Evans, R v

The appellant killed his wife Donna on 27 August 1997. He pleaded guilty to murder in the Crown Court at Mold on 11 February 1998 following a ruling by Sachs J, the trial judge, on the issue of provocation and the advice of his then counsel. His application for leave to appeal was refused by the single judge on 18 May 1998. In May 2003, the appellant applied to the Criminal Cases Review Commission.

On 16 August 2007, in a very thorough and comprehensive reference to which we would wish to pay tribute, the Commission referred his conviction to this Court. A significant delay occurred before the hearing could take place, due to the obtaining of further psychiatric evidence and the necessary exchanges between the psychiatrists.

Three issues arose on the reference and on the appeal:

Was the plea entered on erroneous advice and, if so, were the proceedings a nullity or the conviction unsafe?

Is there fresh evidence of provocation?

Is there fresh evidence of diminished responsibility? This issue was not referred by the Commission, as they did not wish to delay the reference by investigating it. We allowed this ground to be argued.

It is first necessary to summarise the factual background and the evidence before turning to the three issues.

The appellant was born on 18 July 1944. He grew up in North Wales and became a lorry driver. He first married in 1965 and had three children by that marriage which lasted 17 years and they were divorced. He met the deceased in 1982 and lived with her for about 2 years before they married on 26 April 1986; he was then 41 and she was 25. She had been married twice before and had two children, Rebecca and Michael. She worked as a care assistant and he continued to work as a heavy goods vehicle driver. They lived first in Rhyl and then in Kinmel Bay.

It was evident by the early 1990s that the marriage had become unhappy, though the appellant did not accept that. There was evidence that he was possessive. He told a mutual friend, Myra Parker, in the early 1990s that if the deceased ever left him, he would kill her. No-one else would have her.

By July 1997 the marriage had broken down. He drank heavily and it was evident they had significant debts and she felt he was impeding her progress in becoming a nurse.

The appellant had a history of depression:

From 1993, he had been regularly prescribed Temazepam, Prozac, dothiapin and seroxat for depression.

In February 1996, he attempted suicide after an argument with the deceased, by taking Temazepam and alcohol.

He was away from work for over 20 days in the period between August 1996 and August 1997.

It is necessary to summarise in a little more detail the evidence relating to the events in the period before the appellant killed the deceased.

On Saturday 12 July 1997, they went drinking with their friends, James and Wendy O’Hare. There was an argument between the appellant and the deceased; the appellant left the house but broke down in front of Mrs O’Hare before he went home on his own. Mrs O’Hare told the deceased that they should go to see the doctor to help him; her response was to say she had had enough of the appellant. On the following Saturday, 19 July 1997, the appellant drank too much; he assaulted and humiliated the deceased in the street. When he returned to their home at Kinmel Bay on the following day, she had left. She telephoned him to tell him she was not coming back. She went to her brother in Manchester, but did not tell the appellant.

On Monday 21 July 1997, the appellant took all the Temazepam and Prozac he had in an apparent attempt to commit suicide. He was admitted to the Ablett Psychiatric Unit of the Glan Clwyd Hospital. He stated on admission that he had marital problems, was depressed and took the tablets to kill himself.

On 22 July 1997, Dr Farquar, a senior registrar in psychiatry recommended him for admission for assessment under Part II of the Mental Health Act 1983 on the grounds that he had a depressive illness and the suicide risk was high. He was recorded as having an air of defeat and hopelessness. He was assessed. On 24 July 1997 he was seen by Dr Trevelyan, a consultant psychiatrist. Although noted to be depressed, his compulsory detention was removed on the basis that he stayed for a few days and “got his problems sorted”. He saw the deceased; it was this meeting that appeared to have made him consider his problems had been resolved.

On 28 July 1997, he was discharged. His discharge note records “No evidence of depression”. In a report sent on 20 August to the appellant’s general practitioner, the Senior House Officer to Dr Trevelyan reported that soon after admission he was feeling better and had had a long discussion with the deceased and appeared to have sorted out his marital problems. He was on discharge reported to be well in himself and no evidence of depression was present.

The appellant went home to Kinmel Bay; the deceased went with him, but an argument developed and she said she was leaving. He pleaded with her to stay and tried to stop her leaving. She told him she did not love him anymore. He eventually let her leave that same evening.

She went to stay with her brother at Manchester until she moved on 1 August 1997 to a flat at Princes Street, Rhyl with her son Michael. In an account given after the killing, the appellant stated that he resumed cohabitation and sexual relations with the deceased at some stage.

The appellant was seen by his General Practitioner’s locum on 1 August 1997; he was prescribed a week’s supply of fluoxetine (Prozac) (as an anti-depressant), Diazepam and Temazepam. He was seen by his General Practitioner on 6 August and advised to continue with fluoxetine (Prozac); he was feeling better, going back to work and showed no signs of depression.

The appellant and the deceased met at his son’s house on 10 August for a barbecue and appeared to get on fine; the appellant returned to work on 11 August 1997.

On 17 August 1997, the deceased went away on holiday to Cyprus with Alan Sanderson, and returned to North Wales on 26 August 1997. She did not tell the appellant of this. During the period, the appellant tried to find out about her whereabouts without success.

On her return, she told her mother she had decided to divorce the appellant. She spoke to the appellant and made arrangements to meet the appellant the following day at the Midland Bank to sort out their financial affairs. She told him she was not returning.

The appellant worked the night shift of 26/27 August 1997. He returned home where the deceased’s son was woken at his request by the appellant. He described the appellant as behaving unusually. He spoke to the controller at his employer’s office at about 1 pm about the account into which his wages should be paid. He told the controller he was not all right as the deceased had left him.

