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R v Erskine
Factual and Procedural Background
The appellants were previously convicted of murder in separate trials many years ago. They now seek to have their murder convictions quashed and replaced with manslaughter convictions on the grounds of diminished responsibility. One appellant had strong evidence available at trial that could have supported the defence but did not advance it, while the other had no such evidence and pleaded guilty to murder. The court was tasked with deciding whether it was necessary or expedient in the interests of justice to admit fresh evidence not presented at trial under section 23 of the Criminal Appeal Act 1968, as amended. The appeals were heard consecutively, and expert psychiatric evidence was taken in advance of the appeal hearings to allow focused consideration.
One appellant, convicted in 1988 of multiple murders of elderly victims involving violent and sexual assaults, sought an extension of time to appeal against conviction and sentence nearly 20 years later, relying on fresh psychiatric evidence of severe schizophrenia and psychopathic disorder affecting his mental responsibility at the time of the offences. The other appellant pleaded guilty to murder in 1999 after a violent attack resulting in death, with prior head injuries and complex circumstances but was denied any available defence of diminished responsibility at trial.
The statutory jurisdiction to admit fresh evidence on appeal was examined in detail, including the criteria for such admission and the importance of whether the defence was raised at trial, the availability and reliability of evidence, and explanations for not adducing evidence earlier. A comprehensive review of relevant case law was conducted to clarify the principles governing these appeals.
Legal Issues Presented
- Whether it is necessary or expedient in the interests of justice under section 23 of the Criminal Appeal Act 1968 to admit fresh evidence not adduced at trial in relation to diminished responsibility.
- Whether the fresh evidence demonstrates that the appellants' mental responsibility at the time of the killings was substantially impaired, justifying substitution of manslaughter convictions for murder.
- Whether the appellants' failure to advance the defence of diminished responsibility at trial can be reasonably explained, including considerations of fitness to plead and the effect of mental illness on decision-making.
- The appropriate sentencing disposition following a successful plea of manslaughter on grounds of diminished responsibility, particularly regarding hospital orders versus life imprisonment.
- The necessity of reforming the practice of extensive citation of authorities in appeals to avoid proliferation of non-essential precedents and improve the administration of justice.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Kooken (1982) 74 Cr App R 30 | Diminished responsibility is an optional defence; court will not admit evidence over objection of defendant not wishing to advance it. | Rejected admission of fresh evidence when defendant objected; emphasised defendant's autonomy. |
| R v Campbell (No 1) (1987) 84 Cr App R 255 | Diminished responsibility is optional defence; no obligation to advance it if defendant does not wish. | Reiterated principle that defence must be advanced by defendant; no application of general principle that all defences should be left to jury. |
| R v Straw [1995] 1 All ER 187 | Fresh evidence of diminished responsibility refused where defendant was capable and advised at trial. | Confirmed defendant’s capacity to decide plea; no fresh evidence admitted post-conviction. |
| R v Ahluwalia [1993] 96 Cr App R 133 | Evidence supporting diminished responsibility must be advanced at trial unless defendant was not consulted or decision not to advance was not real. | Admitted fresh evidence due to defendant not being consulted; emphasised retrospective evidence scepticism. |
| R v Arnold (1996) 31 B.M.L.R. 24 | Fresh evidence supporting diminished responsibility requires proper factual basis; parties must present full case at trial. | Doubted previous requirement for "really overwhelming" evidence; stressed administration of justice requires trial focus. |
| R v Campbell [1997] 1 Cr App R 199 | Fresh evidence admitted where no expert evidence was available at trial; interests of justice paramount. | Conviction quashed; emphasised case and fact specific discretion under section 23. |
| R v Borthwick [1998] Crim LR 274 | Mental illness affecting defendant’s ability to decide defence justifies admission of fresh evidence. | Allowed fresh evidence due to mental illness impairing decision-making; mental illness negated tactical decision. |
| R v Gilfillan (unreported, 1998) | Failure to advance defence explained by defendant’s mental condition concealing true state. | Admitted fresh evidence; Crown did not oppose. |
| R v Weekes [1999] 2 Cr App R 520 | Defendant’s mental illness affected decision not to plead diminished responsibility; fresh evidence admitted. | Allowed evidence; emphasised case-specific nature and impact of mental illness on rational decision-making. |
| R v Criminal Cases Review Commission ex parte Pearson [2000] 1 Cr App R 141 | Section 23 discretion is wide; no inflexible rules; factors weighing against admission include deliberate tactical decisions and late evidence. | Reviewed extensive case law; established guiding principles for admission of fresh evidence. |
| R v Martin [2002] 1 Cr App R 27 | Fresh credible evidence not available at trial may justify quashing conviction. | Conviction quashed; no new principle decided. |
| R v Gilbert [2003] EWCA 2385 | Exceptional cases required to admit fresh evidence not advanced at trial; court still considers interests of justice. | Admitted evidence but conviction upheld on appeal. |
| R v Hendy [2006] 2 Cr App R 33 | Retrospective medical evidence may be admitted if interests of justice require it. | Admitted evidence; factual decision based on interests of justice. |
| R v Neaven [2006] EWCA Crim 955 | Strong guidance on admission of fresh evidence; each case fact specific; mental illness affecting tactical decision may justify admission. | Allowed appeal; emphasised factual nuances and mental illness impact on decision-making. |
