‘Expert Shopping’: Appeals Adducing Fresh Evidence in Diminished Responsibility Cases: R v Foy [2020] EWCA Crim 270
| Date | 01 June 2020 |
| DOI | 10.1177/0022018320921053 |
| Published date | 01 June 2020 |
| Subject Matter | Case Notes |
Case Note
‘Expert Shopping’: Appeals
Adducing Fresh Evidence in
Diminished Responsibility
Cases
R v Foy [2020] EWCA Crim 270
Keywords
Murder, manslaughter, diminished responsibility, fresh evidence, expert evidence, intoxication,
appeals
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:
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.
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
The Journal of Criminal Law
2020, Vol. 84(3) 249–254
ªThe Author(s) 2020
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DOI: 10.1177/0022018320921053
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