Abstract
Section 23 of the Criminal Appeal Act (CAA) 1968 provides the framework for the admission of fresh evidence in criminal appeals in the Court of Appeal. The overarching consideration in whether the Court should permit such evidence to be formally admitted into evidence is by reference to what is ‘necessary or expedient in the interests of justice’ (s 23(1)). By s 23(2), the Court is required to take the following four matters, among other relevant considerations, into account: whether the evidence appears to the Court to be capable of belief; whether it appears to the Court that the evidence may afford any ground for allowing the appeal; 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 whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
Foy concerned an appeal founded solely upon leave to adduce fresh evidence that was not available at trial. The evidence concerned an expert psychiatric report from a Dr Philip Joseph which, if adduced, could have supported a defence of diminished responsibility. That defence had not been run at trial due to the inability to obtain this specific report for trial, given that funding was available, and the expert instructed at trial did not support such a defence.
Nicholas Foy (F) had been convicted of murder on 12 February 2018 at the Central Criminal Court. This charge arose following the fatal stabbing of Laurent Volpe, a French tourist, by F on the evening of 11 August 2017. F, having ingested a large quantity of both alcohol and cocaine in the period leading up to the attack, had been suffering from some psychotic episode at the time. F had taken a knife from his kitchen and gouged at his own foot convinced he was removing a lump he believed to be a bomb.
Following this, F ran down the street in the direction of the victim, fatally stabbing the victim in the stomach. F and the victim were strangers to one another; the victim was simply in the unfortunate path of F. Shortly thereafter, F was arrested by the police following some initial struggle.
F was charged with murder and at his trial argued that, as a result of his acute intoxication, he lacked the necessary mens rea for murder (ie the intention to kill or cause really serious harm). The only matter in dispute before the jury, therefore, was whether F formed the necessary intent; F accepting that he had stabbed the victim. The jury rejected this argument, finding F guilty of murder; the trial judge (HHJ Munro QC) had directed the jury that an intoxicated intent is still an intention.
Prior to trial, F had explored the partial defence of diminished responsibility contained in s 2 of the Homicide Act 1957, as amended by s 52 of the Coroners and Justice Act 2009, and considering running that defence (as demonstrated by the initial Defence Statement dated 12 December 2017). The defence team had initially approached Dr Joseph for a psychiatric evaluation of F; Dr Joseph’s fees, however, were not agreed by the Legal Aid Agency. As a result, the defence instructed a Dr Michael Isaac who in his initial report, comprising 122 paragraphs, concluded that the defence of diminished responsibility could not have stood. Dr Isaac concluded that the psychotic episode was caused by ‘a combination of cocaine and alcohol’ (at [26]), finding that the possible alternative of schizophreniform disorder could not be made out given that the symptoms were not ‘“sufficiently serious or prominent” as to show a psychosis of that order’ (at [26]). On his own admission, Dr Isaac had not had access to the inmate records of F which, according to the defence, demonstrated a paranoid personality disorder. In addition to providing Dr Isaac with this evidence, counsel for F also supplied Dr Isaac with numerous lengthy examples of F’s mental state as recorded by his family. These examples were used to evidence his paranoid behaviour even in absence of intoxicants. Dr Isaac, in reviewing this additional evidence, and the judgment from R v Kay; R v Joyce [2018] 1 All ER 881, maintained his original conclusion: ‘without the cocaine and alcohol he had been voluntarily ingesting pretty well continuously for many hours, I cannot see that in itself it would have substantially impaired his responsibility’ (original emphasis, at [35]). Without the support of Dr Isaac, and without other psychiatric evidence to rely upon, F abandoned the defence of diminished responsibility prior to trial.
Following his conviction, F’s family secured the necessary funds to obtain the opinion of Dr Joseph, the expert initially approached by the defence team. Following a review of the evidence before him, Dr Joseph concluded that the defence of diminished responsibility could have been made out. In particular, Dr Joseph considered all evidence available to Dr Isaac and had access to the initial and follow-up reports of Dr Isaac. Dr Joseph produced three reports in support of his conclusion. In his first, Dr Joseph concluded that F suffered from an ‘acute transient psychotic episode’ which had been exacerbated by the abuse of alcohol and cocaine. At [43], it is noted that Dr Joseph concluded that ‘[i]f the effects of alcohol and cocaine are discounted, the remaining abnormality of mental functioning was in my opinion a significant contributory factor causing the appellant to carry out the killing’. In his second report, Dr Joseph contended that the toxicology report demonstrated that the amount of alcohol and cocaine ingested by F may have been less than he had given evidence of. If this were so, the defence of diminished responsibility would have been strengthened. In his third and final report, Dr Joseph expressed his disagreement with the Report of a third expert, Dr Nigel Blackwood, who was instructed by the Crown in anticipation of F’s appeal.