They met at the Midland Bank at about 4 pm on 27 August 1997; the clerk who discussed matters with them described the appellant and the deceased as appearing to be fine in her company.

After that meeting which lasted about 10 minutes, the deceased agreed that the appellant could return to her flat for a cup of tea. At about 5pm, the deceased’s mother, Irene Crist, called at the flat. There was no answer; the flat was broken into and the deceased found dead with the appellant lying next to her unconscious. He had in his hand the blade of a carving knife.

The deceased had received 11 stab wounds to her upper chest; many of those had been inflicted with considerable force as the blade of the carving knife had been bent and detached from the handle. She had died from massive internal haemorrhages caused by 6 of the wounds, one of which had penetrated the aorta and 5 the left lung.

The appellant had stabbed and cut himself 30 times; he was taken to hospital where he was detained until 4 September 1997. He was placed under arrest whilst at hospital

On his discharge, he was interviewed.

In the course of the interviews he made it clear that he could not remember how he or the deceased came to be stabbed. He stated that after his return to her flat, they had had tea. He asked her to return to him, but she had refused and told him that she no longer loved him and did not want to know him anymore. After that point he had no recollection as to what happened.

Despite being asked several times, he was very clear he recalled nothing after she told him that she did not want to know him anymore.

He accepted that she had said quite hurtful things to him, but he could not say if it sent him “over the edge”, because he loved her too much. When he was asked if it was the end of his world, he said it was; but when asked if he snapped, he said he did not know what happened after that.

He was asked if he was aware she had gone on holiday to Cyprus. His response was that she could not have done as she had not got a passport. He was unaware she had gone. He believed she was in Manchester.

He was also asked if she had told him she had met someone else. His response was that she had not and that she would not do that to him. He was very clear in his answers that he did not know that she had been to Cyprus with Alan Sanderson and she had never told him that. He did not believe she had done that.

He was remanded in custody; he was held for a period in the health centre and continued to be on Prozac. He was seen by Dr Trevelyan and his Senior House Officer. He concluded in a report to the appellant’s solicitors dated 3 October 1997 that the appellant had recovered with such speed after his admission to hospital in July that it was impossible to argue that he was suffering from an endogenous depressive illness; the diagnosis had to be that he had a reactive depression to the circumstances he was in.

He was committed for trial on 10 November 1997.

The appellant was represented by Edward Hughes, solicitors at Rhyl, and by Mr Waldron QC and Mr Gordon Cole, both of whom were at that time very experienced counsel in criminal trials. A very detailed proof was taken, but it did not contain any further recollection of what had happened at the time the appellant killed the deceased; he confirmed the accuracy of what he had told the police in his interview.

Psychiatric reports were obtained from forensic psychiatrists of established and impeccable reputation.

Dr Boyd saw the appellant on 17 December 1997 and 12 January 1998 and submitted a report for the defence on 13 January 1998. He concluded that he could find no evidence to suggest that at the material time the appellant was suffering from any condition that would have impaired his responsibility for the killing of the deceased. He noted that the appellant’s lack of memory made it impossible to know if anything was said or done which could have provoked him in any way. In a further report on 4 February 1998, he gave his opinion that the Prozac and Temazepam which the appellant had been taking had had no significant effect on the appellant’s actions

Dr Higgins saw the appellant on 26 November 1997 and 14 January 1998. He submitted his report to the Crown on 27 January 1998, concluding in respect of the appellant:

Only very brief notes survive of the advice given by the appellant’s lawyers at the time. The lawyers were not asked about their recollection until October 2006; it is hardly surprising that they have little reliable recollection beyond that in the notes. We have therefore relied primarily on the notes in reaching our conclusions.

The initial advice was recorded in three notes of conferences and telephone calls in January1998.

A note dated 15 January 1998 records Mr Cole reporting that Mr Waldron QC had advised the trial would go ahead. Although the appellant had no recollection, he must have acted under provocation. The realisation that his wife was leaving him probably led him to do the act; realistically the appellant had little to lose by taking that position.

A very brief note of a conference with Mr Waldron QC and Mr Cole on 16 January 1998 made clear that every effort would be made to defend the case. It was hoped to get a report which would support a plea of diminished responsibility, as the prosecution had hinted that they would accept such a plea. A further note of 22 January 1998 confirmed this advice and indicated that the prosecution might allow an issue of provocation to go to the jury.

On 23 January 1998, a defence case statement was served in accordance with that advice. The appellant stated that he had little recollection of the events leading up to the death. He accepted that he had killed the deceased, but had done so under provocation. The defence of diminished responsibility was under investigation.

At sometime before the trial was due to begin, but after 27 January 1998, the report of Dr Higgins was served by the Crown. Dr Boyd’s report was not served. A note at the same time or shortly thereafter was served by the Crown in which it was made clear that there was no evidence to support the defence of diminished responsibility and that there was no evidence from any source of words or conduct on the part of the deceased such as might provoke a sudden and temporary loss of control. The note concluded:

A letter of advice was sent by Mr Waldron QC on 2 February 1998 in response to detailed questions asked by the appellant’s solicitor. Amongst other matters, Mr Waldron QC made clear that in the light of the reports, it was unlikely that the defence of diminished responsibility could be advanced unless there was further supporting psychiatric evidence.

There was a further conference with the appellant on Friday 6 February 1998. According to the very brief note, the appellant, despite the content of the reports, was adamant that Prozac had played a part in his actions. Mr Waldron QC made clear that he did not consider that such a defence would run. When he asked the appellant if the appellant could recall anything else, he said he was beginning to have some muddled memories.

