R v Madaweni [2025] EWCA Crim 1427: Fresh psychiatric evidence on appeal—diminished responsibility requires a causal explanation; mental disorder may still mitigate on sentence

Court: England and Wales Court of Appeal (Criminal Division)

Judges: Lord Justice Edis; Mr Justice Martin Spencer

Date: 23 October 2025

Citation: [2025] EWCA Crim 1427

Introduction

This decision addresses a familiar but difficult appellate problem: how, if at all, should late-arising psychiatric evidence be deployed to challenge a murder conviction where no mental health defence was run at trial, but where mental ill-health may nonetheless bear on culpability and sentence?

Following a jury conviction for murder and the imposition of a 25-year minimum term (life sentence), Mr Madaweni sought:

Leave to appeal against conviction (635 days out of time) and sentence (630 days out of time).
Permission to adduce fresh psychiatric evidence from Professor Inti Qurashi, supported by his mother’s statement and recordings of pre-homicide calls said to show psychotic symptomatology.

The Crown opposed admission of the new material for conviction purposes, pointing out that a trial-instructed psychiatrist (Dr Kennedy) had already concluded that any abnormality of mental functioning did not explain the killing for the purposes of diminished responsibility. The Court of Appeal agreed and refused leave to appeal against conviction. However, it recognised that mental disorder short of a successful diminished responsibility defence may still substantially mitigate culpability, and it set directions for a rolled-up hearing on sentence where fresh psychiatric evidence may be considered solely for mitigation.

Summary of the Judgment

Conviction appeal refused. The Court declined to admit fresh psychiatric evidence for the purpose of advancing diminished responsibility on appeal. While Professor Qurashi’s material was fuller, the Court held it did not adequately demonstrate the statutorily required causal “explanation” for the killing under section 2(1)(c) of the Homicide Act 1957. The appeal was also caught by the principle that—save exceptionally—defences and evidence that could and should have been advanced at trial are not admitted on appeal (R v Erskine).
Sentence appeal to proceed to a rolled-up hearing with potential fresh evidence. The Court accepted that the psychiatric evidence should have been before the sentencing judge and may be relevant to culpability reduction under the statutory framework for minimum terms. It directed a further hearing at which the court will determine whether to receive fresh psychiatric evidence for sentencing only, and if received, whether (and by how much) to reduce the minimum term.
Extensions of time tethered to merits. The Court emphasised that, despite the very significant delay, extensions of time would track the merits: if the appeal is arguable, the necessary extensions will be granted.

Case Background and Key Issues

The homicide followed an earlier altercation between the applicant and a group including the deceased, Billy Pearson, in a Chesterfield churchyard shortly after midnight on 6 August 2022. The prosecution case was that, having retreated home, the applicant armed himself (wearing weightlifting gloves and a balaclava, carrying two screwdrivers) and returned purposefully to the scene seeking revenge, where he stabbed the deceased in the head with such force that the screwdriver penetrated the skull and brain. The defence case at trial was lawful self-defence and/or absence of intent to cause serious harm.

At trial, mental health was not pleaded as a partial defence (diminished responsibility) nor as loss of control. The jury queried mental health mid-trial, prompting the late production of Dr Kennedy’s report. That report recorded the applicant’s claimed pre-offence hallucinations and paranoia but concluded that—even assuming an abnormality of mental functioning that substantially impaired mental responsibility—those symptoms did not provide an explanation for the killing on the applicant’s own account. The report was not deployed. The trial judge directed the jury that capacity and medication were not issues and warned against speculation. The jury convicted of murder.

Post-trial, a new expert (Professor Qurashi) produced extensive reports suggesting a psychotic illness both leading up to and at the time of the offence, supported by the mother’s account and recordings. The central appellate questions were:

Should fresh psychiatric evidence be admitted to advance diminished responsibility on appeal?
If not, can the same evidence be used to mitigate sentence?
Should very late extensions of time be granted?

