Guidance on Fresh Evidence Admission and Category A2 Sentencing: Zhang v R [2025] EWCA Crim 639

Introduction

In Zhang, R. v ([2025] EWCA Crim 639), the Court of Appeal (Criminal Division) addressed two key issues. First, whether to grant Dr Ying Zhang an extension of time and leave to appeal against his conviction by adducing fresh psychiatric and neurological evidence. Second, whether the life sentence with a 22-year minimum term imposed on Dr Zhang for the attempted murder of his estranged wife, Dr Hannan Xiao, was manifestly excessive in light of the relevant Sentencing Council guidelines. Dr Zhang had been convicted at the Central Criminal Court on 31 January 2023 and, following a dangerous offender determination, received a life sentence. He renewed applications for extension of time, leave to appeal against conviction, leave to adduce fresh evidence and leave to appeal sentence. The Court of Appeal ultimately refused all conviction-related relief but allowed a narrow appeal on sentence to correct a guidelines error.

Summary of the Judgment

The Court of Appeal refused to extend time or admit any fresh evidence under section 23 of the Criminal Appeal Act 1968. It held that:

The proposed expert reports were either inadmissible as no defence was available (diminished responsibility does not apply to attempted murder) or constituted impermissible “expert shopping.”
The tactical decision by trial counsel to withhold psychiatric and neurological reports was reasonable and did not render the conviction unsafe.
The jury directions on adverse inferences under sections 34–36 of the Criminal Justice and Public Order Act 1994 were appropriate and did not prejudice Dr Zhang.

On sentence, the court identified that the trial judge had applied the wrong starting point for a Category A2 attempted murder under the Definitive Guideline. The correct starting point is 30 years’ custody (not 35) with a range of 25–35 years. Allowing an amended ground of appeal, the Court substituted a minimum term of 18 years and 171 days’ custody (after deducting time on remand) in place of the original 22-year minimum.

Analysis

Precedents Cited

R v Burinskas [2014] 2 Cr App R (S) 45 – guidance on dangerous offender determinations and life sentences versus extended determinate sentences.
R v Foy [2020] EWCA Crim 278 – refusal to admit fresh evidence post-trial where initial expert opinion was tactically excluded, emphasizing finality and discouraging “another go.”
R v Sesay [2024] EWCA Crim 483 – requirement to specify minimum terms in years and days for life sentences, rather than indeterminate formulas.

These authorities shaped the court’s approach to both the discretion under section 23 CAA 1968 and the proper application of Sentencing Council guidelines.

Legal Reasoning

(1) Fresh Evidence and Appeal Against Conviction: The Court applied the Foy principle that a defendant must bring his full case at trial. The psychiatric evidence did not support any full defence to attempted murder, and any marginal claim of impaired intent was a jury question. The neurological evidence on amnesia could at best explain Dr Zhang’s credibility, not negate the offence. Trial counsel’s tactical decisions were reasonable and made in the client’s best interests.

(2) Adverse Inference Directions: The trial judge’s balanced directions under sections 34–36 CJPOA 1994 on Dr Zhang’s silence in interview and cessation of evidence were appropriate. There was no legal error, and on any view the evidence against Dr Zhang was overwhelming.

(3) Sentencing Error: The Court corrected the trial judge’s mis-identification of the starting point for a Category A2 attempted murder. It re-weighed the aggravating features—financial motive, history of violence, breach of non-molestation orders—and the mitigating factors to reach a notional determinate term of 30 years. Applying Sesay, it imposed a minimum term of 18 years and 171 days.

Impact

Reinforces that “expert shopping” will be resisted and that appeals cannot re-run tactical choices made at trial.
Clarifies that partial defences like diminished responsibility are unavailable to attempted murder, limiting psychiatric evidence’s role to fitness, insanity or automatism.
Affirms strict adherence to Sentencing Council guidelines — Category A2 starting point is 30 years — and the obligation to express minimum terms in years and days per Sesay.
Emphasizes deference to trial judges on dangerousness and life sentence decisions, absent clear misapplication of legal principles.

Complex Concepts Simplified

Section 23 Criminal Appeal Act 1968 – Governs admission of fresh evidence on appeal; court considers believability, potential to affect outcome, admissibility at trial, and reason for non-adduction.
Diminished Responsibility – A partial defence reducing murder to manslaughter if mental abnormality substantially impaired intent; not available for attempted murder.
Category A2 Attempted Murder – Under the Definitive Guideline, intended killing for financial gain (or extremely high culpability) carries a 30-year starting point, with a range of 25–35 years.
Life Sentences and Minimum Terms – A dangerous offender life sentence requires a minimum term reflecting seriousness; courts must announce exact years and days.
Adverse Inference Directions – Judges may direct juries that silence in police interview or failure to give evidence may lead to an inference, but such directions must be fair and balanced.

Conclusion

Zhang v R consolidates important principles on both fresh evidence and sentencing. It confirms that appellate courts will not allow defendants to re-open tactical decisions made at trial nor admit evidence that cannot negate offence or defence elements. On sentencing, it underscores rigorous compliance with guideline starting points and transparency in setting minimum terms. As such, Zhang serves as a leading authority on the limits of post-conviction evidence, the role of psychiatric proof in attempted murder, and the meticulous application of Sentencing Council guidelines for life and determinate sentences.