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R v Neaven (2006) EWCA Crim 955 Court of Appeal

The appellant at the age of 22 stalked and then fatally stabbed a man who had given evidence against him in a previous trial for wounding and criminal damage for which the appellant had been sentenced to 12 months imprisonment. The appellant had psychiatric problems dating back to his mid-teens. He had been excluded from school because of his violent outbursts and suffered long term personality disorder. He was dependant on alcohol and drugs. He had made several suicide attempts due to his intrusive thoughts of killing his girlfriend. A month before the killing the appellant told his psychiatrist he was having violent fantasies and experienced sexual arousal from violence. At his trial he advanced a plea of self-defence. His counsel discussed the issue of diminished responsibility but the defendant and his counsel believed that if this was also raised it would prejudice the outcome with regards to self-defence and reveal that he was dangerous. He therefore refused the prosecution access to his medical records. The jury rejected his plea of self-defence and convicted him of murder. The appellant later admitted that the self-defence plea was fabricated. After his conviction he was seen by a psychiatrist who diagnosed schizophrenia. The appellant appealed raising the diagnosis as fresh evidence to found a defence of diminished responsibility. The prosecution contended that the decision not to raise the defence at trial was a tactical one and therefore the new evidence should not be admitted.


The new evidence was allowed. The evidence that the appellant was schizophrenic was not available at trial. The new medical evidence was also indicative that the appellant would not have been in a position to make a rational judgment as to instruct counsel to omit the defence of diminished responsibility. His conviction for murder was quashed and substituted with manslaughter.

The court reviewed existing authorities and gave the following guidance:

"(1) That the obligation on a defendant to advance his whole case at trial, and the scepticism directed towards tactical decisions, remain fundamental.
(2) That it therefore takes an exceptional case to allow it to be in the interests of justice to admit and give effect to fresh evidence, not relied on at trial, designed to promote a new defence of diminished responsibility. However, subject to this,
(3) each case turns on its own facts. Therefore,
(4) where the evidence of mental illness and substantial impairment is common ground or otherwise clear and undisputed, it may be in the interests of justice (in the absence of opposition from the appellant himself – see Kooken) to admit it.
(5) This is especially so if the potential vice of tactical decisions is met by undisputed evidence that such decisions were affected by the defendant's illness itself.
(6) The emergence only after conviction of evidence of mental illness and of the potential of a defence of diminished responsibility is of little weight, unless perhaps there is unanimity as to the conditions necessary for such a defence at the time of offence. In this connection it may be observed that only in the special case of Kooken was clear and undisputed fresh evidence on appeal of a good defence of diminished responsibility to the killing not acted upon in this court."

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