With the evidence of Dr Joseph now available to him, F appealed against his conviction seeking to adduce this fresh evidence under s 23 of the CAA 1968. The Court of Appeal, led by Davis LJ, conducted the appeal in two parts: Was the fresh evidence admissible in line with the CCA 1968? If the evidence was admissible, was the defendant’s conviction rendered unsafe by this fresh evidence?
Lord Justice Davis first dealt with the question of whether the fresh evidence could be admitted. His Lordship began by identifying the fundamental principles of s 23 CAA 1968, including the need for finality in litigation and the importance that an appeal is not treated merely ‘as a means of having a second go’ (at [50]). Between [50] and [65], Davis LJ drew a distinction between the circumstances where evidence was not available at trial, evidence that was available but was overlooked, and evidence that was available, was appropriately considered and then reasonably rejected. This was a case concerning the latter circumstance—the mere fact that a different opinion as to the evidence has arisen post-conviction is not a sufficient basis to adduce the evidence under s 23. At [60], Davis LJ explained: This is not a case where a potential defence of diminished responsibility was overlooked. This is not a case where there was any legal error or oversight. This is not a case where the instructed expert, of acknowledged expertise, has overlooked or misunderstood relevant information or did not have access to relevant information. This is not a case where the expert failed diligently to examine the relevant materials or failed to reach a proper conclusion reasonably open to him. This is not a case where important new facts or materials or other developments have emerged since trial. In truth, this case is, in its fundamentals, a case where, following conviction, an attempt has been made to instruct a new expert with a view to securing—as has happened—an opinion on diminished responsibility different from that of the previous expert instructed before trial. It is, bluntly, expert shopping. (emphasis added) Having considered all the circumstances of this particular case, we conclude that it would be entirely wrong, in principle and on the facts, to permit this proposed fresh evidence to be adduced. It is not in the interests of justice to do so. Further, it was rather disconcerting that, at stages in his oral evidence before us, Dr Joseph seemed to proceed on the footing that, although in his third report he had firmly rejected Dr Blackwood’s suggestion of paranoid personality disorder (saying that he had seen no evidence that the appellant had developed such a disorder), nevertheless such a disorder might in fact provide an explanation for the appellant’s acts. Dr Joseph was in general terms insistent that while, as he accepted, the appellant would not have killed without being (voluntarily) intoxicated, he also would not have killed without, as he put it in oral evidence, his “underlying mental health problems”. At all events, at stages his oral evidence came close, as it seemed to us, to saying that because at the time the appellant was at the time intoxicated and because at the time he had some medical condition (“let’s call it paranoid personality disorder, if you like”, as he at one stage said) therefore a defence of diminished responsibility arose. But that simply is not tenable as a general proposition: it is wholly contrary to the wording and structure of s.2 and wholly contrary to the need for appropriate evidence for each stage of the defence, as set out in that section. In our judgment, reviewing the proposed evidence and excluding, as one must, the involvement of the voluntarily ingested alcohol and cocaine, there is simply no solid basis for asserting an abnormality of mental functioning arising from a recognised medical condition which substantially impaired the appellant’s ability in the relevant respects and which provided an explanation (in the sense of the statute) for his acts.
Commentary
The case of Foy is a helpful demonstration of the application of s 23 CAA 1968 in the context of diminished responsibility cases. Not only does Foy demonstrate the views of the Court of Appeal on fresh evidence, and the circumstances in which such evidence may be fairly adduced, it is also advantageous by reaffirming the common law principles relating to the presence of intoxication in cases involving the defence of diminished responsibility. This comment will focus on the first of these matters.
Expert Shopping: A Difference in Opinion
Perhaps the most noteworthy feature of Foy was the opportunity taken by Davis LJ to express his dissatisfaction with the conduct of F’s defence team for their so-called ‘expert shopping’. Indeed, this is a common feature of appeals under s 23; counsel seeks to introduce fresh evidence subsequent to conviction in an attempt to convince the court that the defendant should succeed on the second occasion.
