Workman v R. [2014] EWCA Crim 575

[2014] EWCA Crim 575Case No 201200394 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
CHRISTOPHER CLARKE J
T20117395
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 28 th March 2014
Before
LORD JUSTICE DAVISMR JUSTICE JEREMY BAKERTHE RECORDER OF STAFFORD – HHJ TONKING(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
IAN GARTH WORKMANAppellantTHE CROWNRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR I WINTER QC (instructed by BCL Burton Copeland) for Appellant.MISS L BLACKWELL QC (instructed by Crown Prosecution Service) for Respondent.Hearing Hearing dates: 6 & 7 March 2014
JudgmentLord Justice Davis :Introduction
[1]This is an appeal against a conviction for murder. A number of grounds for appeal were originally advanced but are now (by reason of limited leave granted by the Full Court) confined to, in effect, two. The first is that the conviction is unsafe in the light of fresh expert evidence sought to be adduced by the appellant. The second is that the trial judge was wrong not to leave a defence of loss of control to the jury. In addition, there is a renewed application for leave to appeal against sentence.[2]The appellant was represented before us by Mr Ian Winter QC. Neither Mr Winter nor those instructing him represented the appellant at trial (on the contrary, part of the appellant’s case involves criticism of his legal team below). The Crown was represented before us by Miss Louise Blackwell QC, who also appeared at the trial.

Background facts

[3]The trial took place before Mr Justice Christopher Clarke and a jury at Preston Crown Court. On 19 December 2011 the appellant was convicted by unanimous verdict of the jury. He was sentenced to life imprisonment with a specified minimum term of 17½ years, less time spent on remand in custody.[4]The defence at trial was privately funded. The appellant had a very experienced legal team acting for him: Mr Alistair Webster QC, leading Mr Dominic Nolan, instructed by Pannone LLP (albeit that firm had not been instructed at the outset of the criminal proceedings).[5]The appellant had been married to Mrs Susan Workman for some 35 years. They had three sons. Towards the end the marriage became fractured. The appellant had had a successful business career; and latterly he started spending a considerable amount of time in Gibraltar, for business and tax reasons. She continued to live at the matrimonial home Nursery Old Farm, Turton, Lancashire, from which he moved out. He kept various items and some clothes there and had retained house keys, and in fact also had a residence nearby. On 17 February 2010 she presented a divorce petition, which included a claim for ancillary relief and a lump sum.[6]The proceedings were acrimonious, drawn out and costly. The majority of the assets were either in the sole name of the appellant or in the name of companies he controlled. The picture painted in the proceedings was that she was something of a home bird, whose main interest was in domestic matters: he was said to be the dominant and controlling figure. However, there was no suggestion at all of any physical violence, actual or threatened, by him at any time during the marriage. Part of her claim was to the effect that he had assets hidden abroad: and in fact she obtained a freezing order against him, which he found unduly restrictive and which he particularly resented: as also he resented the level of costs the dispute was generating and, as he saw it, her unreasonable refusal to reach a compromise. Pannone acted for him in the divorce proceedings. A good deal of evidence relating to the divorce proceedings was in due course placed before the jury.[7]On occasion, the appellant would visit the farmhouse to collect mail and other items: something his wife did not appear to have liked. There was at all events no dispute that the appellant arrived at the farmhouse shortly after 1 p.m. on 7 April 2011. He had gone to collect some lighter clothes. He parked his car outside the gate and tapped on the window (she having locked the door and left her keys on the inside of the door). It seems that she had that morning been accessing the internet on her computer, sitting at the far end of the kitchen beyond the kitchen island. She also kept entries in the nature of a diary on her computer and there is, as we will come on to explain, an entry for that date which starts: “Ian has come home at 13.17”: which is consistent with that indeed being the approximate time of his arrival. The computer itself, on the agreed evidence given at trial, went into sleep mode at 13.31.14.[8]According to the appellant, his wife had let him in. He went past her into the kitchen and upstairs to the main bedroom where he found the clothes he needed. He came downstairs, then realised he had left some shoes upstairs, returned to get them and came back downstairs carrying the clothing and shoes. He went out to the garage with all these clothes (and some post which he had also collected). He then remembered that he had intended to look for a pocket watch in one of his suits and returned once more. He was irritated to find that she had locked the kitchen door behind him; and there was an argument in which she was standing at the far end of the kitchen. In the course of it he criticised her treatment of their eldest son.[9]He then went upstairs for the third time. When he came down, she was standing towards the near end of the kitchen. He said to her that if she carried on like this (meaning the litigation) there would be nothing left for anyone. According to him, she exploded in anger and shouted and swore at him. At trial, he was to say that he had not been speaking to her in an angry tone but she in effect went mad. He had never known her to be angry like that before. She had a knife which he thought she picked up from the top of a unit and she came at him with it. He dropped the clothes he was carrying and made to disarm her, he having some martial arts experience. He tried to get behind her and did so, with his left arm around her neck and his right arm having hold of her arm and/or wrist holding the knife (she was right-handed). In the course of the struggle, he was pushed back against the Aga stove which caused him to let go of her arm and wrist. The next thing he recalled was her making a sharp inhalation noise, going limp and falling to her knees. The knife fell to the floor and she then fell face down to the floor. He was to say that he did not see how the knife had entered her body or how it had become detached from her body.[10]At 13.41 he made a 999 call to the emergency services. In it he said, among other things, that his wife had attacked him with a knife:
“My wife came at me with a knife and there’s been a fight and she’s got stabbed in the chest”
. On instruction over the telephone, he turned her on to her back and attempted resuscitation, but to no avail. When the emergency services arrived, the knife was found a short distance from the body: a kitchen knife with a 19.8 cm blade, serrated on one side. Her glasses were found on a unit at the near end and other items (bag, papers and so on) were nearby on the floor at that end. So were the clothes which the appellant said he had dropped. Her blood was smeared on the handle and on one side of the blade: the other side was clean (it was said that it had been licked by the family dog). Her right hand was heavily smeared with her own blood and there was also blood on her left hand and elsewhere. She was formally pronounced dead at 14.42.[11]The appellant had linear abrasions on the inside of his left forearm and superficial cuts to his stomach. He had no blood on his own hands at the time the emergency services arrived. It was in due course accepted that there was no evidence of the cleaning up of any exhibits.[12]Mrs Workman’s computer was also found on the floor at the near end of the kitchen island – that is, the opposite end of the kitchen island at which she usually sat to work on her computer. When it was subsequently examined, it contained this particular entry (properly admitted into evidence at trial):
“Ian has come home at 13.17 shouting and saying I’ll pay for what Im doing to him – I’ll not win he’s upstairs now taking I don’t know what but hopefully I’ll see when he comes down stairs… seems to be his clothes jumpers etc strokes the dog and leaves then screaming and saying that I cant lock the doors I said I can when Im on my own he said he can come in this house any time he wants to, ‘Shut your fucking face you bitch’! You’re a fucking disgrace, doing this and treating your eldest like this your fucking pathetic bitch!! Standing staring at me acro”
Standing staring at me acro”[13]It was not possible to tell precisely when this was typed, although a file had been opened entitled “Sue’s memories.wps” into which this record had at some stage been typed. The file was last saved at 13.30.52; and the computer itself had gone into sleep mode. According to the agreed expert evidence at trial, it was not possible to tell whether the entry had been saved manually or automatically or whether the computer had been placed into sleep mode manually or automatically.[14]The appellant was arrested. He was described as being distraught. He was interviewed under caution in the presence of a solicitor the following day. He gave an account in effect broadly consistent with what he was to say in evidence at trial.[15]At further interview the appellant said that he wanted to give a demonstration, recorded and filmed, of the manner in which the struggle had taken place. Arrangements were made, with a female police officer (of very approximately similar size to Mrs Workman) acting the part of Mrs Workman and using a ruler instead of a knife. The appellant demonstrated in a kind of slow motion what he said had happened – giving at the same time something of a running commentary – and then repeated it, with the filming taken at a different angle. At trial, the judge in his summing-up went through the interviews with care and also replayed the DVD of the demonstration.[16]The evidence was to be that the knife entered the body to a depth of 12 cms. It had entered the left chest cavity, at an angle from right to left, from front to back. The direction of the wound was approximately horizontal. It cut the fourth costal cartilage and penetrated the pericardium, cutting the right ventricle of the heart, severing the left descending coronary artery and entering the left lung. The pericardial sac was found to contain 125 millilitres of clotted blood; there were 2.5 litres of blood and fluid in the left pleural cavity. There had been a single stab wound.[17]The prosecution case was that the appellant had deliberately stabbed his wife as a result of a row because she was defying him – he either stabbing her himself or deliberately guiding her own hand with the knife into her body. It was said that the minor injuries on him had been self-inflicted, in order to deflect responsibility. The defence case was accident in the course of self-defence. At no stage had the appellant taken hold of the knife himself: he was trying to restrain her, she holding the knife, when he lost his grip on her wrist or arm, the knife thereby – his resisting force being removed – entering her body by accident. Emphasis was, among other things, also placed on the injuries on him and on blood found on her right hand when none was found on his.

