Foy v R.

Under section 23 of the Criminal Appeal 1968, a renewed application based on psychiatric material may pass the arguability threshold where the material identifies a potentially independent mental condition which was not properly considered before trial and which may found diminished responsibility. The court must nevertheless guard against subverting the trial process by permitting a defendant to advance, after conviction, a defence or evidence which could and should have been put before the jury.

The assessment is fact dependent. Granting leave does not admit the proposed fresh evidence or determine whether the conviction is unsafe; those questions remain for the full court.

Nicholas Foy was convicted of murder at the Central Criminal Court on 12 February 2018 and sentenced to life imprisonment with a minimum term of 17 years. His trial defence was that voluntary cocaine and alcohol intoxication prevented the formation of the intent required for murder.

After conviction, Dr Joseph reported that the appellant may have suffered an acute transient psychotic episode independent of substance misuse. The appellant renewed his application for leave to appeal, seeking to rely on that report as fresh evidence and contending that it could found diminished responsibility under section 52 of the Coroners and Justice Act 2009.

The central issue was whether the new psychiatric material made an appeal arguable despite the defence not having been advanced at trial.

1. Leave to appeal against conviction was granted. The court held only that the arguability threshold had been crossed. It reserved to the full court the decision whether to receive Dr Joseph’s evidence and whether, after hearing any further evidence, the conviction is unsafe.

2. Section 23(1) of the Criminal Appeal 1968 permits the receipt of fresh evidence where necessary or expedient in the interests of justice, having regard to section 23(2). The court applied the caution in Erskine [2009] 2 Cr App R 29: ordinarily, allowing a defendant to advance on appeal a defence or evidence which could and should have been placed before the jury would subvert the trial process.

3. That caution did not preclude leave on these facts. Before trial, Dr Isaac had attributed the appellant’s psychosis to voluntary drink and drugs, so diminished responsibility was not then available. Dr Joseph’s later report, however, raised an arguable diagnosis of an acute transient psychotic episode independent of substance misuse. It was arguable that this condition had not been considered before trial and might have substantially impaired responsibility.

4. There were material difficulties for the appellant, including differences between his accounts and the possibility that Dr Joseph’s reasoning diverged from the trial case on intoxication. Further expert evidence was therefore required. The court directed a supplemental report, permitted a prosecution response, and directed the filing of proposed fresh evidence before a one-day substantive appeal hearing.

5. The decision gave no general licence to introduce better psychiatric evidence after conviction. Whether fresh evidence may support an appeal remains fact dependent.

• Court of Appeal (Criminal Division): In Foy v R. [2019] EWCA Crim 1156, the court granted renewed leave to appeal against conviction and gave directions for a substantive appeal. It reserved the question whether to receive further evidence to the full court.

• Central Criminal Court: The appellant was convicted of murder on 12 February 2018 and sentenced to life imprisonment with a minimum term of 17 years.