Admissibility of fresh evidence
The difficulty faced by a party seeking to introduce fresh expert evidence as a grounds for appeal in criminal proceedings
Fresh expert evidence as a grounds for appeal in criminal proceedings has always been a tricky issue. The statutory provisions governing appeals are contained in the Criminal Appeal Act 1968. But the rules on the receipt of fresh evidence found in s.23(2) do not relate to expert evidence, rather to factual evidence. Therein lies the difficulty faced by a party seeking to introduce fresh expert evidence.
In the interests of justice
In R -v- Jones1, the defendant had appealed against his conviction for the murder of his wife (hitting her head with a hammer and then making it appear that she had died in a road accident). He sought to adduce fresh expert medical evidence on appeal.
The Court of Appeal held that it had to consider what was best in the interests of justice when deciding whether to receive fresh evidence. Although failure by a defendant to adduce evidence at his trial did not prevent it from being accepted on appeal, the Court should take that failure into account. The Court observed that s.23(2) did not specifically cover the question of fresh expert evidence and had been framed to deal more particularly with new factual evidence. Consequently, the court considered that an explanation for failure to adduce expert evidence at the trial which related to availability carried less weight than in the case of a factual witness. Experts, said the Court, were interchangeable to a certain extent. Even if there was only one expert capable of establishing a particular defence and he was unavailable at the time of the trial, the trial could be postponed. There was, said the Court, no strong argument for allowing fresh expert evidence at appeal.
Mental incapacity and fresh evidence
The judgment in Jones was applied in the Sally Clark case and was followed in R -v- Gilbert2.
In Gilbert, there was an appeal against a murder conviction. The appellant had stabbed his partner to death and had given evidence at trial that voices in his head had made him kill her. But no medical evidence had been produced at trial, at which only the defence of provocation had been raised. Reports were prepared by a psychiatrist for the Criminal Cases Review Commission. He believed that the appellant was seriously mentally ill before, during and after the offence, the illness was not caused just by his alcohol dependence and it was very likely that his condition was such as to have enabled him to satisfy a court that his responsibility was diminished. This was corroborated by statements from the appellant’s daughters, who said that their father had suffered a range of symptoms suggestive of mental illness. Material within the appellant’s probation records also recorded a number of incidences of the appellant hearing voices in his head.
The Crown argued that there was no reasonable explanation for the failure to adduce evidence to support the plea of diminished responsibility at trial. Following the judgment in Jones, the Court of Appeal allowed the application to adduce the expert evidence on the grounds that, in accordance with s.23(1) of the 1968 Act, it was expedient in the interests of justice to do so. The Court held that there was a reasonable explanation for not advancing a defence of diminished responsibility at trial because there was a chance that the true facts were not disclosed by the appellant because of his illness.
A change of experts does not count
In 2009 the question came before the court again.
In R -v- Meachen3, there was an appeal, by way of a reference from the Criminal Cases Review Commission, against a conviction for causing grievous bodily harm with intent. The doctor who had treated the victim’s injuries gave expert evidence for the Crown, stating that the defendant’s explanation that the injuries had been caused accidentally during consensual sex was not credible. Given the severity of the injuries, these would have involved severe pain and could not have been caused unless the victim had been anaesthetised. The medical expert for the defendant agreed on the pain point but disagreed about the cause of the injuries.
On appeal, Meachen sought to adduce fresh evidence from another expert. He contended that at trial the issue of the amount of pain involved and the level of the victim’s consciousness had not been addressed. So he sought to bring evidence relating to the level of intoxication and how insensible the victim had been. He also sought to introduce expert evidence as to the cause of the injuries.
Dismissing the appeal, the Court considered the case of Jones in relation to the request to adduce fresh expert evidence. It was held that this was not a case where the bringing of fresh evidence should be permitted. Just as it would subvert the trial process if a defendant was free to mount on appeal an expert case which could have been advanced before the jury, so it would subvert the trial process if a defendant was free to mount on appeal the same expert case as was advanced at trial with a different or additional expert. If the expert evidence could have been led at trial, then it is not fresh evidence.
The courts have now made it clear that fresh expert evidence will only be a grounds for appeal in the limited circumstances permitted by Jones where the interests of justice will not be served if it is excluded. Evidence that is essentially the same as was presented in the original trial, but is adduced by a different expert, is not fresh evidence. The appeal process is not to be used as a means of presenting an alternative expert opinion.
1 R -v- Jones  1 Cr App R 86 CA (Crim Div).
2 R -v- Gilbert  EWCA Crim 2385.
3 R -v- Meachen  EWCA Crim 1701.