On 5 February 1998, Dr Trevelyan wrote to the appellant’s solicitors to say that he could not disagree with Dr Boyd’s report. He made clear that his mental state on examination when he saw him did not indicate a diagnosis of acute mental illness; he was sorry he could not help the appellant.

On Wednesday 11 February 1998, there was an application to the trial judge, Sachs J, by the Crown in relation to the case of provocation advanced in the defence case statement. The Judge ruled in favour of the Crown. Following the ruling, he again saw his counsel. The appellant then pleaded guilty to murder. As what happened on that day is central to the first ground of the appeal, it is necessary to set out the contemporary evidence in some detail.

Mr Waldron QC and Mr Cole saw the appellant for 45 minutes before the application with the appellant’s solicitor. The notes taken by the solicitor are again very brief and can be set out in full (with punctuation added):

Mr Griffith Williams QC, for the Crown, then asked Sachs J, to rule that the appellant should not be allowed to advance any argument directed to provocation based upon the fact that the deceased went to Cyprus, as the appellant had said in clear and unequivocal terms that he had no knowledge of that. It would be pure speculation. They could only rely on matters set out in the interview to which we have referred at paragraph 10. Mr Waldron QC responded on the basis that although the appellant had no recollection, there was evidence on which the jury could conclude that there was provocation. It would not be mere speculation. Sachs J ruled in favour of the Crown on the basis that there was no evidence that would permit the appellant to rely on the deceased going to Cyprus as part of the defence of provocation; it would be pure speculation. It was accepted before us that the ruling was undoubtedly correct.

Counsel then saw the appellant with the solicitor’s clerk, as the solicitor had had to return to the office. A note of conference which lasted 30 minutes was made by the solicitor’s clerk. It reads in full as follows:

The indictment was put again and the appellant pleaded guilty to murder. In his plea in mitigation, Mr Waldron QC explained to the judge that after the ruling, the appellant had accepted advice that there was no other defence open to him.

Mr Waldron QC endorsed his brief: “Judge ruled issue of provocation not to be left to the jury”.

The appellant sought leave to appeal immediately afterwards.

In grounds dated 14 February 1998 drafted by Mr Waldron QC it was contended that the ruling of Sachs J was wrong. It could properly be inferred that it was likely that the deceased had disclosed as a compelling reason for her refusal the association that she had formed on her holiday to Cyprus, though the appellant could only recall her refusal to return and his refusing to take “no” for an answer. The grounds were supported by an advice which elaborated the argument that it would have been open to the jury to infer that the deceased had given a compelling reason why she would not return which in turn caused him to lose his self control.

Sometime between then and 12 March 1998, the appellant wrote to his solicitor asking to see him, as he thought that the judge’s decision was wrong and he should have had a trial before a jury. More details had come back to him, as he had stopped taking medication for his depression.

Thereafter his sister visited him in prison; he provided her with a note of what he could recall of the events of the killing. His solicitor responded on 12 March 1998 in some detail to the appellant’s letter explaining why the defences of provocation and diminished responsibility were not available; he also drafted a statement which the appellant signed on 13 March 1998 adding some further recollection in manuscript. In that statement the appellant said that things were starting to come back to him about the day on which he killed his wife. He said:

A further advice dated 31 March 1998 was provided by Mr Waldron QC in which it was sought to adduce the statement as fresh evidence under s.23 of the Criminal Appeal Act 1968. He advised that it was unlikely that the statement would be regarded as fresh evidence. Although the statement provided some evidence of provoking words and conduct, it did not address the question of whether the provocation had caused the appellant to lose his self control. He also advised that

The solicitor saw the appellant on 30 April 1998. His note records:

Leave to appeal was refused by Laws J on 18 May 1998 as he considered that the judge was right and that the new witness statement did not justify the grant of leave. He described it as “self serving, undated, unaccompanied by any description of the circumstances in which it was taken or by any medical account of the likelihood of the applicant’s memory being recovered in the way suggested”.

As we have mentioned, the Criminal Cases Review Commission sought further information in October 2006 from both Mr Waldron QC and Mr Cole. They had little recollection of events save that prompted by consideration of the documents. We do not think it necessary to refer to the correspondence, for, as Mr Waldron QC explained, it was not his memory that he was recounting, but his own ex post facto reasoning.

We have referred at paragraph 28 iii) to the first recollection the appellant claims he had and which was recorded in the statement of 13 March 1998.

Nothing is then recorded until sometime shortly before 1 June 1999 when the appellant whilst at Gartree Prison wrote to Ms Jain of A.S. Law, Liverpool, new solicitors acting on his behalf. In the letter he said that he could not recall what had happened, but he was praying it all would come back. All he recalled was that the deceased said he was too old for her, that he could no longer get an erection, that he was no good to her and she did not care that he was deeply depressed under Prozac and Temazepam. She may have mentioned the other man, but he swore he could not recall her saying anything about that man at the time. He did not remember stabbing her or himself or where the knife came from. He had been on a grief and loss course and been doing self hypnosis in the hope it would come back, but he had been told it might never come back.

The major event that is relied upon is said to have occurred on Boxing Day 1999.

Prison medical records for 27 December 1999 note that he had a flash back to the offence, that he realised that he had killed his wife, but had been blanking it out for 2½ years. The record for the following day noted that he thought that the flash back had been triggered by the image of a man stabbing a woman with a combat knife in a film he had seen on Boxing Day.

