Anonymized Summary of Court Opinion

Factual and Procedural Background

This opinion concerns an application by the Appellant for leave to appeal against both conviction and sentence, and for extensions of time to bring those appeals. The Appellant sought extensions of time of 635 days (conviction) and 630 days (sentence). The Appellant also sought permission to adduce fresh evidence in the form of psychiatric reports from Expert Qurashi, a statement from the Appellant's Mother dated 27 December 2023, and recorded telephone-call transcripts made by the Appellant and recorded by his Mother.

The relevant trial took place in February 2023 in the Crown Court before Judge Egbuna and a jury. The Appellant was convicted of murder on 15 February 2023 and sentenced on 20 February 2023 to life imprisonment with a specified minimum term of 25 years under section 322 of the Sentencing Act 2020 (with a reduction for remand time). The factual core accepted by the prosecution was that, following an earlier fight in The City, the Appellant armed himself with screwdrivers and a balaclava, returned to the churchyard where the earlier altercation had occurred, and inflicted a wound to the head of the Deceased which subsequently proved fatal.

Post-conviction, the Appellant's family instructed new legal representatives and obtained psychiatric assessments and reports. The Appellant applies now for leave to appeal the conviction (on the basis that fresh psychiatric evidence would have supported a defence of diminished responsibility) and the sentence (on the basis that psychiatric evidence might reduce the minimum term). The Registrar of Criminal Appeals referred the matter to the full court and the matter was considered by Judge Spencer and other members of the court.

Legal Issues Presented

1. Whether leave to appeal against conviction should be granted and, if granted, whether the proposed fresh psychiatric evidence (Expert Qurashi's reports and related material) should be admitted on the basis that it would have materially affected the verdict (in particular by making available a defence of diminished responsibility under section 2 of the Homicide Act 1957).
2. Whether leave to appeal against sentence should be granted and whether psychiatric evidence not relied upon at sentencing (in particular the opinion of Expert Kennedy) could or should have affected the minimum term imposed.
3. Whether the significant delay in applying for leave to appeal is excused and whether extensions of time should be granted — and if so, whether any such extensions should depend on the merits of the proposed appeals.
4. Whether the proposed fresh evidence should be admitted in the interests of justice (within the meaning of section 23 of the Criminal Appeal Act 1968) despite being material that could or should have been investigated or presented at trial.

Arguments of the Parties

Appellant's Arguments

• The Appellant relies on new psychiatric reports from Expert Qurashi (reports dated 7 October 2024 and 4 December 2024) which, it is submitted, provide compelling evidence that the defence of diminished responsibility was available at trial and would likely have succeeded, converting alleged murder to manslaughter pursuant to section 2 of the Homicide Act 1957.
• The Appellant contends that pre‑trial investigations into his mental health were inadequate, no psychiatric evidence was deployed at trial (or at sentencing), and the Appellant's mental state deteriorated post‑trial necessitating the delay in obtaining expert evidence.
• Extensions of time are justified by post‑trial deterioration in the Appellant's mental state, change of legal representation, investigations carried out by new solicitors, the need to instruct and obtain an expert opinion, and practical difficulties in arranging psychiatric assessment in The Prison.
• On the sentence point, it is submitted that Expert Kennedy’s opinion should have been before the court at sentencing and could have materially affected the minimum term because the Appellant's mental disorder bears on culpability.
• Counsel for the Appellant additionally pointed to an incident in custody — an assault on a prison officer — where the prosecution accepted a causal connection to the Appellant's mental health, arguing that this demonstrates the relevance of mental health to culpability assessments.

Respondent's Arguments

• The Respondent submitted that the conviction is safe and that admission of the proposed fresh evidence would not be in the interests of justice under section 23 of the Criminal Appeal Act 1968, because the matters relied upon had been or should have been investigated prior to trial.
• The Crown pointed to Expert Kennedy's report (dated 7 February 2023), which concluded the Appellant was fit to plead and, even allowing for symptoms, that any abnormality of mental functioning did not provide an explanation for the killing (as required by section 2(1)(c) of the Homicide Act 1957).
• The Crown relied on the principle in R v Erskin that it is generally not in the interests of justice to admit fresh evidence on appeal when the defence could and should have investigated the issue at trial, and on R v Evans that disagreement between experts post‑trial is usually not alone a basis for admission of fresh evidence.
• The Crown further stressed that the Appellant's trial evidence presented a coherent account that did not plead inability to form rational judgment or loss of self‑control; pursuing diminished responsibility on appeal would amount to advancing a defence not put before the jury and would subvert the trial process.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Erskin [2009] EWCA Crim 1425	The principle that, save in exceptional cases, fresh evidence should not be admitted on appeal where the defendant could and should have investigated and put that evidence before the jury at trial; to prevent subversion of the trial process.	The court relied on this principle to conclude the case was not so compelling as to admit fresh evidence intended to found a new or different defence that could and should have been pursued at trial.
R v Evans [2009] EWCA Crim 2243	The observation that a mere disagreement between an expert originally instructed and an expert instructed post‑trial is not usually a proper basis for admitting fresh evidence on appeal.	The court observed that the difference between Expert Kennedy's and Expert Qurashi's diagnoses was not of a kind that, by itself, justified admitting fresh evidence to undermine the safety of the conviction.

Court's Reasoning and Analysis

The court proceeded in two parts: first considering the application for leave to appeal against conviction; then considering the application for leave to appeal against sentence.