The expert evidence

[18]Given these scenarios, clearly it was necessary to consider how the knife had entered the body.[19]The Crown adduced evidence from a very experienced Home Office pathologist, Dr Carter, who had conducted the post-mortem. She has considerable experience of stab wound cases. Her evidence was, in summary, as set out in paragraph 16 above. It was also noted by Dr Carter that, in addition to the fatal wound, Mrs Workman had suffered abrasions to the side of her chin, bruising on the inner surface of her left arm and scratch abrasions over the vertebrae at the back of her neck, as well as a bruise to the sternomastoid muscle. It was confirmed by Dr Carter that these latter injuries could be consistent with the application of an armlock to the neck. Dr Carter said that the stab caused catastrophic internal blood loss: this would not necessarily have caused Mrs Workman to collapse immediately (although it might have done): but she would in any event have collapsed within a few minutes. Dr Carter at trial described the degree of force needed to cut through the cartilage and penetrate through to the lung as at least “moderate to severe” (on a scale of mild, moderate, severe).[20]Dr Carter was asked to consider the mechanism demonstrated at the police station by the appellant. Her opinion was that Mrs Workman stabbing herself by these means was “very unlikely” (Mr Webster QC had objected to her, as a pathologist, expressing an opinion on that but the judge held against him on that point). Dr Carter gave a number of reasons for that: that there was only one stab wound; that the knife had gone through cartilage, connoting significant force; and that the knife had gone in horizontally. Thus she thought it very unlikely that Mrs Workman had accidentally stabbed herself by the indicated mechanism. However she did not rule that out as impossible: “not by any means”, as the judge recorded her as saying when he summed up her evidence to the jury. In cross-examination she accepted that if there was a sudden letting go of a restraining hand, the person pulling away could have been applying quite a degree of force: further, it was difficult to say how quickly the brain could react but one was talking in fractions of seconds. She also had reported on, and was questioned about, the injuries found on the appellant himself.[21]It is now known that Pannone had themselves obtained a report from Professor Busuttil. We will come on to that shortly. Further, the solicitors previously acting for the appellant had requested Dr Richard Shepherd, a pathologist, to attend a second post-mortem (with Dr Carter); and he had provided a report to the defence team, which this court has also seen. But no evidence from Professor Busuttil, or any other pathologist, was adduced in support of the defence case at trial. The expert evidence on this aspect of the case adduced at trial on behalf of the defence was from Dr Garbutt, an experienced forensic physician and medical doctor who had previously worked for some years under contract for the Avon and Somerset Constabulary for medical forensic services. He had considerable experience of stabbing cases.[22]Dr Garbutt gave an amount of evidence about the injuries to the appellant. As to the injuries to Mrs Workman, he considered, as the judge set out in his summing-up, that there were three possible scenarios (as also addressed by Dr Carter): the first, stabbing by the appellant standing face to face with Mrs Workman; the second, where the appellant was behind Mrs Workman and deliberately drove the knife into her; the third was by reference to the scenario demonstrated by the appellant in interview. Dr Garbutt said that, according to that scenario, Mrs Workman was trying to gain control of her right hand with the knife in it and “would be using the most force to pull away”. He said that it was “quite possible” that the appellant momentarily lost his grip and she would continue to pull her arm away before realising what was happening and “it was possible that the knife could go into her chest from the force and momentum generated by her attempting to pull the knife away in circumstances where she did not have the time to release or reduce the force”. The track of the wound was not inconsistent with this scenario: and it was “a realistic possibility”. He said that all three scenarios were possible, although he thought the one in which the appellant faced Mrs Workman and plunged the knife into her chest was less likely than the other two. Dr Garbutt had also stated in his detailed written report that the “number of variables in this dynamic situation makes confident interpretation of comparative movements particularly difficult”.[23]There was, in addition, expert evidence from Dr Edwards (a pathologist called by the Crown); the agreed expert evidence relating to the computer, to the effect summarised above; and an amount of oral evidence, including, of course, that of the appellant himself.

The summing-up

[24]No criticism is now made of the fairness or accuracy of the summing-up. We have carefully read, and re-read, it ourselves. It is scrupulously fair and balanced, it is thorough and it identifies – by reference to the evidence adduced at trial – the relevant issues and competing cases on those issues.[25]The one complaint now pursued as to the summing-up is that the judge failed to leave loss of control to the jury. We simply note at this stage that no-one had asked the judge to leave that as a defence, notwithstanding that he had proffered his proposed legal directions in writing in advance of speeches and there was the usual discussion between judge and counsel at that stage. The inference is that it had not occurred either to the judge or to counsel that loss of control should be left to the jury: albeit it would have been known by all concerned that there can be occasions when such a defence, as with provocation before it, is required to be left to a jury even though it has never positively been advanced as part of the defence case.