On 29 December 1999, he wrote to Ms Jain asking her to see him as he had had a full memory return of everything that happened on the day of his wife’s death :

No statement was taken from him about this until 18 January 2001, just over a year later. However, in a letter written by him to Ms Jain in the summer of 2000 in response to a letter which was not available to the court, he did not set out any further detail of the recall he claimed had occurred on Boxing Day 1999. His letter seeks at length to respond to a report of a Dr Healey (apparently dated 26 June 2000) who had seen him and reported on him. A copy of that report was not available to the court.

He expressly made the statement on 18 January 2001 to enable his solicitors to consider whether

In January and June 2002, reports were made on him in relation to his lifer regime.

The first was made on 3 January 2002, by Dr Geelan, a consultant psychiatrist who had seen him the day before. Although his report was primarily directed at his lifer planning, the report set out the appellant’s recall of the circumstances of the killing as recounted to Dr Geelan. The appellant told him that he could not remember the details. There was no mention of problems with impotence or of his having been told by the deceased that she had a younger boyfriend. He merely recounted that she had abused him and told him that she was going to leave him. He recalled going into the kitchen, the deceased picking up a cooking utensil and he picked up a knife. When the deceased lunged at him, he grabbed her by the throat and stabbed her.

His account of events set out a report made by Ms Robbins, a probation officer, on 25 July 2002 mentioned the matters he had set out in his statement of 18 January 2001, but in different terms. The deceased had told him that she wanted nothing to do with their debts and that she was not coming back to him. When he told her that he was confused, she told him she did not care at all for him, he was far too old and that she had got someone younger. When he enquired how long she had been seeing the other man, she told him that it had nothing to do with him adding “let’s face it you can’t get a hard on anymore”. This comment really hurt him and led to him acting as he did. He recalled vaguely picking up the knife; the deceased had a fish spatula in her hand. He knocked it away and when she tried to run to the front door he pulled her back, grabbed her shoulder and she came down on the floor. It was then that he stabbed her. He thought that it was 4 times, but he knew it was 11.

Although he made a formal statement on 26 August 2002 dealing with his life, his marriage and the events leading up to going to the bank on the day he killed the deceased, he stated in that statement that he would deal with the details of what happened after they arrived at the deceased’s flat, when he saw Dr Somekh, an eminent consultant forensic psychiatrist with the Central and North West London Mental Health NHS Trust, instructed by Ms Jain.

Dr Somekh saw him on 20 November 2002 and reported on 24 December 2002. Dr Somekh recorded that the appellant had told him of the circumstances of his recall occurring when he saw a woman being stabbed on a TV programme and things started coming back that night over the following week. His recall was that when they had been talking in the living room about their debts and she told him that she was not going to help him; there was then an exchange of aggressive words. When he asked her what he had done that had led her to treat him like that, she replied that he was too old and “let’s face it, you can’t even get a hard on”. He explained that he had had minor problems in getting an erection, but it had been worse after he had started taking Prozac 4 to 5 weeks before the killing. He said this remark about his impotence and her mentioning to him that she had found someone younger had led him to lose his control. She had not mentioned Cyprus. They went into the kitchen. She tried to leave. He pulled her back and she picked up a utensil. He could not recall how he picked up the knife as it had never come back. He then stabbed her.

A lifer progress report made on 22 January 2003 by two psychologists sets out a record of the account given by the appellant, but it is not necessary to refer to it in detail, other than to record that he said the deceased had said hurtful things to him about Rebecca, that she had found someone else and he was too old. No mention was made of her saying anything about his impotence.

On 4 June 2003, the appellant made a formal statement setting out his account of the killing. He said that, after they had gone to her flat following the meeting at the bank and they were having a cup of tea or coffee, he had asked the deceased what he had done that she had to leave him. She had said that he was always depressed because of money problems. They talked about money. She was hurtful about Rebecca, her daughter and she made it clear she did not care how he paid off his debts. When he asked her why she had wanted a couple of weeks away, she said she had lied and then added “let’s face it you are too fucking old for me anyway and I have met someone younger”, but she had not slept with him. When he asked who it was, she told him it had nothing to do with him – “let’s face it you cannot even get a hard on anymore”. She walked past him into the kitchen and it was then he lost control of himself. What then happened still eluded him; he did not remember where he picked up the knife from. The deceased had some form of spatula in her hand. He got it off her and she went for the door. He grabbed her by the shoulder and pulled her on to the floor and that is when he stabbed her.

In January 2003, a submission was made to the Criminal Cases Review Commission to review the conviction on the basis that there was evidence at the time of the trial on which the issue of provocation should have been left to the jury and that there was fresh evidence.

The appellant suffered a stroke in September 2004 and has since that time been suffering from progressive dementia.

He was interviewed by the Criminal Cases review Commission in February 2006 as part of their very thorough investigation. Little reliance could be placed on what he recalled at that time because of his stroke in 2004 and subsequent progressive dementia.

Professor Kopelman, Professor of Neuropsychiatry in the University of London reported on 16 February 2007 on the investigation at the request of the Criminal Cases Review Commission without seeing the appellant.

The appellant was seen by two further psychiatrists after the reference was made by the Criminal Cases Review Commission on 16 August 2007:

Professor Eastman, Professor of Law and Psychiatry at the University of London and Head of Forensic Psychiatry at St George’s, University of London interviewed the appellant on 5 March 2008. He is an eminent authority on psychiatry.

Dr Chesterman, Consultant Forensic Psychiatrist to the North Wales Forensic Psychiatric Service interviewed the appellant on 13 October 2008.

Counsel for the appellant made it clear that he wished to call the appellant if the Crown sought to draw any adverse inference from his failure to give evidence. The Crown made no such attempt. In the circumstances, his counsel submitted that he should not give evidence as there were serious concerns over his ability to recall events, given his present medical condition. The appellant was therefore not called to give evidence. We accept that there are understandable reasons why he did not do so, given his medical condition. We have drawn no inferences from the fact he did not give evidence before us.

