Stewart v R ([2025] NICA 36): The “Residual-Jurisdiction” Ceiling – Finality, Fresh Evidence and Late Sentence Appeals

Introduction

Hazel Stewart’s notoriety stems from her conviction in 2011 for the carbon-monoxide murders of her husband Trevor Buchanan and of Lesley Howell, wife of her lover Colin Howell. Mr Justice Hart sentenced her to life imprisonment with an 18-year minimum term, ten years shorter than Howell’s tariff because he was the “prime mover”. Two earlier conviction and sentence appeals (2013 and 2015) failed, and the Criminal Cases Review Commission (CCRC) declined to refer the case.

In 2024-25 a third team of lawyers sought to re-open the sentence appeal, relying on three reports by Consultant Child and Adolescent Forensic Psychiatrist Dr Duncan Harding, contending that previously unconsidered depression, post-traumatic stress disorder (PTSD) and Howell’s coercive control dramatically reduced Stewart’s culpability. The prosecution resisted, decrying “expert shopping” and emphasising the need for finality. The Court of Appeal (Keegan LCJ, Treacy LJ, O’Hara J) refused: (1) to extend time, (2) to admit the new evidence and (3) to disturb the original tariff.

Summary of the Judgment

Jurisdiction: A 2013 Court of Appeal order had already dismissed the sentence appeal. A residual inherent jurisdiction to re-open such appeals survives (R v Walsh), but it is exercisable only in “the most exceptional circumstances”.
Extension of Time: The application was 14 years late. Applying R v Brownlee [2015] NICA 39, the applicant provided no “substantial grounds” that explained the delay.
Fresh Evidence (s.25 Criminal Appeal (NI) Act 1980): Dr Harding’s reports were theoretically admissible and “capable of belief”, but they did not provide a viable ground of appeal and there was no adequate reason for earlier omission.
Merits: The trial judge had already discounted Stewart’s tariff by ten years to reflect Howell’s dominance. Earlier psychiatrists found no mental illness. The new material – a “late-breaking” coercive-control narrative – was unpersuasive and undercut by contemporaneous evidence.
Result: Leave to extend time and to appeal refused; sentence remains 18 years.

Analysis

1. Precedents Cited and Their Influence

R v Brownlee [2015] NICA 39 – sets six guiding principles on extension of time. The court drew heavily on paras [8](ii) and (v), stressing that “considerable delay” demands an entire explanation and that fresh evidence must emerge swiftly and cogently.
R v Walsh [2007] NICA 4 – authority for an inherent power to re-list concluded appeals, surviving the 1995 CCRC regime. Keegan LCJ accepts the power but re-emphasises Kerr LCJ’s warning that it applies only where an injustice “is likely to occur” and the CCRC route is inadequate.
R v Patrick Anthony Guinness [2017] NICA 47 and R v Smith [2013] EWCA Crim 2388 – invoked to highlight the “basic principle” of finality and the Court’s hostility to serial relitigation and post-verdict tactical switches (“expert shopping”).
R v Challen [2019] EWCA Crim 916 – cited principally to illustrate the judicial disapproval of deploying fresh psychiatric evidence on appeal that could have been adduced at trial. The Court distinguished Challen’s diminished-responsibility context from Stewart’s sentencing context.
Historic cases (Cross, Daniel, Pinfold) and administrative law authorities on CCRC referrals buttressed the conceptual framework.

2. The Court’s Legal Reasoning

2.1 Jurisdictional Bar

Because a sentence appeal was dismissed in 2013, Stewart’s latest manoeuvre was a request to “re-open”. The Court accepted that it could do so in theory (Walsh) but emphasised three filters: (1) the bar of finality; (2) the existence and past engagement of the CCRC; and (3) the need for “exceptional circumstances”. None was satisfied—CCRC had already declined, and the fresh evidence was neither compelling nor unavailable earlier.