The proposed new evidence

[26]The proposed fresh evidence is of two kinds.

(a) Computer evidence

[27]The first kind relates to expert computer evidence. It will be recalled that it was agreed evidence at trial, based on the expert reports obtained by both prosecution and defence, that it could not be determined precisely when the partly concluded entry on the computer had been made; it was said that there was “no way of telling” whether the document had been saved by Mrs Workman or by the computer automatically. It is an indication of the care and thoroughness with which the appellant’s new legal team have approached this appeal that even that agreed evidence has been rechecked. The consequence is that such agreed computer evidence has been shown in this respect to be wrong: as is accepted by the Crown. It does not matter how the mistake was made; the point is that there was a mistake. For the subsequently obtained report of Mr Glenn Siddall demonstrates that, contrary to the previously agreed expert computer evidence, Mrs Workman’s computer in fact had no functioning automatic save function (or equivalent). Accordingly, the inference is that the entry in question was manually saved.[28]It is said on behalf of the appellant that this is inconsistent with one way the prosecution had put the case. The prosecution had suggested that the typing had finished at the word “acro[ss]” because Mrs Workman had been assaulted whilst still typing. It is now submitted that this new evidence is entirely consistent with Mrs Workman having stopped typing of her own volition; saving the entries; closing the computer; and moving herself and it to the near end of the island along with other items. This is consistent also, it is said, with her glasses being found on a unit at the near end of the kitchen. That overall would then be entirely consistent with the appellant’s evidence: which was to the effect that the entire struggle had taken place at the near end of the kitchen. It would also rebut what was said to be the potentially dramatic and prejudicial impact on the jury of the typing being cut short in mid sentence as being attributable to a sudden assault; would reduce the time available to the appellant to arrange matters to his advantage, as was the prosecution case, before he dialled 999 at 13.41; and would further be consistent with Mrs Workman being able to pick up a knife at the near end of the kitchen.

(b) Medical evidence

[29]This fresh computer evidence is linked to fresh medical evidence obtained since trial by the appellant’s legal team, in the form of a report from Mr Shyam Kolvekar, a consultant cardiothoracic surgeon. This is to the effect, putting it summarily, that the depth of penetration of the knife, coupled with amount of the blood and fluid loss, would have caused instantaneous death and collapse on removal of the knife. It is said that the evidence of Dr Carter at trial, to the effect that Mrs Workman may not necessarily have collapsed immediately after the stab wound was inflicted, was thereby controverted. On that basis, that would preclude, it is said, the possibility that the wound was caused at the far end of the kitchen, close to where she had previously been typing: just because the body (and knife) were found at the near end of the kitchen.

(c) Biomechanics evidence

[30]Fresh evidence from two experts in biomechanics, Dr Lane and Professor Fowler, is sought to be adduced on this appeal. Dr Carter, from the perspective of an expert pathologist, had at trial expressed her opinion that the recoiling effect of the release of Mrs Workman’s arm, with her right hand holding the knife, was very unlikely to have been such as to explain the force required for the knife to penetrate the chest, heart and lung as it did. It is said that these latest reports, from a scientific biomechanical perspective – no such specialist evidence having been adduced at trial – controvert the reasoning of Dr Carter and her statement that the scenario postulated by the appellant was “very unlikely”. It is said by Mr Winter that such expert evidence would or could in turn have had an impact on the assessment of the credibility and reliability of the appellant’s own evidence – a critical issue at trial.[31]Dr Lane works in the School of Health Sciences at Queen Margaret University, Edinburgh. She was provided with the report and evidence of Dr Carter, the report and evidence of Dr Garbutt, transcripts of the appellant’s evidence and the DVD of the reconstruction in interview.[32]Dr Lane first prepared a biomechanical model, based on certain assumed anthropometric data, but using Mrs Workman’s height (1.62 metres: 5’4”) and weight (87.54 kgs: 13 stone 11 pounds). The very elaborate kinetic force calculations following, including estimation of distance of knife travel and energy of the knife following release, resulted in a conclusion in these terms:
“Therefore, in conclusion, based on the data from this biomechanical model, it is highly possible that the sudden release of the arm could have caused the knife to penetrate the victim’s chest, before she had a chance to react. The energy created by the sudden release of the arm could certainly have been sufficient to penetrate skin and costal cartilage.”
[33]Dr Lane then sought to create a reconstruction, using volunteers, in the university’s motion analysis laboratory. (She told us that this was the first experiment of this particular kind she had undertaken). She based herself on the “situation described by the defendant”, including the DVD. She included an estimation of reaction times in her experimentation. Her conclusion from this was expressed as follows:
“In summary, although the victim’s actual reaction times cannot be known, from this data it can be concluded that it is highly possible that the victim would not have had time to react to the sudden release of the knife, before the knife penetrated the chest. Furthermore, the energy at contact would have been sufficient to penetrate the skin and costal cartilage.”
[34]She also prepared an Addendum Report. She, among other things, acknowledged limitations to such models as used by her. She noted that “it is not possible to determine the accuracy of the data as applied to the victim” but stated that the model was only intended to show if it was possible for the victim accidentally to have stabbed herself following the release of her arm during the struggle. She also commented further on her experiments. She maintained the opinion that the mechanism of injury described by the appellant was highly possible.[35]Professor Fowler, of Manchester Metropolitan University, undertook two separate experiments, using volunteers, relating to maximum pushing and pulling force and to movement analysis of the auto-release response. He too said he had not previously undertaken experiments of this precise type. He had not previously himself studied auto-release mechanisms in stabbing cases. He further explained to us that he had been provided with a transcript of Dr Carter’s evidence and the DVD of the reconstruction by the appellant in interview. He acknowledged certain experimental limitations. He acknowledged that the experimentation was solely in the horizontal plane and that it did not involve interaction between two individuals. But his conclusion on the first experiment was that the likely force produced by auto-release was significantly greater than that possible by a resisted movement. His conclusion on the second experiment was that the auto-recoil mechanism produced a significant displacement of the hand such as to result in sufficient movement to create the injuries. Further, the speed of movement would be such as for it to be most unlikely for the individual to be able to respond by dropping the knife or otherwise.[36]He was overall prepared to say in his report that, as compared to a “forced stabbing movement against her resistance” the “auto-release mechanism described by Mr Workman was the more probable of the two mechanisms considered”. At a later stage he opined that there was “clear support” that “the movement pattern and injury mechanism described by Mr Workman is not only possible but highly probable”.[37]He maintained his conclusions in an Addendum Report. He did not seek to address the issue of how the knife came to be removed or displaced from Mrs Workman after entry.[38]In response the Crown submitted a report of Dr Jones of the Institute of Medical Engineering and Medical Physics at Cardiff University. He has great experience in the field of biomechanics of injury (including stabbings).[39]Somewhat in contrast to Dr Lane and Professor Fowler, Dr Jones noted in detail in his report the qualifications and uncertainties in the explanations variously given by the appellant as to just what had happened. Dr Jones further explained in oral evidence that it is difficult to achieve in practice (at least in the absence of CCTV evidence of the actual incident) recreating the motions involved at their actual speed. He emphasised the problems of “trying to retrospectively interpret a dynamic scenario”. He explained further to us that a biometric assessment would involve ascertaining the relative motions of both persons involved in the struggle (which here were uncertain) and would include other factors such as the sharpness of the knife used and clothing worn. Dealing with the reports of Dr Lane and Professor Fowler he said:
“In the context of a dynamic and fluid struggle such as the one alleged in this case, however, biometrics is largely unsuitable as it cannot, with any reliability, claim to have considered/measured/simulated the exact mechanism, because it remains an unknown.”
He thus said that their approach involved taking a “snapshot” of what in reality was a very dynamic and fluid series of events, and for which a significant number of assumptions (as to mass, length, force, velocity and so on) had to be applied.[40]As to Professor Fowler’s report, Dr Jones noted that Professor Fowler had considered the dynamic response of limbs. Dr Jones agreed that the auto-release scenario must be considered at least a possible mechanism of the injury. But he noted a number of assumptions and limitations inherent in Professor Fowler’s study. His view, in summary, was that for each of the studies undertaken by Dr Lane and Professor Fowler as a snapshot approach it was “sufficient for an academic biomechanical analysis, however it is incapable of effectively characterising a violent, dynamic and fluid scenario of the type alleged in this case”.[41]Dr Carter also put in a supplemental report for the purpose of this appeal. Aside from her comments on Mr Kolvekar’s report, she made clear that she claimed no specialist biomechanical expertise. From her experience and perspective as a pathologist, however, she clearly was profoundly sceptical as to the utility of that discipline in the case of a violent struggle, involving a stab wound, such as occurred in the present case. In oral evidence before us, she firmly stated that she did not depart from her previous opinion given at trial, and her reasons for that opinion, having now read and heard the biomechanical evidence.[42]We received the evidence contained in these reports from the experts in biomechanics, and heard oral evidence from them before us, in the first instance de bene esse. No issue before us arises about the admissibility of the evidence of Mr Siddall and Mr Kolvekar, since the Full Court on the previous occasion gave leave for that evidence to be adduced on behalf of the appellant. Whether the reports of Dr Lane and Professor Fowler should be admitted, however, is very much in issue.