In his very powerful argument to us, Mr James Wood QC submitted that it was clear from all the evidence that Mr Waldron QC had given wrong advice. He had failed to advise a case of provocation could be advanced on the basis of what the appellant had said in interview. He had misunderstood the scope of the ruling which was confined to reliance on an inference to be drawn from the visit to Cyprus; the ruling left intact the ability of the defence of provocation to be advanced on what the appellant had said in interview.

We are, however, satisfied that before the ruling the appellant’s legal team had (a) considered the availability of the defence of provocation; (b) concluded that it was available only on the basis that the deceased had told the defendant that she had been on holiday to Cyprus with another man; and (c) advised the defendant accordingly. His legal team had not misunderstood the ruling.

Provocation was referred to in general terms in the defence case statement to which we have referred at paragraph 17.

We cannot accept the submission made on behalf of the appellant that a case could have been advanced on the basis of what he had recounted in interview, namely that the deceased had told him that she did not love him and was not coming back. Without the evidence in relation to going to Cyprus with another man, the defence of provocation had not the remotest chance of success.

The evidence was clear. The appellant had been violent to the deceased before. He had previously said that he would kill her if she left him, although the evidence which is now admissible is much more extensive than that which would have been admissible in 1998. He never said in the police interview that he was provoked by her saying that she did not love him and was not coming back. She had said the same before, but he had not previously lost his self control. It was impossible to say how long had elapsed between her saying that she did not love him and would not be coming back and the time of the stabbing and in the meantime he had taken possession of the knife.

He did not give instructions to his defence team to any other effect. The defence team had to proceed on the basis that if he were called to give evidence the appellant would say the same to the jury.

In any event there was no prospect of a jury finding that a reasonable man, on hearing such words, would or might have lost his self control and reacted as the appellant did.

As the advice we have set out would without doubt have been correct, we are in effect being asked to infer that the experienced defence team failed to advise him that there was a defence of provocation which might have had a prospect of success, however slim, before the jury on the basis of what he had said in interview.

The notes kept by the solicitor are sketchy. It would appear from the note of the conversation with Mr Cole on 15 January 1998 (to which we have referred at paragraph i) that Mr Waldron was considering advancing a case of provocation on the basis that the realisation that his wife was leaving him probably led him to this act. There is no record of provocation being discussed at the consultation with the appellant on the following day (see paragraph ii)) as a possible defence apart from the reference to the defence case statement. The note recording the report of a discussion with the Crown on 22 January 1998 (see paragraph 18), the letter of advice of 2 February 1998 (see paragraph 19) and the note further conference on 6 February 1998 (see paragraph 20) all make it clear that the focus was on the defence of diminished responsibility.

At the consultation on 11 February 1998 before the Crown’s application was heard by the judge, the note records the appellant being advised that he would have to plead guilty unless the judge allowed ‘the provocation’ to go forward (see paragraph 23).

In the submissions made to Sachs J the Crown drew attention to the fact that the only matter the appellant could recall that the deceased had said was that she did not love him and she was not coming back to him. The Crown had made it very clear (see paragraph 18) that they did not consider that this amounted to a defence of provocation. It is inconceivable that the appellant’s legal team would have ignored this way of putting the case for provocation, if they thought that there was even a remote prospect of contending that these words amounted to provoking conduct.

It is the inescapable inference from the note of 11 February 1998 and the argument before Sachs J that followed, that it was clearly Mr Waldron QC’s view that the defence of provocation would fail unless the inference in relation to the appellant being told of the deceased’s visit to Cyprus with another man could be drawn by the jury.

We consider for these reasons that it is clear that the appellant was given clear advice that the defence of provocation would fail unless the jury were allowed to infer that the deceased had told him of her going to Cyprus with another man.

We are satisfied that the consultation after Sachs J’s ruling that the jury could not draw such an inference proceeded on the basis that the judge had ruled against the defence on the only way a defence of provocation could have been advanced with any remote prospect of success. We are also satisfied that Mr Waldron QC did not misunderstand the judge’s ruling.

We have reached the firm conclusion that there was no prospect that a case of provocation could have been advanced successfully, save on the basis that it could be inferred that the deceased had told him about her visit to Cyprus. A case advanced on the basis of the events we have set out as then recalled by the appellant had not the remotest prospect of success. Mr Waldron’s advice was undoubtedly correct on the evidence that was available at the time.

It is also important to note there has never been a suggestion that pressure to plead was applied. It is clear that the appellant was not arguing that he wanted to advance a case of provocation. He was apparently disappointed that he could not run a defence diminished responsibility, but there was no evidence at all to support such a defence. The advice and other documents relating to the appeal are consistent only with the view that the advice we have concluded was given prior to the plea was given.

The effect of incorrect advice

In any event, if we had concluded that the appellant should have been advised that even without the Cyprus evidence, a case of provocation could have been put before the jury or that on the basis of the authorities the judge would have to leave even the most tenuous case to the jury, albeit with little prospect of success, we consider that the appellant’s appeal on this issue would have failed. We can deal with this issue briefly in the light of our conclusion that the advice was not erroneous.

We accept that we are concerned not with the general jurisdiction of this court under s. 2 of the Criminal Appeal Act 1968 under which an appeal against conviction is allowed if the court thinks that a conviction is unsafe. We are concerned with the special jurisdiction to grant a writ of venire de novo expressly preserved for this Court by s. 53(2) (d) of the Supreme Court Act 1981.