Conviction — step‑by‑step analysis

1. The court noted the procedural history of psychiatric evidence: Expert Kennedy had been instructed pre‑trial, assessed the Appellant by video link and provided a report dated 7 February 2023 stating the Appellant was fit to plead and that, even if psychotic symptoms were present, they did not provide an explanation for the killing.
2. Counsel for the Appellant at trial accepted Expert Kennedy's written opinion when it was disclosed shortly before the relevant evidence was called; counsel therefore did not pursue a diminished responsibility defence at trial and placed reliance on self‑defence/absence of intent instead.
3. The Appellant's later expert, Expert Qurashi, produced fuller reports (October and December 2024) asserting that contemporaneous material (including recorded phone calls made by the Appellant and accounts from the Appellant's Mother) and prior clinical contacts supported a diagnosis of a severe psychotic illness substantially impairing the Appellant's rational judgment and self‑control.
4. The court examined the substance of Expert Qurashi's reports and compared them to the earlier Expert Kennedy report. The court found that, as to diagnosis, there was little material difference between the experts — both recognised an abnormality of mental functioning — but that Expert Qurashi had not established a clear basis in his report to conclude that the abnormality provided an explanation for the Appellant's conduct at the time of the killing (a requirement under section 2(1)(c) of the Homicide Act 1957 for diminished responsibility).
5. The court emphasised the context of the trial: the Appellant had given a coherent narrative consistent with an intention to act in revenge and had never advanced at trial that delusional beliefs or hallucinations concerning the Deceased explained his conduct. The defence deployed at trial was self‑defence and/or lack of intent, not diminished responsibility based on psychosis.
6. Applying the Erskin principle, and R v Evans on expert disagreement, the court concluded the case was not exceptional such that fresh evidence should be admitted to advance a defence that could and should have been investigated and presented at trial. Admission would subvert the trial process in the court's view.
7. The court also noted that the lateness of Expert Kennedy's report before trial was regrettable, but counsel's acceptance of that report and the Appellant's own instructions meant it was reasonable not to pursue diminished responsibility at trial; to do so post hoc would conflict with the trial defence relied upon by the Appellant and could undermine the chosen trial strategy.

Sentence — step‑by‑step analysis

1. The court took a different view in relation to sentence. It concluded that Expert Kennedy's opinion should have been before the sentencing court and that it is arguable that the Appellant's mental disorder was a matter relevant to culpability and therefore to the minimum term.
2. Because Expert Kennedy's opinion was not deployed at sentencing, the court considered it arguable that, had it been placed before the sentencing judge, it could have significantly affected the minimum term.
3. Given that distinction, the court directed that the full court should consider the admission of Expert Qurashi's evidence for the sole purpose of the appeal against sentence and should consider whether leave to appeal against sentence should be granted in light of the evidence the full court decides to admit.
4. The court invited Expert Qurashi to prepare a further short report addressing sentence‑relevant matters (i.e., culpability and the extent to which mental disorder would bear on the minimum term), and gave directions for a "rolled up" hearing in which the leave decision and the substantive consideration of sentence would be combined if the court decided to receive the evidence.
5. The court left the question of extension of time to the full court to decide in the context of whether leave to appeal against sentence should be granted.

Throughout its analysis, the court limited itself to the materials before it and expressly declined to infer or speculate beyond what the experts had expressly stated in their reports and the parties had argued.

Holding and Implications

Core Rulings:

1. Application for leave to appeal against conviction — REFUSED.

The court held that the application for leave to appeal against conviction must be refused because the proposed fresh evidence did not meet the threshold for admission on appeal: the new expert opinion did not establish a sufficient explanatory link between the Appellant's alleged abnormality of mental functioning and the fatal conduct, and the matter was not of such an exceptional character as to displace the principle that the trial should not be subverted by allowing a defence on appeal that could and should have been advanced at trial.

2. Application for leave to appeal against sentence — TO BE FURTHER CONSIDERED.

The court concluded that Expert Kennedy's opinion should have been available to the sentencing judge and that it is arguable that the Appellant's mental disorder was relevant to culpability and could have had a significant effect on the minimum term. Accordingly, the court directed that the full court consider whether Expert Qurashi's evidence (and any further short report addressing sentencing matters) should be admitted for the sole purpose of the appeal against sentence, and whether leave to appeal against sentence should be granted in light of the evidence the full court admits. The court permitted directions to obtain a further report from Expert Qurashi focused on sentence and arranged a rolled‑up leave hearing to determine these matters.

Consequences and Practical Effect

• Immediate effect: The conviction for murder remains in place because leave to appeal against conviction was refused.
• Further proceedings: The full court will consider, in a subsequent hearing, whether to admit fresh psychiatric material for the limited purpose of an appeal against sentence and whether to grant leave to appeal against sentence. The Appellant is permitted to obtain and serve a further, focused report from Expert Qurashi addressing sentence‑relevant issues; the prosecution will be afforded an opportunity to respond.
• Extensions of time: The full court will determine any application for extensions of time for the sentence appeal in the context of its consideration of leave to appeal against sentence.
• Precedential impact: The court applied established principles (including R v Erskin and R v Evans) regarding the admissibility of fresh evidence on appeal; it did not create a novel principle of law. The decision reinforces the established restraint on admitting fresh evidence on conviction appeals where the matter could and should have been investigated at trial, while recognising that sentencing can raise different considerations where material was not before the sentencing judge.

If any section of this summary appears incomplete, that is because the provided opinion did not contain additional or different information relevant to that section. No information has been invented or inferred beyond what appears in the opinion.