Waiver of privilege

[43]The Full Court, in granting leave to appeal on these particular grounds, made clear that the court could not give leave to adduce this proposed fresh evidence on biomechanics “on the nod”. It indicated that the appellant would be required to waive privilege and that the Registrar should seek the explanation of trial counsel and solicitors upon these grounds and upon the material sought to be advanced. The Full Court indicated that, that being done, it anticipated that “the Full Court will hear the evidence and having done so will decide whether to admit it on the grounds that it found a ground of appeal”. That is precisely the course we adopted.[44]The views of trial counsel (Mr Webster QC) and trial solicitors (Pannone) have thus been sought. Their response is contained in a Joint Response by David Cook, a partner in Pannone having conduct of the case, and Mr Webster. This was supplied on 21 January 2014.[45]It is there explained that, although the appellant had been complimentary about the efforts and performance of the defence team during the trial, the position changed thereafter. Pannone, indeed, had to commence civil proceedings against the appellant to recover the (very substantial) sums owing to them as the balance of their fees: and we were told that they also exercised a lien over the papers held by them. This court has in addition been provided with a witness statement by Mr Cook dated 19 June 2013 filed for the purpose of a summary judgment application made by Pannone in those civil proceedings. It seems that the appellant had after the trial been very critical of Pannone and indeed had counterclaimed for £15 million for the ruination of his career and reputation by reason of his conviction. The impression given by the very lengthy witness statement of Mr Cook (we have not seen the appellant’s in answer) possibly indicates a viewpoint that the appellant, as a businessman, had committed himself to paying a great deal of money for his defence and that, as he saw it, it had been the job of his defence lawyers to get him off. Mr Cook, at all events, rebutted in some detail the various criticisms which had been made by the appellant. We were told that summary judgment in favour of Pannone was granted and the counterclaim was struck out.[46]It is clear from the Joint Response that the whole issue of biomechanics had in fact been very carefully considered by the defence team before trial. To say, as the grounds of appeal originally had said, that the issue was “wholly missed” has been shown to be plain wrong. Indeed, Miss Blackwell told us that the question of possibly adducing expert biomechanics evidence had been raised by the defence at various interlocutory hearings before trial: and the Crown had been pressing for such evidence (if to be relied on) to be served in sufficient time to enable the Crown to put in its own expert evidence in response. In the event, none was served.[47]Mr Cook and Mr Webster explain the position in detail. They noted that there had been obtained the evidence of Dr Garbutt, who had considerable expertise in stab wounds (and not confined to the pathological perspective) and who was in a position to state an opinion that, with regard to the mechanism of the stab wound infliction, the Crown’s pathological evidence was misjudged and not in accordance with the evidence: and that the scenario advanced by the appellant was a realistic one. It was considered by the defence team that his report was “extremely useful” to the defence case. Dr Garbutt, of course, as we have said, gave evidence for the defence at trial.[48]The defence team had in advance of trial also, as it transpires from the Joint Response, obtained a pathological report from Professor Busuttil, a distinguished and experienced forensic medical examiner and a professor of applied pathology. On this fact being identified, the Crown had pressed the appellant’s current legal team for its production for the purposes of this appeal: his report only emerged, for whatever reason, on the first day of the hearing before us, on this court’s enquiry. It transpires that that report was, in all material respects, entirely consistent with Dr Carter’s reports. It did not lend any support to the appellant’s account. Professor Busuttil had been provided with, among other things, the transcript of the interviews and the DVD of the appellant’s demonstration. He considered that demonstrated scenario (among others). He described it as a “possibility” but “there are gaps and inconsistencies in it which make it difficult to accept at face value…thus on the information available it is NOT the most likely possibility for the infliction of the fatal injury on the decedent”. In a detailed addendum, he addressed at some length “biomechanical factors” for stabbing, citing expert literature in this regard. In a letter to Pannone accompanying the report and addendum, he made clear that “each altercation is different”. He expressed no disagreement with Dr Carter’s report, saying that she had correctly and appropriately addressed the scenarios put to her. He restated his view that for the reasons given “Mr Workman’s account of the incident is a possibility and no more, and certainly not a probability or the more likely scenario”. He emphasised also the number of variables involved.[49]The evidence of Professor Busuttil was thus, wholly understandably, never deployed at trial. It was, of course, not before us as evidence: but its existence, and contents, plainly would have had to be borne in mind by the defence legal team as indicative of the potential problems.[50]The report of Dr Richard Shepherd was also produced to us at the appeal hearing. That, too, was consistent with Dr Carter’s report. Dr Shepherd had been shown the DVD of the appellant’s demonstration. As to that he said (with obvious force):
“I cannot equate the horizontal stab wound with the demonstration given by Ian Workman on the DVD that I have seen….the actions demonstrated and described [on the DVD] do not adequately explain the pathological features that were identified”
. That report also, and again wholly unsurprisingly, was not deployed by the defence at trial.[51]The defence team, as the Joint Response explains, had in addition sought to obtain expert evidence relating to the sharpness of the knife blade and the degree of force required. This was provided by Professor Sarah Hainsworth in advance of trial. She is a Professor of Advanced Engineering at Leicester University. She gave a detailed description of the knife, its sharpness and the degree of force needed to achieve the penetration that occurred. She undertook certain exercises for this purpose. She agreed with Dr Carter, whose report she had seen, that to create the injury “would have required a severe force” (although in the event, in her evidence at trial, Dr Carter modified that to “moderate to severe”). She agreed with Dr Carter that it would have been possible for the appellant to direct the knife so as to penetrate Mrs Workman’s chest and also agreed that “the knife could have been stabbed [sic] with Mr Workman standing in front of his wife”. This report, overall, was not helpful to the defence case, either. Again understandably, Professor Hainsworth was not called by the defence.[52]The concluding paragraph of Professor Hainsworth’s report, it may be noted, reads as follows:
“If it were possible for Mr Workman to orient the knife from behind in such a way as to penetrate the chest of Mrs Workman, it would be theoretically possible for Mrs Workman to accidentally stab herself with the knife in this orientation. Whether this is plausible I am unable to judge without additional work. Someone in a melee with a knife might more likely be trying to direct the knife away from themselves rather than towards their body. Furthermore, if Mrs Workman were able to pull her arm away from her husband (which itself depends on their relative strengths) I am unsure that she would generate sufficient force to stab herself to the depth observed. I am unable to provide a more definitive conclusion.”
[53]It may also be noted that the footnotes to Professor Hainsworth’s report included reference to various specialist publications and articles on the biomechanics or dynamics of stab wounds.[54]The defence team had not, however, rested there. They latterly had proposed to put in evidence of Mr Evans, a medical illustration practitioner, exhibiting 3D images of the injuries and outlining the possible positions of the appellant and his wife and mechanism of the stabbing by reference to the post-mortem findings. Such illustrations were, it transpired, in part based on reports obtained from Dr Stoddart, a senior lecturer in pathology, and Dr Gouldsborough, a senior lecturer in anatomy, notwithstanding that the reports of those two had not been produced by the defence in evidence. The illustrations of Mr Evans were also shown, as was pointed out in discussions, to have had some basic vitiating errors. In the result, the defence did not seek ultimately to adduce this evidence at trial.[55]As the Joint Response explains, Pannone had in addition prior to trial approached a number of biomechanical experts, both national and international. There were nine of them, whom they named. For various reasons (not all of which were made apparent) none of them could or did assist. The appellant’s present solicitors followed this up after receipt of the Joint Response and sought to contact all of the named experts as to why they could not assist or had not assisted. This is detailed in a witness statement since filed by the solicitor involved. The answers of those experts were not in all respects specific and sometimes were non-committal. Some, it appears, had not been interested in giving, or prepared to give, evidence. One, at the University of Chichester, said that he thought that the original approach was “speculative” and in any event that his expertise in sports biomechanics was not applicable, and so he had not even responded. Another, from the School of Mechanical and Systems Engineering at Newcastle University, said that his department had not been prepared to take the matter on because (as they had told Pannone) “this could be a difficult and uncertain analysis and thus very difficult to defend in court”. It was said by him that “all results would be likely to be qualified with a limited degree of confidence”: hence he could not assist.[56]The overall position of Mr Cook and Mr Webster was explained in their Joint Response as follows:
“12. Pannone LLP identified that there appeared to be significant issues with the reliability of any such evidence; specifically that both the Crown and defence case agreed that the movement of Mr Workman and Mrs Workman was extremely dynamic and, in fact, there did not appear to be any certainty whatsoever of the position of either party or their limbs (by themselves or in relation to each other) or, indeed, how strongly either party was pushing or pulling on the knife. In these circumstances, it was felt that any calculations of force based on such an inexact dataset would necessarily lead to imprecise results. 13. It was also felt that issues arose as a result of the findings of Prof Hainsworth; namely that the knife used to inflict the fatal wound was moderately sharp across its edge but not very sharp at its tip and would have needed a severe force to cause the wound to Mrs Workman. 14. It was therefore felt that Dr Garbutt presented the best available evidence in this regard. Part of Dr Garbutt’s opinion was that there were three possible mechanisms of the infliction of the injuries. He stated that “deliberate causation from the front or back [was] less likely than accidental causation as proposed, discussed and supported”
. Importantly, he went on to state that “the number of variables in this dynamic situation makes confident interpretation of comparative movements particularly difficult”. 15. In the light of Dr Garbutt’s comments, and our stance in relation to the limitations of expertise based upon them, it would have seemed intellectually dishonest, as well as a clearly flawed argument to ventilate in front of a jury, to have Dr Garbutt state that this was a dynamic situation and impossible accurately to predict what had happened and to then ourselves call evidence claiming accurately to predict what happened. Similarly, analysis of the sharpness of the knife had not assisted the defence and biomechanical force calculations, based on the enquiries that we had pursued, appeared to be beset by problems.”[57]It has since been confirmed by Mr Cook that no “formal instructions” were given to any biomechanical experts and no formal reports were obtained from such experts.[58]It is stated, and is not disputed, that the appellant is an articulate and persistent man, who had required explanation and discussion at every stage of the case. It is the plain inference – and not controverted before us – that the appellant concurred in the decision not further to seek to obtain or call biomechanical or other such expert evidence at trial on this aspect of the case, but to rely on that of Dr Garbutt.

