Nicole Thomas v R

Fresh expert psychiatric evidence is not admissible merely because a new expert challenges evidence heard at trial. The statutory discretion to receive fresh evidence requires consideration of its credibility, admissibility at trial, the explanation for its non-production and whether it could afford a ground for allowing the appeal. The appellate jurisdiction is not a means of relitigating issues or conducting a trial in stages. Where new material substantially repeats evidence and criticisms available at trial, it will rarely justify admission. Its significance must be assessed against the whole trial evidence and the issues left to the jury. Fresh evidence refused; appeal dismissed.

The appellant was convicted at the Central Criminal Court of murder and attempted murder in 2013. Her defence to murder was diminished responsibility. Leave to appeal was refused in R v Edgington [2013] EWCA Crim 2185. The Criminal Cases Review Commission later referred the conviction after obtaining further psychiatric reports. The appellant argued that the prosecution expert’s evidence was materially misleading and sought to adduce reports prepared after trial. The central issues were whether the reports were fresh evidence under section 23 of the Criminal Appeal Act 1968 and whether they could render the conviction unsafe.

1. Fresh evidence and outcome. The Court refused to admit the reports of Professor Rix and Dr Farnham, together with the related medical material, and dismissed the appeal on all grounds.
2. Applicable principles. Section 23 of the Criminal Appeal Act 1968 governed the application. The Court considered whether the evidence was capable of belief, whether it would have been admissible at trial, whether there was a reasonable explanation for its absence, and whether it could afford a ground for allowing the appeal. The Court applied the approach in R v Pendleton [2001] UKHL 66, namely whether the evidence, if available at trial, might reasonably have affected the jury’s decision.
3. The jurisdiction is not an opportunity to relitigate issues canvassed at trial. Following the principles in R v Kai-Whitewind [2005] EWCA Crim 1092 and R v Hunnisett [2021] EWCA Crim 265, repetition or near repetition of expert evidence will rarely justify an appeal. A new expert’s restatement of criticisms based on material available to trial counsel does not make the evidence fresh.
4. The alleged criticisms of Dr Joseph’s evidence were based substantially on material available at trial and had been explored in lengthy and thorough cross-examination. The post-trial material did not point uniformly to a diagnosis supporting diminished responsibility, and Professor Blackwood considered Dr Joseph’s diagnosis reasonably open on the evidence.
5. The new material had to be assessed against the evidence as a whole. All experts agreed that the appellant had some abnormality of mental functioning, so the live issues were substantial impairment and whether the condition explained the killing. The jury had extensive CCTV, evidence of the appellant’s conduct before and after the attacks, and the competing expert opinions. A retrial would therefore present essentially the same evidential position, with different experts giving some of the evidence.
6. The three grounds were either unsupported or had already been explored at trial. The fresh evidence did not provide a proper basis for concluding that the conviction was unsafe.

• Court of Appeal (Criminal Division), present appeal: Following a Criminal Cases Review Commission reference, the Court refused to admit the fresh evidence and dismissed the appeal.
• Court of Appeal (Criminal Division), 2013: Leave to appeal against conviction and sentence was refused in R v Edgington [2013] EWCA Crim 2185.
• Central Criminal Court: The appellant was convicted of murder and attempted murder and received concurrent life sentences, with a minimum term of 37 years for murder.