Of particular importance from the judgment was Davis LJ’s distinction of cases in which s 23 may operate. This was not a case where the fresh evidence has emerged subsequent to conviction that could not be obtained at trial. This was not a case where the evidence was lacking at trial due to fault, error or oversight of counsel at trial. This was a case in which the defence had obtained the evidence of one expert, did not like the conclusions of that expert and sought to introduce a different opinion; one that supported the contention of the appellant. In these cases, the interests of justice are not served by the admission of this evidence on appeal. The cases recording this fact are numerous. In particular, Davis LJ referred to R v Erskine; R v Williams [2009] EWCA Crim 1425 in which Lord Judge CJ had explained (at [82] of Erskine): What [an appellant] cannot do is to advance such a defence and then, after conviction, seek to appeal in order to advance an alternative defence, such as diminished responsibility. There is one trial, and that trial must address all relevant issues relating to guilt and innocence. Once convicted by the jury, he is guilty of the murder he has denied committing. The defence suggestion that he is not guilty has been rejected, and he has elected not to advance diminished responsibility. If he pleads guilty to murder, he has ignored the opportunity available to him to advance diminished responsibility as a defence. The trial process is concluded. (emphasis added) The fact that the issue was not raised at trial does not automatically preclude its reception. However, if an appellant were allowed to advance on appeal a defence which could and should have been put before the jury, the trial process would be subverted. If a defence was not raised at trial which could have been raised, or evidence was not deployed which was available to be deployed, it is unlikely to be in the interests of justice to allow it to be raised on appeal unless a reasonable and persuasive explanation was given for the omission. (emphasis added) It has become not uncommon to try to persuade this court to reconsider the DNA evidence given at trial by adducing a new report. There are occasions when this is justified where there has, for example, been an advance in DNA science; there may be other cases where it is in the interests of justice for the court to receive fresh evidence. However, as this court has said on many previous occasions, it is for the defence to call their expert evidence at trial. It is not the function of this court to permit expert evidence to be re-litigated on appeal. If there was dissatisfaction or dismay at the time with the conclusion of Dr Isaac before trial then it was open to them at that time to raise funds to seek to commission a further report at that stage: and doubtless an adjournment, if needed, would have been granted for that purpose. But it is not, in our opinion, acceptable to wait upon the outcome of the trial: and then, and only then, when the defence of lack of intent was disproved and the appellant convicted, seek to resurrect a defence of diminished responsibility by commissioning a fresh psychiatric report from a different psychiatrist.
A Departure from Challen?
One cannot consider the operation of s 23 in diminished responsibility cases without considering the judgment of the Court of Appeal in R v Challen [2019] EWCA Crim 916. In Challen, the appellant, having been convicted of murder of her husband a number of years prior, successfully appealed against her conviction on account that fresh evidence ought to be adduced that was not previously available at trial. The fresh evidence disclosed two matters: first, evidence of coercive control exercised by the victim over the appellant, and expert evidence of a borderline personality disorder and a severe mood disorder, probably bipolar affective disorder suffered at the time of the killing. Hallett LJ, providing the unanimous judgment of the Court, accepted and emphasised that the circumstances of the case were ‘unusual’, and it was only in these unusual circumstances that the fresh evidence be admitted. The issue, therefore, is whether Foy is as ‘unusual’ of a case?
It would be a misnomer to say that Foy departs from the judgment of Challen. Rather, each case ought to be treated on its own facts and it is simply the case that the circumstances in Foy were not of such a standard, as in Challen, to justify the same conclusion. Some distinctions can be made between Challen and Foy to demonstrate this point. First, the fresh evidence in Challen (of Dr Adshead) arose as a result of the appellant’s change of behaviour while in prison; in particular her manic episodes. These episodes suggested bipolar affective disorder on part of the appellant, a matter not considered or identified at trial. In comparison, in Foy, the possibility that F suffered from a paranoid psychosis was considered at length by Dr Isaac. It was considered reasonably, in full and was concluded not to be made out; it was not overlooked. Second, while some of the potential evidence demonstrating the bipolar affective disorder was presented before the jury in Challen, ‘its potential relevance was not addressed’ (per Hallett LJ in Challen). Whereas in Foy, the evidence remained unchanged and the full evidence was considered by appropriate experts. While those experts reached varying conclusions, it could not be denied that the evidence had been addressed in full. These two examples demonstrate the importance of treating cases according to their individual facts and while the circumstances of Challen were sufficiently ‘unusual’ to justify admission of fresh evidence, such circumstances did not obviously arise in respect of Foy.
Challen is best treated, therefore, as an exceptional case in which fresh evidence was admitted. Foy is best treated as a case unable to reach the standard of sufficiently ‘unusual’ to justify admission of fresh evidence.
Conclusion
The appeal in Foy serves as a helpful reminder that the Court of Appeal will not be easily persuaded that fresh evidence ought to be admitted in the interests of justice. Such interests will be exceptional and will not arise in circumstances, as in Foy, where the evidence involves a mere difference in opinion from the original evidence. Something more must be adduced. In addition, Foy confirms the approach of the House of Lords in Dietschmann [2003] UKHL 10 and the Court of Appeal in Kay; Joyce that whether the appellant’s abnormality of mental functioning substantially impaired his responsibility must be considered discounting any voluntary intoxication. That decision is to be determined as a matter of fact and degree; in this case, Davis LJ was frank: ‘In our assessment, it falls a long way short of doing so’ (at [96]).