2.2 Extension of Time

Fourteen years is “considerable delay” under Brownlee. The applicant had to explain every year. The Court found the explanation – focusing on a 2016 television drama, an abandoned judicial review about non-prosecution of Howell for sexual offences, and Dr Harding’s own delay (he was under GMC scrutiny) – unconvincing.

2.3 Fresh Evidence Test (s.25)

Capable of belief? – Yes, Dr Harding is a recognised expert.
Admissible? – Yes, psychiatric opinion is admissible on mental state at sentencing.
Reason for earlier absence? – Weak. Stewart had multiple earlier experts (Mezey, Kennedy, Browne, Gudjonsson, Fahy) and deliberately chose not to adduce them.
Affords ground of appeal? – No. The trial judge had already mitigated for Howell’s dominance; Dr Harding’s retrospective diagnosis contradicted contemporaneous clinicians.

2.4 Substantive Merits

At sentencing Mr Justice Hart made explicit findings: (1) Howell was “mastermind”; (2) Stewart was secondary but “her responsibility was very substantial”; and (3) tariff disparity (28–>21 vs. 18) already reflected that dynamic. The Court regarded the new evidence as an attempt to recast the case from “false confession” to “diminished responsibility/coercive control” after repeated strategic failures – precisely the “alternative defence on appeal” condemned in Smith.

3. Impact of the Decision

Re-Affirms Finality: The judgment fortifies the message that once a sentence appeal has been determined, a further challenge faces an exceptionally high threshold.
Guidance on Coercive-Control Arguments: While coercive control can be pivotal (e.g. in diminished-responsibility or defence cases), its late invocation must be justified by contemporaneous or truly novel material; retrospective reconstruction will rarely suffice merely to reduce tariff.
CCRC Is the Default Safety Net: Stewart demonstrates that bypassing the CCRC because it is “slow” will not impress the Court; the statutory scheme’s primacy remains.
Expert-Shopping Warning: The Court echoes English authority that multiple, sequential experts marshalled to find a favourable opinion undermine credibility and may themselves be corrosive to a case.
Procedural Hygiene for Practitioners: The criticism of Stewart’s solicitors for ignorance of past orders is a stark reminder that successor representatives must audit the procedural history meticulously.

Complex Concepts Simplified

Residual Inherent Jurisdiction: The Court of Appeal’s non-statutory power to re-open a concluded appeal to avert a blatant injustice. It survives but is almost never exercised because Parliament created the CCRC.
CCRC (Criminal Cases Review Commission): An independent statutory body that re-examines alleged miscarriages of justice and can refer a case back to the Court of Appeal if there is a real possibility the conviction or sentence is unsafe or excessive.
Section 25 (Criminal Appeal (NI) Act 1980): The governing test for admitting fresh evidence: credibility, relevance, admissibility, and a reasonable explanation for earlier non-production.
Coercive Control: A pattern of behaviour (psychological, financial, emotional) that strips autonomy from a partner. It became a stand-alone criminal offence in England & Wales only in 2015 (Serious Crime Act 2015 s.76). For sentencing (or diminished responsibility) its relevance is in assessing culpability.
Expert Shopping: Seeking multiple experts until one provides a favourable opinion, after other opinions prove unhelpful. Courts frown upon it because it manipulates evidence and undermines fairness.

Conclusion

Stewart v R stands as a modern, Northern-Irish reaffirmation of the finality principle in criminal litigation. It crystallises a “residual-jurisdiction ceiling”: the Court of Appeal can re-open a dismissed appeal, but only where (1) the CCRC route is ineffective or unavailable and (2) genuinely new, decisive evidence demands intervention. Neither requirement was met here. Practitioners should take three key lessons: (i) map the procedural history before taking fresh action; (ii) deploy all available expert evidence at the earliest stage; and (iii) appreciate that “coercive control” arguments, powerful though they may be in some contexts, must be contemporaneous and cogent to move sentencing benchmarks. The decision thus preserves Hazel Stewart’s 18-year minimum term and, more broadly, ensures that the criminal justice system is not condemned to perpetual relitigation.