Detailed Analysis

Precedents and Statutory Framework Cited

Criminal Appeal Act 1968, section 23 (fresh evidence). The Court reiterated that admission of fresh evidence turns on whether receiving it is “necessary or expedient in the interests of justice”, taking into account, among other factors, whether it could with reasonable diligence have been adduced at trial.
Homicide Act 1957, section 2 (diminished responsibility). As amended, this requires the defendant to have an abnormality of mental functioning arising from a recognised medical condition which substantially impaired the defendant’s ability to understand the nature of conduct, form a rational judgment, or exercise self-control, and crucially, that the abnormality provides an explanation for the killing.
R v Erskine [2009] EWCA Crim 1425. “Save exceptionally,” a defendant should not be permitted on appeal to advance a defence or evidence that could and should have been presented at trial, lest the trial process be subverted. The Court applied Erskine directly.
R v Evans [2009] EWCA Crim 2243. A post-trial disagreement between experts is not, without more, a proper basis for admitting fresh evidence on appeal. The Court relied on this to discount the mere fact of a more favourable post-trial psychiatric opinion.
Sentencing Act 2020 (Schedule 21). Mental disorder, even where it falls short of diminished responsibility, may be a statutory mitigating factor affecting the minimum term for murder. Lord Justice Edis explicitly located the issue in Schedule 21’s culpability analysis for mandatory life sentences.

The Court’s Legal Reasoning

A. Fresh evidence and the “interests of justice” test

The defence had in fact instructed a psychiatrist pre-trial (Dr Kennedy). Although his full report materialised late—after a juror note raised mental health—the report concluded that any abnormality did not “explain” the killing on the defendant’s own account. The Court considered this an adequate exploration of the issue for trial purposes, noting:

Defence counsel were entitled to accept Dr Kennedy’s conclusions at face value, especially given its alignment with the applicant’s instructions and the chosen trial strategy (self-defence/lack of intent, not diminished responsibility).
Pursuing a diminished responsibility case would have cut across the defendant’s own account and risked undermining his trial position. The Court treated this as a legitimate strategic decision consistent with professional obligations and the client’s instructions.
The fact that Professor Qurashi later supplied a fuller evidential matrix of psychosis did not overcome the statutory and appellate hurdles because it did not directly confront and satisfy the s.2(1)(c) “explanation” requirement on the facts of this homicide.

Against the Erskine principle, neither the lateness of the Kennedy report nor the post-trial amplification by Professor Qurashi sufficed to justify admission. The Court stressed that it is not enough to show a recognised medical condition and substantial impairment; there must be a reasoned, case-specific bridge between the illness and the killing.

B. The s.2 (diminished responsibility) “explanation” requirement

Two features drove the outcome on conviction:

Alignment with the defendant’s trial account. The applicant maintained at trial that he swung a punch while holding a screwdriver without intending serious harm, in the context of perceived threat and prior violence, and not due to delusions about the deceased. That narrative sat poorly with a psychiatric explanation that the killing was driven by psychotic symptomatology.
Analytical gap in the new expert material. The Court found that Professor Qurashi did not demonstrate—beyond generalities about paranoia and psychosis—that the abnormality of mental functioning actually explained the lethal act. The judgment specifically states it could not identify a basis for concluding the applicant’s ability to understand his conduct or exercise self-control was substantially impaired at the material time, and surmised the expert may be relying on impaired rational judgment alone. But impaired rational judgment, untethered to the facts of the killing and the defendant’s own non-delusional account of his actions, was insufficient to establish the statutory explanation requirement.

In short: a persuasive diagnosis of mental illness is not enough; the expert evidence must convincingly connect that illness to the act of killing in one of the statutory ways, and do so on the factual matrix actually advanced (or established) in the case.

C. Counsel’s trial conduct

The Court emphasised that trial counsel acted properly in not advancing diminished responsibility:

They had an expert opinion (Kennedy) that did not support the explanation limb of s.2.
Running diminished responsibility would have been contrary to the client’s instructions and inconsistent with the chosen self-defence/lack of intent case.

Appellate courts are slow to admit fresh evidence to facilitate a wholly different defence theory when the original choice was informed by expert input and client instructions, absent exceptional circumstances.

D. The distinct role of mental disorder at the sentencing stage

Notwithstanding the refusal on conviction, the Court recognised that mental disorder short of satisfying diminished responsibility may remain highly material to culpability. It therefore:

Indicated the psychiatric evidence “should have been before the court for the purposes of sentence”.
Directed a rolled-up hearing at which the Court will first decide whether to admit the new psychiatric evidence for sentencing, and, if admitted, whether it justifies a reduction in the minimum term under the Schedule 21 framework.
Encouraged a short, focused further report from Professor Qurashi dealing squarely with culpability and mitigation, leaving attendance to be decided after service of the report and the Crown’s response.

Practically, this separates the strict requirements for a conviction appeal (s.23 admissibility; s.2 explanation) from the more flexible sentencing inquiry, where mental disorder may reduce culpability even where diminished responsibility is not established.