The law on new evidence

[59]The key to a decision as to whether or not fresh evidence should be allowed to be adduced on a criminal appeal in the Court of Appeal rests on the interests of justice. That is made explicit in s.23 of the Criminal Appeal Act 1968. There are two primary balancing considerations. It is not the system under the law of England and Wales that parties can wait and see if they are convicted at trial and then, if they are, seek to adduce further evidence which could have been adduced at trial but was not. It is thus their responsibility to put their best case at trial. An unrestricted lenience in this regard would render the criminal justice system virtually inoperable. The countervailing consideration, of course, is that a wrongful conviction is abhorrent.[60]Section 23 in the relevant respects provides as follows:
“23 Evidence. E+W (1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice— (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to— (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. ….”
It is well established that failure to satisfy any (or some) of those requirements does not, of itself, necessitate refusal of leave to adduce fresh evidence: although of course such failure may do so. Ultimately – and although this is trite, it needs to be emphasised here – all depends on the particular circumstances of the particular case.

E+W

[61]A number of authorities were cited to us in this context. But we do not think a detailed exegesis is needed, since the general approach is familiar. A convenient starting point remains the case of Pendleton [2002] 1 WLR 72, [2001] UKHL 66. The position is helpfully summarised by Lord Brown, on the premise that fresh evidence is admitted, in Dial v State of Trinidad and Tobago [2005] 1 WLR 1660, [2005] UKPC 4:
“31. In the Board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view "by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict": R v Pendleton [2002] 1 WLR 72 , 83, para 19. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford's case [1974] AC 878, 906, and affirmed by the House in R v Pendleton: ‘While ... the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].’ He went on to cite the observations of Judge LJ in Hakala [2002] EWCA Crim 730 in the course of paragraph 32: “However the safety of the appellant's conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe.”
[62]The provisions of s.23 apply likewise to the proposed admission of expert evidence. General considerations applicable to the required approach are helpfully summarised in the decision of a constitution of this court in Chattoo [2012] EWCA Crim 190 at paragraphs 69 to 71.[63]In Steven Jones [1997] 1 CAR 86 it had been pointed out that expert witnesses are interchangeable in a way in which factual witnesses are not. In that case, as it happened, the fresh expert evidence nevertheless was admitted; albeit the appeal was in the event dismissed. A recent, striking, example of a case where fresh expert evidence was admitted – and the appeal then being allowed – is to be found in the Privy Council decision in Lundy v R [2013] UKPC 28. In that case, much of the expert evidence was, it seems, in fact known to trial counsel, but the (wrong) decision was taken not to adduce it. Mr Winter placed reliance, in particular, on paragraphs 120 and 121 of the decision. In paragraph 121, Lord Kerr in fact suggested that the requirement that evidence be “fresh” can be of less critical importance in cases involving scientific evidence. That case also emphasised, however, the importance of recognising the need to hold the balance between the “one trial” principle and the interests of justice: see paragraph 128.

Disposition

[64]Against that background we turn to the disposal of the present appeal. The fresh evidence points are comprehended in Grounds 3, 4 and 5 of the appeal.

(a) Computer evidence and (b) Medical evidence

[65]We were unimpressed by the reliance on the (agreed) evidence of Mr Siddall and on the evidence of Mr Kolvekar. It is not at all because this evidence was not reliable or not worthy of belief: to the contrary. It is because, in our view, in substance it takes matters nowhere. Mr Siddall’s evidence, it is true, shows that the agreed facts presented at trial concerning the computer were in this respect wrong. It thus would tend to support the case that Mrs Workman was indeed, at the time of the struggle, at the near end of the kitchen. But the Crown’s case was never necessarily predicated on the asserted fact that she was at the far end of the kitchen when the struggle took place or when her typing at the computer came to an abrupt end: indeed, Miss Blackwell’s closing speech to the jury, a transcript of which we have seen, makes that entirely clear and she also addresses the position on the basis that the struggle was at the near end. Likewise, Mr Kolvekar’s evidence is, in our view, ultimately not really of significance. In the course of his oral evidence before us, he in fact modified his stance somewhat by no longer maintaining that death and collapse would have been “instantaneous” but instead saying that it would have been “within a few seconds”. Dr Carter, for her part, continued to maintain in her oral evidence before us that sometimes, in such a situation, collapse can indeed take place within minutes rather than seconds and some movement in the interim is possible (citing a specific example from her experience for that purpose): albeit our distinct impression was that, as Mr Kolvekar said, it would almost always, with such catastrophic penetration as this, be very swift indeed on withdrawal of the knife and very often instantaneous collapse will be involved. But the bottom end of the kitchen was a very short way from the top end: so some movement after stabbing could not be ruled out as a possibility. The point is, either way, inconclusive. Moreover there was in any event an amount of other evidence at trial – the location of the computer as found, Mrs Workman’s glasses and so on – to support the appellant’s account that the struggle had indeed been at the near end of the kitchen. Further, a scene investigator (Mr Hignett) who attended the scene later that afternoon said in evidence that there was no evidence of injury taking place anywhere other than close to where Mrs Workman was found.[66]In any case, the matter is effectively disposed of by the judge’s careful summing-up on this point. He dealt in detail with the location of the computer and when it was shut and went into sleep mode, and the location of the glasses and of the other items (Mrs Workman’s bag, papers and so on) found on the floor at the top of the kitchen. In dealing with the termination of the entry ending in the word “acro[ss]” the judge invited the jury carefully to consider the sequence. He fully recounted the defence case and evidence to the effect that she had closed the computer and moved it to the top end of the kitchen (with her glasses etc) before the confrontation occurred. He recorded the alternative suggestion that he had attacked her while she was typing. He further added:
“It may be there are other potential explanations”
. He set out the competing possibilities at page 20G-H and again 39G to page 41H of the summing-up.[67]In our view, the appellant’s case is seriously overstated in this regard. Mr Winter suggested that there was “irredeemable prejudice” to the defence case by the notion of Mrs Workman being attacked while she was at her computer and not even able to complete typing the word “across”. But the Crown, as we have said, had never committed itself to that scenario (indeed, one of the original complaints of the appellant, for which leave to appeal was refused, was that the Crown had never sufficiently identified its case in a number of respects) and it had not been ultimately put forward as anything more than one possibility.[68]This particular fresh evidence does not, taken of itself, begin to show that the conviction was unsafe.