| Latus [2006] EWCA Crim 3187 | Failure to advance defence due to tactical decision not illness; no reasonable explanation; evidence refused. | Application refused; no point of principle involved. |
| Diamond [2008] EWCA Crim 923 | Defendant must advance full case at trial; tactical decisions not connected with illness negate admission of fresh evidence. | Appeal dismissed; failure to adduce evidence explained by tactical choice. |
| R v Pritchard 7 Car and P 304 (1835) | Common law test for fitness to plead; defendant must understand proceedings and be able to make proper defence. | Applied as foundational principle for fitness to plead assessment. |
| R v Podola [1960] 1 QB 325 | Clarified meaning of "comprehend" and "make a proper defence" in fitness to plead context. | Confirmed fitness to plead requires understanding, not perfection of reasoning. |
| R v Robertson (1968) 52 Cr App R 690 | Defendant may be fit to plead despite acting against advice or being "highly abnormal". | Reinforced defendant autonomy in plea decisions. |
| R v Berry (1970) 66 Cr App R 156 | Being highly abnormal does not necessarily render defendant unfit to plead. | Supported autonomy and capacity to participate in trial. |
| R v Criminal Cases Review Commission Ex Parte Pearson [1999] EWHC Admin 452 | Section 23 discretion cannot be constrained by rigid rules; factors against admission include deliberate tactical decisions and late evidence. | Reaffirmed broad discretionary power of the court to admit fresh evidence. |
| R v Woods [2009] EWCA Crim 651 | Considerations in sentencing following diminished responsibility conviction. | Referenced in discussion of sentencing implications for manslaughter on grounds of diminished responsibility. |
| Lambert v Lewis [1982] AC 225 | Criticism of excessive citation of authorities and its detrimental effect on justice. | Supported court’s stance on limiting unnecessary citation of precedents. |
| Pioneer Shipping v B.T.P. Trioxide [1982] AC 724 | Excessive citation of authority is unhelpful and should be discouraged. | Used to illustrate problems with proliferation of cited cases. |
| Roberts Petroleum Limited v Bernard Kenny Limited (In liquidation) [1983] 2 AC 192 | Limits on use of unreported judgments to reduce excess citation. | Referenced in discussion of citation practices. |
| Michaels and another v Taylor Woodrow Development Limited and others [2001] Ch 493 | Highlighting risks of overwhelming courts with excessive case law due to technological advances. | Used to emphasize the problem of citation proliferation. |
Court's Reasoning and Analysis
The court began by identifying the narrow statutory question of whether it was necessary or expedient in the interests of justice to admit fresh evidence under section 23 of the Criminal Appeal Act 1968. It acknowledged the substantial bundle of authorities and extensive jurisprudence developed around diminished responsibility but emphasized that the discretion is wide and fact-specific, guided by the statutory criteria rather than rigid rules.
In the case of the first appellant, the court found overwhelming contemporaneous evidence of severe mental illness substantially impairing responsibility at the time of the offences, alongside evidence that his decision not to advance diminished responsibility was flawed due to his mental condition affecting his capacity and insight. The court concluded that justice required admission of the fresh evidence and substitution of manslaughter convictions.
Regarding sentencing, the court rejected the suggestion that a hospital order with restrictions should automatically replace life imprisonment following a successful diminished responsibility plea. It recognized that some defendants may remain dangerous despite the defence and that sentencing must consider public safety, the nature of the offences, and the extent of diminished responsibility.
In the second appellant’s case, the court found that the plea of guilty to murder was a deliberate and properly informed decision, with no convincing fresh evidence of diminished responsibility. The failure to advance the defence was not explained by mental illness but was tactical, and the conviction was upheld.
The court also addressed the problematic trend of excessive citation of authorities in appeals, noting that many cited cases merely illustrate established principles without adding new legal substance. It stressed the importance of restricting citation to authorities that establish or materially develop legal principles, to avoid unnecessary complexity, delay, and cost. The court proposed rigorous enforcement of this approach to improve the administration of justice.
Finally, the court reaffirmed the established principles regarding fitness to plead, emphasizing the difference between mental responsibility at the time of the offence and fitness at trial, and underscoring the defendant's autonomy in deciding pleas and defences, subject to legal advice and judicial oversight.
Holding and Implications
Erskine Appeal: The court allowed the appeal, quashed the murder convictions, and substituted convictions for manslaughter on the grounds of diminished responsibility. A hospital order with an indefinite restriction under section 41 of the Mental Health Act will be made in place of life imprisonment, reflecting the appellant's ongoing mental illness and risk to public safety.
Williams Appeal: The court dismissed the appeal, upholding the murder conviction based on the appellant’s informed guilty plea and the absence of credible fresh evidence of diminished responsibility.
The decision clarifies the application of section 23 discretion in cases involving diminished responsibility, emphasizing fact-specific analysis and the necessity of a reasonable explanation for failure to advance the defence at trial. It also signals a firm stance against excessive citation of case law, seeking to streamline appellate procedure and focus on substantive legal principles. No new precedent beyond these clarifications was established.
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