The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial “is actually no trial at all” (see the opinion of Lord Atkinson in Crane v DPP [1921] 2 AC 299 at 330) or where there has been “some irregularity in procedure which prevents the trial ever having been validly commenced” (see the opinion of Lord Diplock in Rose (1982) 75 Cr App R 322 at 336.

In our view, the correct approach where the appellant seeks to contend that his plea of guilty should be vacated and the proceedings declared a nullity is that set out in R v Saik [2004] EWCA Crim 2936, specifically at paragraph 57:

The question for us is whether, on the assumption we have made in relation to the advice given, “the facts [are] so strong as to show that the plea of guilty was not a true acknowledgment of guilt”. As we have set out there was no pressure, let alone any improper pressure; the appellant did not protest that he did think he had a defence of provocation. His concern was as to the defence of diminished responsibility. Although we accept that the appellant’s memory has been severely affected by his stroke (as set out at paragraph 40), we can see no basis for concluding that his plea was not a true acknowledgement of guilt.

It was submitted that the conviction was also unsafe because if the appellant had not pleaded guilty on the basis of erroneous advice, then the issue of provocation would have had to be left to the jury. We have already rejected the submission that the advice was erroneous. In the circumstances, it is sufficient to say that even if the advice had been erroneous, we do not consider that this way of advancing the argument, even if correct, could have made any difference to the result. The case on provocation on the basis of the appellant’s evidence at the time had no prospect of success.

It is evident from our conclusion on the first issue that in our view there was no evidence in 1998 on which it was remotely possible that the jury could have concluded that the appellant had a defence of provocation. However, the appellant’s case was that there was fresh evidence based on the appellant’s recovered memory on which, applying the test in Pendleton a jury might have concluded that the appellant was provoked. It was contended that his memory loss was genuine and the recovered memory of the appellant was both genuine and reliable; if there was evidence capable of belief that that was so, then there was strong evidence of provocation which a jury would have had to consider and might well have accepted.

Professor Kopelman, an undoubted authority on memory disorders and on recovered memory, was an impressive witness. He made it clear in his evidence that offenders can suffer from amnesia and recover their memory; he referred in particular to the study he had carried out with Dr Pyszora in 2003 and a further unpublished study. It was more likely, in his view, that memories following a head injury, alcoholic blackout or psychological memory loss recovered relatively early were likely to be more accurate than memories retrieved after a long delay when mistaken or inaccurate memories might be interspersed with true or accurate memories. He made it very clear that there was no objective test to determine whether a recovered memory was accurate or not. That was a matter for the court. His views were supported by the evidence of Dr Somekh and Professor Eastman, though they deferred to his greater expertise.

Dr. Chesterman accepted that genuine cases of amnesia could not be excluded and did occur, but he did not consider that genuine recovered memory in such cases was as common as suggested by Professor Kopelman; he regarded the science as “extremely controversial”. His experience and expertise was undoubtedly less than that of Professor Kopelman. We consider that Professor Kopelman’s evidence should be accepted to the extent that there can be cases where after genuine amnesia, there can be truthful and reliable recovered memory.

However that conclusion only enables the appellant to advance his case on the basis of the evidence in this case that there can be cases of truthful and reliable recovered memory after genuine amnesia. It is for the court to determine, as was made very clear, whether the evidence passes the Pendleton threshold. We approach this task having in mind the views of all the experts on the application of the science of recovered memory to the appellant’s case:

Professor Kopelman in his report, supplementary report and evidence explained the conclusions that he had reached in respect of the appellant. He concluded that, as amnesia was reported as commonly occurring in crimes of passion where the crime took place in a state of emotional arousal and stress, it was plausible, particularly in the light of the appellant’s history of depression and his loss of consciousness, that he had suffered from amnesia. It was possible that the recovered memory was fabricated, but he did not consider it was. The history of an incremental recovery was plausible, but it was much more difficult to determine whether the content of his recall was accurate. What he had recalled earlier was likely to be more accurate than that which he recovered later.

Dr Somekh considered that the memory loss and recall was genuine; it made no sense for him to withhold matters at trial which deprived the appellant of a defence of provocation and he could not have fabricated his subsequent recall. Professor Eastman adopted Professor Kopelman’s opinion; he simply added that the loss of memory was not in his view self serving as he could have fabricated a defence of provocation at the time, if the loss of memory had not been genuine.

Dr Chesterman considered that there was no evidence that the amnesia was genuine as no tests had been carried out contemporaneously. He could not accept that the alleged recovered memory was either accurate or genuine; he pointed to the inconsistencies in the various accounts.

We have concluded that the evidence of recovered memory does not pass the test in Pendleton:

We cannot accept that there is credible evidence that the recovered memory is genuine:

It is very difficult to accept that he had genuine amnesia; the far more likely explanation is that he did not wish to reveal what had happened, as he knew that would not provide him with a defence. It is significant that what he wished to advance was a defence of diminished responsibility on the basis that his actions had been influenced by Prozac.

He claimed his memory began to recover as early as 13 March 1998 – see paragraph iii). The timing is of striking significance as he was attempting to find a ground on which to appeal. He purported to remember that the deceased had told him she had been away with someone, but had not slept with him. He did not mention any taunts of impotence or how he had killed his wife.

When in about June 1999 he next gave an account (see paragraph 32), his recall was of the deceased telling him of his impotence, but nothing of her going away with another man. He did not know where the knife had come from.

When he claimed a much greater recall had occurred in December 1999 (see paragraph 33) the appellant was unable to say in what film or TV programme he saw the images of a man stabbing a woman, said to have been the ‘trigger’. This was despite the fact that he reported flashbacks only a day or so after he said he had viewed the images.