(c) Biomechanical evidence

[69]We were, on consideration, also not impressed by the proposed fresh evidence sought to be adduced by the appellant on biomechanics. Again, this is not because the witnesses concerned were not capable of belief: to the contrary, they were eminently well-qualified and capable of belief. But we have decided not to give leave to adduce this evidence: although we would state that, even had we decided to admit it, our view would still have been that this conviction was safe. Our reasons in essence are as follows.[70]The first point which it is convenient to consider is why this particular fresh evidence was not adduced at trial: see s.23(2)(d).[71]It is simplistic to suggest as an explanation that the trial defence team had not actually identified or contacted Dr Lane and Professor Fowler. The point is that the defence were, prior to trial, well alert to the type of evidence (biomechanics) that might be useful. That had been initially unfruitful in the light of Professor Hainsworth’s report: the decision not to call her being obviously reasonable. The defence solicitors had then made the numerous approaches elsewhere which had, for various reasons, come to nothing and which in a number of respects, for example by the response from Newcastle University, had sounded further warnings: warnings reflecting the warnings given – from a pathological and forensic medicine perspective – by Professor Busuttil and Dr Shepherd. It was, in our view, plainly justified for the defence team to bear all that in mind in deciding whether to continue to enquire any further. Even if an ostensibly favourable biomechanical report could have been obtained from somewhere or other, the risks in its being undermined or demolished (as in effect warned by Professor Hainsworth, Professor Busuttil and, for example, the department of Newcastle University) were there. There were, therefore, potential limitations and downsides in adducing such evidence, if it could be found. In such circumstances, the tactical decision to rely on Dr Garbutt was, in our view, justified and reasonable.[72]Of course, the appellant can say that the fresh evidence now sought to be adduced does not come from a disreputable source. On the contrary, it comes from two experts of accepted biomechanical expertise: Dr Lane of Queen Margaret University, Edinburgh and Professor Fowler of Manchester Metropolitan University. But, as we have said, the defence team, with the concurrence of the appellant himself, had – after making extensive initial enquiries – elected not to pursue further calling any evidence on this scientific discipline. It is most unattractive that, having taken that informed tactical decision and (in the result) there having been a conviction, the appellant now, on appeal against conviction, seeks to adduce evidence of precisely the kind it was previously decided not further to identify or to adduce.[73]That point of itself tells very strongly against the admission of this proposed new expert evidence: section 23(2)(d) is not, in our judgment, satisfied and, given the circumstances of this particular case, we are for this reason alone disinclined to admit it. But in any event there is a further reason, as we see it, for refusing to allow this evidence to be adduced. That is because, as we assess the evidence, it also does not satisfy the provisions of s.23(2)(b).[74]Dr Lane, in her report, explained the procedures which she and her team at the biomechanics department had adopted. First there was the “model” comparison. Since, among other things, this model involved comparators by no means in all respects sharing all the characteristics of Mrs Workman, this was of demonstrably limited – indeed essentially theoretical – value only. Dr Lane more or less accepted that in her evidence to us.[75]The second part of her report related to laboratory experiments as to the degree of force capable of being generated in circumstances of “auto-recoil” on the scenario as described by the appellant – namely that his forceful hold of Mrs Workman’s hand/wrist was loosened in the struggle causing her (with no time for her brain to react) to strike herself with force while still holding the knife. It was at least in considerable part by reference to the reconstruction by the appellant of the incident on DVD, as provided in interview, that the Queen Margaret University team had undertaken its experiment.[76]Dr Lane acknowledged in evidence before us that she had not carried out an experiment of this particular kind before. She acknowledged the existence of limitations. The limitations of the experiment were and are, in our view, plain. They were comprehensively demonstrated by Dr Jones. We found his evidence entirely cogent and persuasive. His evidence was, we repeat, in summary to the effect that biomechanics could not satisfactorily deal with a situation which was wholly “dynamic” or wholly “fluid” or assuming one plane. It might have value, he said, in a case where, for example, a body comes into contact with a static object: for example, a body falling from a height and hitting the ground, or certain other cases. But not, he said, in the case of a forcible struggle between two persons, where the movements and forces actually involved could not be established. There were too many variables and imponderables. That, of course, also accords precisely with what so many other experts had been saying, both from a pathological and forensic medicine viewpoint and as also warned by Professor Hainsworth and by at least one of the responses to Pannone of other biomechanics experts contacted.[77]In our view, these limitations were inherent in the laboratory experimentation that Dr Lane and her team conducted. She had significantly based herself on the movements indicated by the appellant in the reconstruction made in his interview and filmed on DVD. But these movements were wholly uncertain. The appellant himself had repeatedly qualified his descriptions, both then and thereafter. The appellant, for example, had stated at the time – as the prosecution said, quite deliberately in order to keep all his options open – that he could not be sure what had happened. Indeed, by way of example, the stabbing gesture he had indicated in that reconstruction was at a pronounced downward angle, when the agreed pathological evidence showed an approximately horizontal entry of the knife: an obvious difficulty for the defence (as Dr Shepherd had noted). This court has itself seen the DVD. In it, whilst giving the demonstration the appellant variously, for example, says in describing his actions, words to the effect “I don’t know whether I have got it back here, over there or down there or whatever”. He said that he did not know when the stabbing happened or when or how Mrs Workman dropped the knife. He was unable to explain precisely how the knife became disengaged from Mrs Workman. He plainly was surmising as to when she got stabbed (“The next thing I remember…”). When asked to repeat his reconstruction one more time, with the filming at a different angle, he concluded the second reconstruction by saying “I messed up then”. The precise body movements, the amount of pressure involved and the exact relative positions were therefore to a very significant extent at large.