The Criminal Cases Review Commission made an error of law in refusing to refer the claimant's case to the Court of Appeal. The Commission misconstrued the Court of Appeal's appellate function and failed to identify inadequacies in the trial judge's directions on the issue of provocation.Application for judicial review of the decision of the Criminal Cases Review Commission on 2 July 2002 not to refer the case of the claimant ('F') to the Court of Appeal. On 22 March 1996 F was convicted of murdering a neighbour by a single blow to the head with a crowbar following a disagreement. The trial judge had directed the jury to consider the issue of provocation, although the defence expressly had excluded its relevance. The trial judge suggested to the jury that, in light of the defence's approach, "you perhaps will not be troubled by consideration of (the provocation issue) very long". The defence had raised diminished responsibility as a defence and, in that regard, evidence was heard from four psychiatrists. None of the psychiatric evidence was referred to in the trial judge's provocation direction to the jury. F submitted that the Commission had made an error of law in deciding that there was no real chance that the Court of Appeal would overturn the conviction. In particular, the Commission was said to have erred by reference to: (i) the relevant law on provocation at the time of trial and then following the decision in R v Morgan James Smith (2001) AC 146; (ii) the way the jury were directed on the issue of provocation; and (iii) fresh evidence from three of the psychiatrists on how their evidence on diminished responsibility related to the issue of provocation and in particular evidence that F might have been suffering from a depressive illness.HELD: (1) In light of the law at the time of trial, the trial judge arguably misdirected the jury on the issue of provocation. The jury ought to have been directed that provocation had to be given full consideration regardless of its express rejection by the defence. There was psychiatric evidence relevant to a provocation direction. Furthermore, the onus to disprove the defence lay with the prosecution. (2) Contrary to the Commission's conclusion, the jury would have been given a very different direction if the trial had occurred after the decision in Smith (supra). After that decision, F's possible depressive illness was undoubtedly a characteristic relevant to the issue of provocation. The psychiatric evidence of F's depressive illness was of potential advantage to his case as it provided an alternative to the Crown's claim that his behaviour was caused by him losing his temper. (3) It followed that the real provocation issue was never properly before the jury and, if the Court of Appeal agreed that this had been the case, the Commission ought to have found there was a real chance that the jury's verdict might have been different. (4) The Commission applied the wrong test in determining that the Court of Appeal would evaluate the fresh psychiatric evidence relating to provocation and determine the issue of provocation as a jury would. Such an approach by the Court of Appeal would be contrary to s.3 Homicide Act 1957. (5) Accordingly, the Commission's decision would be quashed and the matter remitted for reconsideration.Application allowed.
 EWHC 835 (Admin)