In his letter written immediately after on 29 December 1999 to his new solicitor Ms. Jain (see paragraph ii)) he said “I now know I was provoked into it”. We are driven to the conclusion that what he alleges he recalled was an attempt to resurrect the defence of provocation which had previously failed when he sought leave to appeal in 1998. He gave no details, merely asserting that he had been provoked.

When he gave details in his statement of 18 January 2001 (see paragraph iv), it was avowedly made for the purpose of an appeal. It recounted an elaborate account of the killing with the causes of his loss of control being then attributed to her speaking of her disinterestedness in their debts, her having a new and younger boyfriend and his inability to get an erection. The addition at this stage of his purported recall of her telling him about her new boyfriend and his impotence is explicable against the background only of an attempt to find a better case than those which had not previously sufficed.

The whole of his actions are consistent only with an attempt to find a ground to escape from his plea of guilt to murder which he had never accepted he had committed. From very shortly after his plea, his sole motivation was to find a way out. When his first attempt was dismissed by the Single Judge in 1998 as self serving, he tried and tried again.

It is difficult to accept that his account of her mentioning his impotence is genuine or that it could have contributed to his alleged loss of control. Although he mentioned in the letter found after the killing that that his ability to have sexual intercourse with the deceased was beginning to fail and Dr Higgins’s notes indicated that he mentioned that he had had difficulties a month before the killing, it is clear from those notes and the report that he told Dr Higgins that the sexual aspect of his marriage had always been very good and his wife had been pleased with his sexual performance. In complete contrast, when he gave an account of his impotence to Professor Eastman, the elaborate details in that account are consistent only with an attempt to embellish a version of events which would fit with what he claimed the deceased had said to him about his impotency. A further confirmation of that fabrication is his explanation of his “wife swapping” given to Professor Eastman; his explanation of that to Professor Eastman was his inability to provide sex for his wife. However his account given in his police interview of this activity makes clear that he instigated it for his own purposes and was apologetic for having done so.

Nor, even if the recovered account was genuine, could we accept it as a basis on which a jury could consider that they might rely.

Professor Kopelman pointed out that the longer after the event the memories were recovered the less reliable they were likely to be, though there was no cut off point.

Many of the memories in Mr. Evans’s case were recovered years after the event. His purported earliest recovered memories in 1998 did not provide a basis for a case of provocation.

The later purported recovered memories, if genuine, might have done, but they could not, given the lapse of time and the way in which they emerged be regarded as reliable. We have set out why we regard the evidence in relation to impotence as fabricated, but even if it was not fabricated, it is impossible to see how it could be reliable, given his contemporary evidence to Dr Higgins that the sexual aspect of his marriage had always been good. It is also inconsistent with his account in his statement of 26 August 2002 (to which we referred at paragraph 35) in which he stated that at the end of July 1997 – after his discharge from hospital and shortly before the deceased finally left him - “ we slept together and made love”.

In assessing the genuineness of the recovered memory, we have also taken into account the pathology evidence which is said to provide independent supporting evidence of the truth and accuracy of part of the recovered memory. It was contended that a report by Dr Shorrock, a consultant forensic pathologist, provided for solicitors instructed on behalf of the appellant in December 2003, showed that the deceased was on her back when she was stabbed; this was consistent with his account that he had stabbed her whilst she was on the floor.

Dr Wayte, the forensic pathologist called at trial, expressed the view that the deceased must have had the upper part of her body in an upright position after receiving one or more of the stab wounds. As blood had fallen onto the front thigh area of her trousers, she must have been standing or sitting when the bleeding occurred.

Dr Shorrock concluded that the stab wounds were all inflicted when the deceased was in the same position. This was unlikely to have been when she was standing. As she was unlikely to have remained motionless and must have collapsed at some stage, the explanation for the stab wounds being when she was in the same position was that she must have been on her back. The blood on her trousers could have been caused by dripping from the knife, from the appellant’s wounds or been expelled from the air passages.

Derek Wakley, an expert on blood pattern distribution, was asked by the Criminal Cases Review Commission during their very thorough investigation to review the contemporary evidence and the reports of the forensic pathologists. Although he accepted the view of Dr Shorrock that some of the injuries sustained by the deceased were most likely to have occurred whilst she was lying on her back on the floor, it was possible that one strike had occurred whilst she was still standing before falling or being forced to the floor. There was clear evidence that there were downward drops of blood on the trousers, but no attempts had been made at the time to determine whether they had come from the appellant or the deceased. If they had come from the deceased, then she must have been sitting or standing.

We have therefore concluded that there is no fresh evidence that reaches the threshold test in Pendleton to provide a basis on which a defence of provocation could be advanced before a jury, even on the assumption (which we will make for the purposes of this issue) that he was suffering from a depressive illness. The evidence simply does not pass the threshold test in respect of the genuineness or accuracy of his account of what he was told by the deceased. It is therefore not necessary for us to consider what course should be followed if we had reached a different conclusion in circumstances where, given the appellant’s present medical condition, it would be very difficult for there to be a trial on the issue of provocation.

We have set out at paragraph 14 above the evidence of the psychiatrists who examined the appellant in the period between the killing and his trial. Both considered that there was no evidence on which a defence of diminished responsibility could be put before the jury

The appellant contended that the fresh evidence of Professor Kopelman, Dr Somekh and Professor Eastman showed that the appellant was suffering from a depressive illness.

Professor Eastman and Dr Somekh were highly critical of Dr Trevelyan’s diagnosis of the appellant, the cursory way in which it appeared his diagnosis had been made and records kept. Each reached his own independent diagnosis based on a comprehensive review of the material and an examination of the appellant that the appellant had been suffering from an depressive illness:

Dr Somekh considered that he was suffering from a moderate depression.

