R v Amanda O’Shaughnessy

Fresh evidence on a criminal appeal must be assessed under the overarching interests-of-justice test in the Criminal Appeal Act 1968. Evidence that could and should have been called at trial will generally not be admitted where it would subvert the trial process, revisit sound tactical decisions or introduce a different defence. Psychiatric evidence of PTSD or complex PTSD may assist only on the gravity of a qualifying trigger for loss of control. It cannot establish loss of control or alter the objective standard of tolerance and self-restraint. Where the evidence would not realistically have changed the defence strategy or the jury’s factual conclusions, it affords no ground for allowing the appeal. The fresh evidence was excluded and leave to appeal was refused.

The applicant was convicted at Liverpool Crown Court of murdering her partner after stabbing him during an argument. Her principal defence at trial was self-defence, with lack of intent as a secondary defence. The trial judge also left the partial defence of loss of control to the jury, which rejected it.

The applicant renewed her application for leave to appeal and sought to adduce nearly 900 pages of social-services records and new psychiatric evidence diagnosing PTSD and complex PTSD. The central issue was whether the evidence should be admitted under section 23 of the Criminal Appeal Act 1968 and, if admitted, might afford a ground for allowing the appeal.

The applications were refused. The Court declined to admit the fresh evidence and refused the renewed application for leave to appeal.

1. Under section 23(1)(c) of the Criminal Appeal Act 1968, the Court has a wide discretion to receive evidence not adduced at trial where this is necessary or expedient in the interests of justice. The interests of justice are the overarching concern, and the factors in section 23(2) are particular, non-exhaustive considerations. The procedure for determining admissibility and the substantive appeal together was adopted in accordance with R v Cross [2014] EWCA Crim 96.
2. Save in exceptional cases, an appellant cannot use fresh evidence to advance a defence or evidence which could and should have been placed before the jury, repair deficiencies in the trial evidence, or revisit sound tactical decisions. Nor may an appeal be used to substitute a new expert opinion for the evidence of experts instructed at trial. This principle was followed from R v Erskine (Kenneth) [2009] EWCA Crim 1425; [2009] 2 Cr App R 29.
3. Under section 54 of the Coroners and Justice Act 2009, expert evidence concerning PTSD or complex PTSD is irrelevant to the defendant’s general capacity for tolerance and self-restraint. It may be admissible for the limited purpose of explaining why a qualifying trigger appeared more grave or serious to that defendant, following R v Rejmanski [2017] EWCA Crim 2061 and the approach illustrated by R v Sargeant [2019] EWCA Crim 1088. Whether the defendant lost control and whether the loss was caused by the qualifying trigger remain factual questions for the jury.
4. The evidence was credible, but most of it was available at trial. The social-services records added little of significance, while the new psychiatric opinions relied substantially on a more detailed and partly embellished account of the applicant’s adult relationships. The decision not to run loss of control was justified because it conflicted with her consistent self-defence account and would have undermined the principal defence.
5. Even if the evidence had been available, it was extremely unlikely to have altered counsel’s strategy or the result. The described attack, if accepted, would already have been a qualifying trigger without expert assistance. The jury’s rejection of self-defence and loss of control depended on factual issues unaffected by the proposed evidence. Admission would therefore subvert the trial process and would not be in the interests of justice.

1. Court of Appeal (Criminal Division) On 19 February 2026, after an earlier extension of time had been granted by a different constitution, the Court refused admission of the fresh evidence and the renewed application for leave to appeal: [2026] EWCA Crim 141.
2. Liverpool Crown Court The applicant was convicted after trial of murdering David Butterworth on 16 June 2015. No lower-court citation is stated in the judgment.