E. Extensions of time

The Court treated the extraordinary delay as a merits-led issue: if the appeal had arguable merit, the extensions would be granted. For conviction, the lack of merit meant refusal; for sentence, the arguability of mitigation meant the extension question will be determined at the rolled-up hearing alongside admissibility and the merits.

Impact and Implications

Sharper focus on the “explanation” limb for diminished responsibility. This case restates that the mere presence of psychosis, paranoia, or hallucinations is insufficient. The psychiatric opinion must demonstrably link the abnormality to the killing, and do so coherently with the defendant’s account and the trial record. Experts must explicitly address whether and how the abnormality impaired (a) understanding of the nature of conduct, (b) ability to form rational judgment, or (c) ability to exercise self-control, and show that impairment “explains” the killing.
Appellate restraint on late mental health defences. Following Erskine and Evans, the Court continues to resist the reconfiguration of trial defences via fresh evidence that could reasonably have been adduced, especially where the new theory is inconsistent with the trial strategy and client’s instructions.
Nevertheless, a meaningful channel for justice in sentencing. The judgment signals that where mental disorder was under-explored or under-deployed at trial, it may still be relevant and weighty at sentence. The Court’s willingness to entertain a rolled-up hearing and to receive focused mitigation evidence promotes fairness without undermining the integrity of the trial verdict.
Practice guidance for defence teams. Early instruction of experts is essential. Reports must be chased and, where possible, rooted in full medical records. If a psychiatric defence is contemplated, experts should be asked to address every s.2 element explicitly, including the causal explanation and its fit with the defendant’s account. If diminished responsibility cannot responsibly be run, teams should still ensure that relevant psychiatric material is before the sentencing court for mitigation.

Complex Concepts Simplified

Diminished responsibility (murder to manslaughter). A partial defence that reduces murder to manslaughter if, due to an abnormality of mental functioning from a recognised medical condition, the defendant’s mental responsibility was “substantially impaired,” and that abnormality explains the killing. It focuses on capacity at the time of the offence.
The “explanation” requirement. It is not enough to show mental illness. The illness must help explain why the person killed—e.g., because it impaired rational judgment or self-control in a way that led to the fatal act.
Fresh evidence on appeal (s.23 of the 1968 Act). The Court of Appeal only receives new evidence if it is necessary or expedient in the interests of justice. If the evidence could reasonably have been used at trial, it is rarely admitted later.
Rolled-up hearing. A single hearing where the court decides (1) whether to admit fresh evidence and (2) if admitted, the appeal itself, particularly apt for sentence appeals involving new material.
Schedule 21 (Sentencing Act 2020). The statutory framework for setting minimum terms for mandatory life sentences, listing factors that increase or reduce seriousness. Mental disorder, even when not amounting to diminished responsibility, can reduce culpability and justify a lower minimum term.
Fitness to plead vs. diminished responsibility. Fitness to plead is about whether the defendant can participate in the trial process; diminished responsibility is about the defendant’s mental state at the time of the killing and whether it reduces culpability for murder.

Key Takeaways

Post-trial psychiatric evidence will not be admitted to support diminished responsibility unless it squarely addresses and evidences the statutory “explanation” for the killing, coherently with the trial record and the defendant’s account.
Erskine and Evans remain robust: appeals are not vehicles to run new defences that could and should have been raised at trial, absent exceptional circumstances.
Nevertheless, psychiatric evidence that fell short at trial may still be relevant and powerful at sentence; the Court endorsed a focused, culpability-centered report for a rolled-up sentence hearing.
Defence teams must secure early psychiatric input, ensure experts review records, and press experts to address causation and statutory limbs expressly.

Conclusion

R v Madaweni provides a clear, structured reaffirmation of appellate orthodoxy on fresh psychiatric evidence for diminished responsibility while preserving a principled avenue for fairness at sentence. The Court’s refusal to admit fresh evidence for conviction purposes underscores the rigor of the s.2 framework—especially the explanation limb—and the Erskine constraint against retrofitting new defences on appeal. At the same time, its directions for a rolled-up sentence hearing recognise that mental disorder, even below the threshold for diminished responsibility, can significantly reduce culpability and should be considered as a statutory mitigating factor when setting minimum terms.

In effect, the judgment draws a firm boundary: fresh psychiatric evidence that does not causally explain the killing will not unsettle a murder conviction, but the same or related material may rightly influence the calibration of the minimum term. This calibrated approach should inform defence strategy, expert instruction, and sentencing practice in homicide cases where mental health is in play.