Professor Eastman considered that he was suffering from a moderately severe depressive illness; he reached this conclusion by a thorough review of the general practitioner and hospital notes and his examination of the appellant.

Dr Chesterman disagreed with their views. He considered that on an examination of all the contemporary material and his examination of the appellant, the appellant was not suffering from a depressive illness; he set out in his evidence his approach to the diagnosis he would have made.

We do not consider it necessary to set out the detail of the evidence given, as for the reasons we give below, there was an issue between the experts who gave evidence before us in 2009 as to their assessment of the appellant’s mental state in 1997 which it is not necessary for us to resolve. It is sufficient to say that we were referred to a large amount of contemporaneous evidence of the appellant’s condition, both lay and medical, in the period prior to the killing and an analysis of that evidence against the diagnostic standards for depressive illness in ICD-10 and DSM-IV-TR.

We accept that criticism can be made of the way in which Dr Trevelyan assessed the appellant during his confinement at and discharge from the Ablett Psychiatric Unit in July 1997. We also accept that there was a clear conflict of interest in which Dr Trevelyan was placed, when a man he had discharged from his care had within a month committed murder. He should not have provided an opinion in relation to the proceedings. It would therefore have been difficult in those circumstances for us to have placed significant reliance on his report of 3 October 1997 to which we referred at paragraph 11 or his subsequent report of 5 February 1998 to which we referred at paragraph 21.

We also consider that well founded criticism could be made of the evidence of Dr Chesterman as to his analysis of the evidence and the application of that analysis to the diagnostic standards for depressive illness in ICD-10 and DSM-IV-TR.

We would therefore have concluded that, if the only evidence in relation to the appellant’s mental state was that of Dr Somekh, Professor Eastman, and Dr Chesterman given to us in 2009 together with the contemporaneous report of Dr Trevelyan, the evidence of Dr Somekh and Professor Eastman may well have been evidence which could have been admitted under s.23 of the Criminal Appeal Act 1968 in the interests of justice; it would have raised an issue which would have passed the Pendleton threshold, as there would plainly, given the criticism that could be made of the report of Dr Trevelyan and the evidence of Dr Chesterman to us, be an issue for the jury.

However, that was not the evidential position. The appellant had been examined in 1997 and 1998 by Dr Boyd and Dr Higgins. It was not disputed that Dr Boyd and Dr Higgins were forensic psychiatrists of the highest reputation who had carried out very thorough investigations of the appellant’s mental state at a time contemporary to the killing. We cannot accept that they may have wrongly placed reliance on Dr Trevelyan’s opinion or that they were led into error by Dr Trevelyan’s diagnosis to which they referred in their reports. They made their own independent assessments and did not rely on Dr Trevelyan’s diagnosis. Some criticism was made that Dr Boyd’s report did not show he had taken a detailed history; we cannot accept that criticism. His notes show a detailed examination took place. His report is an elegant example of a concise report that a court finds of refreshing helpfulness in contrast to the more recent practice of excessive recitations of detail that do much to hinder rather than help a clear understanding of the issues.

The approach to the admission of fresh evidence in these circumstances is set out in R v Erskine [2009] EWCA Crim 1425. We are entirely satisfied that the issue of diminished responsibility was most carefully examined in 1997 and 1998 by Dr Higgins and Dr Boyd and firm and unimpeachable conclusions reached; they did not fall into error. The issue was thoroughly investigated by the conscientious and experienced legal team that represented the appellant; they left no avenue unexplored. Dr Somekh, Professor Eastman and Professor Kopelman have put forward a new opinion, but there is nothing in what they say that was not investigated at the time by the two highly experienced psychiatrists who had the benefit of a contemporaneous examination of the appellant. The significance of the contemporaneous examination is underlined by the consideration that aspects of what the appellant told Professor Eastman many years later are at variance with what he told those who examined him within months of the killing. Psychiatrists often differ in their conclusions; such a difference can be resolved by the trial process. As in this case there is no basis for contending that Dr Higgins and Dr Boyd fell into error or did not reach a conclusion reasonably open to them, it is not permissible many years later to allow other psychiatrists by expressing different opinions to re-open the issue that was diligently investigated and resolved at the time.

This is therefore not a case where it is in the interests of justice to admit the evidence in relation to his psychiatric condition.

We have considered again all the evidence in this case in relation to the overall safety of the conviction in the light of all the evidence now before us. We are satisfied that there is no basis for concluding that the partial defences of provocation or diminished responsibility were available to the appellant in circumstances where he plainly killed his wife in a violent and frenzied attack.

There is in our view in the evidence before us sufficient to make clear that he was a jealous and possessive man with a violent temper. There is, for example, the evidence of Mr Alan Sanderson that the deceased told him that when she told the appellant she wanted to leave him, he would always reply “You ever leave me, no-one else will have you, I’ll fucking kill you.” There was significant other evidence to similar effect, including that to which we referred at paragraph 6. We are satisfied that when the deceased made it abundantly clear to him she was leaving him permanently and not coming back, he carried out that threat and killed her in vicious and violent circumstances.

He has never been prepared to accept his simple guilt for his actions that resulted in the wilful murder of his wife. On the contrary, he has attempted by every means possible to find over the years an avenue which might enable him to seek a way of escape from his plea to that wilful murder. Each of those matters has been very properly the subject of the most diligent enquiry by the Criminal Cases Review Commission and of a three day hearing in this court most ably conducted on the appellant’s behalf by Mr James Wood QC. We have examined all the material provided on the matters raised and considered all the arguments and, for the reasons we have given, we are satisfied they are without any substance.