[78]At trial, the appellant had yet further significantly qualified the accuracy of the reconstruction undertaken by him in interview as recorded on the DVD. He said, among other things, that it had all happened very quickly, he could not say where hands and feet were positioned and he could not say that it was an accurate factual representation of what had happened. (It is in fact something of an oddity, as it seems to us, that the DVD was provided to Dr Lane or Professor Fowler as a potential source of information at a time when the appellant was seeking – unsuccessfully – to argue in the Court of Appeal that the DVD had been inadmissible at trial.)[79]All this provides an uncertain and inadequate factual basis on which to found and then elaborate any firm conclusion from the detailed biomechanical analysis constructed by Dr Lane’s team. Dr Jones had no criticism of the mathematics and science used by the team. He did not criticise the exercise as an academic exercise. His point, as we have said, was that it could not begin to replicate the actuality of a dynamic and fluid situation between two struggling humans. We accept that.[80]There is a further point. Dr Lane, whose evidence to us was entirely fair and even-handed, was anxious to explain that she was not seeking to say that the “auto-recoil” explanation – the defence case – was a matter of probability: she acknowledging the potential limitations. Thus her and Professor Fowler’s position was that it was a possibility. (Professor Fowler had in his written report talked in terms of the “probability” of the auto-recoil scenario. In oral evidence, however, when questioned on this, he indicated agreement with Dr Lane’s views – he being present while she was examined before us – and we take him to have modified his stance on this. In any case, we were utterly unimpressed, for the reasons we have given and as explained by Dr Jones, by any biomechanical suggestion purporting to assert the probabilities of a given mechanism, in the context of a case such as the present). That possibility is precisely how the matter had been left to the jury at trial, when this whole issue had been explored at length. It is true that Dr Carter, from a pathological viewpoint, had expressed the opinion that the appellant’s scenario was very unlikely. But Dr Carter had not ruled it out; she herself accepted it as a possibility. Dr Garbutt, for the defence, had for his part advanced it as a “realistic possibility”. Given the circumstances, there was in our view no reason why those experts should not have been permitted at trial to express such views. There was thus discussion in the evidence before the jury about auto-recoil and the force that may have been used. Accordingly the matter was already there before the jury, for them to decide. This was not, therefore, a case where a defence or an explanation properly open to a defendant was never put at trial.[81]Mr Winter nevertheless sought to maintain that, had this specialist biomechanical evidence of Dr Lane and Professor Fowler also been before the jury, they might thereby have rejected Dr Carter’s opinion that the auto-recoil mechanism was “very unlikely”. It could, however, just as readily be said – in our view, perhaps more readily be said – that had this evidence been before the jury, along with that of Dr Jones, the jury might thereby the more readily have rejected Dr Garbutt’s opinion that this was a “realistic possibility”.[82]The strategy of the appellant on this part of the appeal seems, in essence, to have been to focus on Dr Carter’s evidence that the auto-recoil mechanism was “very unlikely” (notwithstanding the more modified view of Dr Garbutt called by the defence); to assert that the three reasons she had given for that view were controverted by the new biomechanical evidence; to say that her opinion on this aspect is to be replaced by “correct” science; and, in conclusion, to assert that the jury thereby could not have excluded accident. In our view, however, Miss Blackwell was quite right to warn against compartmentalising the evidence in this way. Dr Carter was talking from a pathological perspective (and it is now known that her opinion had support as a pathological viewpoint from the defence’s own pathological experts whose reports were not used at trial). The judge was, in our view, fully justified in permitting her to express this opinion before the jury as to the likelihood of the scenario postulated by the defence. Her pathological opinion is not thereafter to be taken as displaced simply by these biomechanical opinions. And as for those biomechanical opinions their obvious weaknesses and limitations are as we have explained above.[83]At all events, our assessment is that the end result of this proposed fresh evidence is that it would leave matters in effect much as they were before the jury: that is, that “auto-recoil” was a possible scenario. To add the proposed further specialist biomechanical scientific layer does not in substance, in this case, advance things: and indeed confirms the reasonableness of the tactical decision taken at the time not to seek to adduce such evidence at trial. As it seems to us, the approach now urged on behalf of the appellant comes close to falling into the trap pointed out in Pendleton, Dial and other such cases. The ultimate question for this court, if the evidence were admitted, is not to speculate as to what the jury may or may not have concluded. It is to ask whether the conviction is or is not safe.[84]In our view, having considered all the fresh evidence, the conviction is safe. The evidence of Mr Siddall and Mr Kolvekar, for which leave was previously given, does not affect the safety of the conviction. We refuse leave to adduce the evidence of Dr Lane and Professor Fowler, since we do not think it necessary or expedient in the interests of justice that it be admitted. We add that we have reached our conclusion as to the safety of the conviction considering matters cumulatively and in the round.

