Dr Mezey would on balance be likely to be received on appeal, the Commission went on to give reasons for reaching a contrary conclusion. We agree that it is on the face of the document somewhat surprising that having changed its mind the Commission did not amend the earlier passage rather than simply append the later passage reaching a different conclusion. It is, however, quite clear how this came about. It was not a result of confused thought, but of a changed conclusion, as the document read as a whole makes quite clear. In the result, there was no doubt about the conclusion to which the Commission finally came. We can see nothing misleading or unclear or unfair about the way in which the final reasons were expressed, even if it was somewhat unconventional.

57. Fourthly, Mr Fitzgerald complained that the procedure adopted by the Commission was unfair. He pointed out that in its provisional statement of reasons the Commission had reached the conclusion that the report of Dr Mezey was likely to be received. He had accordingly devoted his response to the issue on which the Commission was then provisionally minded to find against him, whether there was a real possibility that the Court of Appeal would treat Dr Mezey’s report as sufficient ground for allowing the applicant’s appeal against conviction. Had he known that the Commission would change its mind on the first issue, and had he been warned that it would pay attention to R v Shah (a case in which he had himself appeared), he would have wished to make submissions on this subject, as he has done before us. He would for instance have wished to criticise the Commission’s reliance on the ruling made in R v Melville on what is now section 23(2)(c) which was upheld in R v Shah and accepted by the Commission. Mr Fitzgerald did not rely on the denial of an oral hearing as an independent, free-standing ground of appeal but did suggest that this denial compounded the unfairness of the Commission’s procedure: had he been allowed to address the Commission orally, with notice of its changed opinion, he could have sought to persuade the Commission that its revised approach was unsound. As it was, this opportunity, for which he had asked, had been unfairly denied him.

58. The Commission’s decisions under section 13 of the 1995 Act are of great moment to an applicant, and the Commission is under an obvious duty to treat applicants fairly. Miss Lang, in her able and attractive argument, did not suggest the contrary. It would in our view have been preferable if the Commission had warned the applicant that it had modified its earlier opinion on the section 23 issue and given the applicant an opportunity to address this question, even if the Commission considered that a further change of opinion on its part was unlikely. This was, after all, a difficult and borderline case, as evidenced by the prolonged consideration which the Commissioners gave to it and the different views which different Commissioners expressed in the course of discussion. Elementary fairness would ordinarily require that an applicant be alerted to adverse findings which the Commission was minded to make, and to new authorities on which it was minded to rely. The requirements of fairness in any given case are not however an abstract or absolute standard. They depend on the context and all the facts. The question here is whether the Commission’s departure from good practice worked or may have worked any injustice to the applicant. In our view it did not and cannot have done. In its provisional decision the Commission gave detailed reasons for concluding that there was not in its judgment a real possibility that the Court of Appeal would not uphold the applicant’s conviction if the case were referred. That conclusion may or may not have meshed comfortably with the Commission’s provisional conclusion favourable to the applicant under section 23. But whether it did or did not and whether this court agrees with that conclusion or not it was a fatal objection to the application. The applicant had a full and fair opportunity, of which advantage was taken, to challenge that conclusion. The challenge failed. Despite the applicant’s submissions, the Commission adhered to its opinion expressed in its provisional reasons. This does not indicate that the Commission did not consider the applicant’s submissions and the further report of Dr Mezey (the Commission says that it did, and the minutes bear this out) but only that the Commission, having done so, found them unpersuasive. Thus the Commission found against the applicant on a ground fully disclosed in the provisional reasons, which the applicant had every opportunity to challenge, and that conclusion was fatal to the applicant whatever view the Commission took on the section 23 issue. The Commission in its final decision stated, and we have no reason to doubt, that it would have continued to find against the applicant on this issue even if it had concluded that Dr Mezey’s reports would be admitted by the Court of Appeal under section 23. In the event, we do not think any injustice was done to the applicant. It was for the Commission to judge whether in all the circumstances fairness required that the applicant be allowed an oral hearing. It decided that it did not. That was, in our view, a decision to which the Commission could properly come.

59. Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgment entrusted to the Commission. If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function. The Divisional Court will ensure that the Commission acts lawfully. That is its only role. To go further would be to usurp the function which Parliament has, quite deliberately, accorded to the judgment of the Commission. We find no grounds for impugning the Commission’s decision, and accordingly refuse this application.

60. MR FITZGERALD: My Lord, would your Lordships order legal aid taxation?

61. THE LORD CHIEF JUSTICE: Yes, legal aid taxation.

62. MISS LANG: In view of the applicant's circumstances I do not make any application for costs.

63. THE LORD CHIEF JUSTICE: Thank you. We are grateful to counsel for their assistance.