Quinn, R v

Under section 23 of the Criminal Appeal Act 1968, the stated considerations are not conditions precedent to receiving fresh evidence. The court must assess all the circumstances and the interests of justice.

Fresh evidence may therefore be received although a reasonable explanation for its absence at trial has not been established. Where credible and admissible fresh evidence materially undermines the sole evidence supporting conviction, the conviction is unsafe. The age of a case does not preclude relief in the rare case where refusing an appeal would perpetuate a miscarriage of justice.

In 1957, John Quinn and a co-defendant were convicted at Cumberland County Quarter Sessions of receiving stolen brass fittings and lead, contrary to section 33(1) of the Larceny Act 1916. The prosecution case depended entirely on the evidence of Harry Dixon. Quinn was refused leave to appeal in July 1957.

The Criminal Cases Review Commission referred the conviction to the Court of Appeal under section 9(1) of the Criminal Appeal Act 1995. Quinn sought to adduce a later statement from Jamieson, who had bought the lead, that Quinn was not the man present with Dixon during that transaction. The central issue was whether the court should receive that fresh evidence under section 23 of the Criminal Appeal Act 1968, and, if so, whether the conviction was unsafe.

1. Appeal allowed; conviction quashed. The court received Jamieson's fresh evidence and concluded that the conviction was unsafe.

2. Section 23 of the Criminal Appeal Act 1968 gives the court a discretionary power to receive evidence not adduced at trial where necessary or expedient in the interests of justice. The matters in section 23(2), including whether there is a reasonable explanation for the failure to adduce the evidence, are matters to which particular regard must be had. They are not cumulative conditions precedent.

3. The evidence was capable of belief, admissible, and capable of founding an allowed appeal. There was at least a potentially reasonable explanation for its absence at trial, given the timing and uncertainty surrounding Jamieson's proceedings and the appellant's limited access to lawyers. In any event, even assuming that no reasonable explanation had been shown, the court would receive the evidence after weighing all the circumstances.

4. Jamieson's evidence was credible and materially undermined Dixon, whose evidence was the entire prosecution case. The Crown properly accepted that, if the evidence were admitted, it would not seek to uphold the conviction. The court therefore concluded that the appellant's conviction was unsafe.

5. The separate treatment of Jamieson and Miller in the magistrates' court did not itself make Quinn's trial unfair. The caution discussed in R v Ditch (1969) 53 Cr.App.R 627 did not prevent receipt of evidence in a proper case; admissibility remained fact-sensitive. Although historic referrals should be exceptional, this was a rare case in which dismissal would compound a miscarriage of justice.

• Court of Appeal (Criminal Division) — on a Criminal Cases Review Commission reference, allowed the appeal and quashed the conviction: [2004] EWCA Crim 3026.

• Court of Criminal Appeal — refused Quinn leave to appeal against conviction and sentence on 8 July 1957.

• Cumberland County Quarter Sessions — on 27 March 1957, convicted Quinn of receiving stolen goods under section 33(1) of the Larceny Act 1916.