Alison Murphy [2019] EWCA Crim 1274

**Regina v. Alison Murphy** [2019] EWCA Crim 1274 was an appeal to the Court of Appeal (Criminal Division) in which the court refused both a renewed application for leave to appeal against conviction and an application for leave to appeal against sentence.

Mrs Murphy had been convicted on 3 November 2016 in the Crown Court at Carlisle of the attempted murder of her son, Anthony Murphy, and was sentenced to seventeen years’ imprisonment. She applied for leave to appeal her conviction four days out of time and also applied, 412 days out of time, for leave to appeal against sentence. The single judge had refused the conviction applications; the Registrar referred the sentence applications to the full court. Mrs Murphy appeared in person before Lord Justice Irwin, Mr Justice Goose and His Honour Judge Potter sitting as a judge of the Court of Appeal.

The facts concerned events on 15 April 2016. Mrs Murphy, then aged 51, had two sons: Anthony, aged 26, and Gary, aged 22, who had been diagnosed with Asperger’s Syndrome and harboured suicidal and homicidal ideation directed at his brother. Anthony, who had a history of substance misuse, was staying temporarily with his mother in Whitehaven while attempting to avoid drink and drugs. On returning home from Ireland that day, Mrs Murphy found Anthony had been drinking and smoking cannabis. An argument ensued. Contact was then made with Gary Murphy by telephone and text message. The prosecution relied on a schedule of text messages which, it contended, demonstrated a clear agreement to kill Anthony. The messages, sent from a phone number attributed to Mrs Murphy, included statements such as “He is still being a total shit I definitely think he should be killed but not sure stabbings is the right method We should make him fall in the harbour or off a cliff”, “If you’re on the 10.40 bus you’ll be at the harbour at 11”, “Here at 11.30. I should make him walk towards you”, and “The door is open so come in and then lock it”. Gary replied, “I’m on the bus. I’m fine with whatever as long as he dies”. Gary arrived at the property with a knife and stabbed Anthony in the neck, inflicting an 8.2 centimetre laceration which completely transected the right external jugular vein. Gary then left and Mrs Murphy called the emergency services, following their instructions to staunch the bleeding, which likely saved Anthony’s life. Gary pleaded guilty to attempted murder at the first opportunity.

Mrs Murphy’s defence at trial was that the incriminating text messages had not been sent by her but by Anthony himself, in order to cause trouble. During cross-examination, Anthony repeatedly said he did not remember sending any messages because he had been drunk. The jury convicted Mrs Murphy after trial. His Honour Judge Davies concluded that Mrs Murphy and Gary had used a knife brought to the scene. Although she contended she did not know Gary had the knife, the text messages expressly referred to the possibility of killing by stabbing. The judge sentenced her to seventeen years’ imprisonment.

The sole ground of appeal against conviction was fresh evidence said to be unavailable at trial. Mrs Murphy relied on further statements and interviews Anthony had given after conviction, which she argued would have prevented the jury from being sure she was party to the attempted murder. The respondent opposed the application, submitting that the evidence did not satisfy section 23 of the Criminal Appeal Act 1968 and was incapable of belief. The single judge adopted the respondent’s submissions.

The court considered representations in a number of letters from Mrs Murphy and her oral submissions by video-link. She argued that Anthony’s medical records might show he behaved rationally and was not wholly incapable at the material time, casting doubt on who sent the messages. The court rejected the appeal. Mr Justice Goose, giving the judgment, held that the further evidence was not capable of belief. First, the messages did not read as though one brother was sending them to another to cause trouble; the jury had evidently been satisfied they came from Mrs Murphy. Secondly, Anthony did not assert at trial that he had sent them, despite persistent cross-examination. Thirdly, following conviction Mrs Murphy telephoned Anthony from prison on 27 November 2016, asking him to tell the police he was not excessively drunk, plainly so that it might appear more likely that he had sent the messages. Fourthly, in a police interview on 12 December 2016 and a witness statement dated 25 January 2017, Anthony remained vague about any messages he might have sent and could not describe their content, although he said he might have sent “maybe 10 messages in total”. Whilst the further accounts might strictly be fresh evidence not available at trial, the court was not persuaded they were capable of belief. The jury had assessed Anthony’s evidence, during which he did not admit sending the messages, and even when prompted by Mrs Murphy he remained vague. The court did not consider that medical records showing Anthony may have been capable of rational thought would assist on the question of who sent the text messages. The court therefore refused leave to appeal against conviction and the extension of time.

On sentence, Mrs Murphy argued that seventeen years’ imprisonment was manifestly excessive, and repeated her arguments concerning conviction. The court noted that the judge had concluded the offence was committed with a knife brought to the scene. Gary had admitted to police that he brought the knife with him. Although Mrs Murphy contended she did not know about the knife, the text messages expressly referred to the possibility of killing by stabbing. In oral argument she suggested Gary could have taken the knife to the house during the week before, when she was away, but this did not answer the discussion of stabbing in the text messages or Gary’s admission. The court held that the judge had been entirely justified in reaching his conclusion after hearing the evidence. Even allowing for mitigation, the sentence of seventeen years was at the bottom of the range of seventeen to twenty-five years provided by the Attempted Murder Guideline, adjusted to reflect paragraph 5A of Schedule 21 to the Criminal Justice Act 2003, as explained in Attorney General’s Reference No 63 of 2013 [2014] EWCA Crim 2763. The court found no merit in the appeal against sentence and refused the application for an extension of time and the renewed application for leave to appeal.

In short, the court refused all applications, holding that the fresh evidence was incapable of belief and did not undermine the safety of the conviction, and that the sentence was neither wrong in principle nor manifestly excessive.

Ahmad [2014] EWCA Crim 2763