Defence of loss of control

[85]At no stage, whether before trial or in evidence at the trial, did the appellant advance a defence of loss of control. On the contrary, his entire case was that it was his wife who, in effect, lost her control: and he was the one who retained his control and tried to restrain her as she attacked him. It was also never, of course, the defence case that he had stabbed her in self-defence. Indeed, his case was that at no time did he himself have hold of the knife.[86]Miss Blackwell much emphasised that neither Mr Webster nor the judge (nor, indeed, she herself) had even suggested that loss of control be left as a possible defence to the jury. That is a forensic point to be made. But it remains a forensic point. As the decision of a constitution of this court in Dawes [2013] EWCA Crim 322 makes clear, a judge is required to leave such a defence to the jury, whether or not it is positively part of the defence case, if sufficient evidence is adduced to raise the issue: see s.54(1) and (5) of the Coroners and Justice Act 2009. It is not a matter for the trial judge’s “discretion”. The question is what is nowadays modishly called a binary question: either the defence should be left or it should not be left, yes or no: see Dawes at paragraphs 49 and 52-53.[87]In our view, in the circumstances of this particular case the judge was correct not to leave – and defence and prosecution counsel were correct in not suggesting that he leave – the issue of loss of control to the jury.[88]Mr Winter relied on the qualifying trigger specified in s.55(3) of the 2009 Act. There was, however, nothing at all in the defence case – whether in interview or in evidence – to give rise to such a defence. Mr Winter emphasised the acrimonious divorce context. He carefully took us through various parts of the interviews, the 999 call, Mrs Workman’s final entry on the computer and other aspects. Nothing in them, in our view, supports such a case arising. It is true that, at one stage in interview, the appellant referred to his not knowing whether he had “lost it”. But, set in context, that was a vague statement and in any case can be taken to be about whether or not he had lost control of Mrs Workman’s hand holding (as he said) the knife.[89]We overall are satisfied, therefore, that in this particular case sufficient evidence had not been adduced to raise loss of control as an issue and that the judge was justified in not leaving this defence to the jury.

Sentence

[90]We turn to the renewed application with regard to sentence.[91]The judge’s sentencing remarks were relatively brief. Clearly the starting point here, for the purposes of Schedule 21 of the Criminal Justice Act 2003, was 15 years. The judge made plain that he did not regard this as a murder done in expectation of gain but as “a murder committed in temper as a result of a bitter dispute”. It had, as the judge found, not been premeditated. The judge found that the appellant resented his wife’s financial demands in the divorce proceedings and that there had been a “bitter argument” at the time. But the judge made no finding that there was no intent to kill and Mr Winter realistically accepted that the judge must have concluded that at the time of the stabbing there was such an intent: thereby precluding one possible ground of mitigation. The judge rightly regarded the use of a large knife (even if picked up in the kitchen) as a “significantly aggravating feature”. He also considered that what occurred “must have been a terrifying ordeal” for Mrs Workman. He further observed that this happened in her home, where she might have been entitled to feel safe: although we attach relatively little weight to that particular point, given that it was accepted that this was not a premeditated killing. The judge also had regard to the appellant’s previous good character and his age (57 at the time).[92]Given the circumstances of this case, this minimum term as specified was on the severe side. But we are not able to say that it was manifestly excessive. We therefore refuse this renewed application with regard to sentence.

Conclusion

[93]Mr Winter, and those instructing him, have laboured hard on behalf of the appellant. They have advanced everything that could possibly have been advanced on his behalf: although we have to say, however, that the criticisms of trial counsel and solicitors have turned out not to have been justified.[94]Be that as it may, this appeal against conviction is dismissed. We are satisfied that the conviction is safe. The trial was fair. The summing-up was fair. The jury convicted plainly having disbelieved the appellant in his evidence. As to the proposed fresh evidence, that does not, in our judgment, controvert the safety of the conviction. The application for leave to appeal against sentence is also refused.

Cited in 2 later judgments