Source: All England Reporter
Publisher Citation: [2006] All ER (D) 91 (Feb)
Neutral Citation: [2005] EWCA Crim 3080
Court: Court of Appeal, Criminal Division
Judge:

Longmore LJ, David Steel J and the Recorder of Winchester

Representation Edward Fitzgerald QC and Paul Taylor (assigned by the Registrar of Criminal Appeals) for the defendant.
  Sir Allan Green QC (instructed by the Crown Prosecution Service) for the Crown.
Judgment Dates: 3 November 2005

Catchwords

Criminal law - Trial - Retrial - Defendant applying for permission to appeal against murder conviction on basis of fresh evidence of diminished responsibility - Whether order for retrial on successful appeal likely - Prosecution contesting application for permission to appeal on basis of contradictory fresh evidence - Whether defendant advised of likelihood of retrial - Defendant abandoning application to appeal against conviction - Whether counsel obliged to advise defendant of possibility of retrial.

The Case

In cases where it was sought to contest a conviction of murder on the grounds of diminished responsibility, some or many years after the date of the original trial, and on the basis of medical or psychiatric evidence, the situation which had arisen in the instant case (the defendant abandoning her application for permission to appeal against her conviction as she did not wish to be retried) could be avoided were counsel, in formulating their notice of grounds and their advice in support of that application, to make clear that that the defendant had been advised that, in the event of the prosecution contesting the new evidence of diminished responsibility, a retrial was likely to take place.

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