R v Erskine; R v Williams [2009] EWCA Crim 1425
The appellants argued that, although they had not advanced the defence at trial, their convictions for murder should be quashed and substituted with diminished responsibility manslaughter. (1) The question in each case was whether, in examining the mental state at the time of the killing in accordance with s2 Homicide Act 1957, evidence which was not adduced at trial should be received under s23 Criminal Appeal Act 1968. (2) The question was a simple one and citation of numerous, merely illustrative, authorities was unhelpful. (3) In Erskine there was overwhelming contemporaneous evidence for diminished responsibility, and that his decision not to advance the defence was irremediably flawed because of his illness: appeal allowed and restricted hospital order imposed. (4) In Williams, the decision not to advance the defence was tactical, and the subsequent medical evidence unconvincing: appeal dismissed.
External link
Stockwell Strangler Kenneth Erskine has murder convictions overturned, The Times, 15/7/09