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   Home      R v Erskine and Williams
R v Erskine and Williams [2009] EWCA Crim 1425 Court of Appeal

Erskine was convicted in Jan 1988 on seven counts of murder. He had killed and sexually assaulted 7 elderly people. Williams was convicted of taking part in killing his girlfriend's father after she had told him that her father had sexually abused her. Both the appellants sought to admit fresh medical evidence to raise the defence of diminished responsibility.


Fresh evidence was allowed in Erskine since the evidence was compelling that his mental responsibility was substantially impaired at the time of the killing and he lacked the capacity to instruct counsel to raise the defence and was wrongly advised not to. His convictions for murder were quashed and substituted with manslaughter convictions and he was subject to an indefinite hospital order.

The court did not allow fresh evidence in Williams. The issue of taking diminished responsibility to trial was considered but rejected by Williams and his legal advisors for tactical reasons. Also the fresh evidence was less convincing.

Lord Judge CJ gave guidance for admitting fresh evidence to advance the defence of diminished responsibility at appeal:

If reference to earlier decisions or historical analysis happens to be required, the present judgment, where the vast majority of all the relevant decisions have been collected, will normally suffice. We emphasise that the provisions of s.23 do not require any further judicial exegesis; the court will positively discourage references to previous decisions which exemplify but do not alter the principles identified by Lord Bingham in Pearson.

The court will normally expect the parties to provide a detailed analysis of the facts to assist it in the application of the statutory test, including an analysis of the following:

i) The psychiatric and/or psychological evidence or other information in relation to the appellant's mental state which was available at the time of trial.

ii) The evidence which has become available since the trial, and an explanation why it was not available at trial.

iii) The circumstances in which the appellant sought to raise on the appeal (a) the evidence available at the time of the trial and (b) evidence that has become available since the trial

iv) The reason why such evidence or information as was available at the time of the trial was not adduced or relied on at trial. This will ordinarily include details of the advice given, the reasons for the appellant's decision at trial and, subject to paragraph …, any relevant evidence of the mental condition in the period leading up to and at the time of the trial and its impact on his decision making capacity.

v) The impact of the fresh evidence on the issues argued at trial and whether and the extent to which it involves a re-arguing of issues considered at trial.

vi) The extent to which the opinions of the experts are agreed and where they are not.

These heads of analysis will not all necessarily apply in every case; in some cases additional areas of analysis may be required. However, any such analysis should suffice to assist and inform the court in its task of applying the provisions of s.23 (1) of the 1968 Act.

Back to lecture outline on the defence of diminished responsibility