The appellant was sentenced to death by hanging following a murder conviction in 2011. He appeal raises the issue as to whether new medical evidence should now be admitted relating to his mental state at the time of the offence, with a view to supporting a case of diminished responsibility. He also renews his appeal on one of the ground relating to the judge’s direction in respect of evidence of propensity.
By majority the Privy Council refused the application to admit new evidence and dismissed the appeal. It held that the new evidence was “directly contrary to the case advanced at trial, and there is nothing to explain the change of position, or even to establish that it is a change which the defendant himself has made”. Indeed, the failure to advance a case of diminished responsibility at the trial was none other than “deliberate” and a “fair reflection of the appellant’s own position”. The appellant was accepted as being of normal intelligence and there was “no reason to doubt his understanding of the issues at trial or his competence to give instructions”.
Lord Kerr and Lord Lloyd-Jones dissenting stated “that they would have allowed the appeal and remitted the case for trial on the issue of whether, at the time of the killing of Mr Phillip, the appellant was suffering from an abnormality of the mind which substantially impaired his mental responsibility”.
With regards to the alleged deliberate and tactical decision not to run the defence of diminished responsibility, they held that “unless there is a sound basis for concluding that the appellant neglected to advance a defence that he knew was available to him at the time of his trial, it should not be presumed against him that he was aware of the possibility of such a defence and deliberately chose not to proffer it”. Further there was in their opinion, “no reason to conclude that the appellant knew that a diminished responsibility defence was available to him but deliberately decided not to advance it”. Finally, it was noted that Daniel v The State (Trinidad and Tobago)  UKPC 15, the Board held that “even if such a tactical decision had been made, it would not refuse to receive the fresh evidence if it considered that that evidence supported a defence of diminished responsibility which had a prospect of success”.
Joanna Buckley, Jessica Jones and Tim Owen QC were involved in this case.