Walker, R v

Under Criminal Appeal Act 1968, section 23, fresh evidence should not be admitted unless it is necessary or expedient in the interests of justice. The court must consider, among other matters, its credibility, admissibility and capacity to afford a ground for allowing the appeal.

Deliberate public use of a firearm will ordinarily require immediate custody. That approach is not absolute. In a truly exceptional case, strong personal mitigation, reduced culpability and the absence of any useful public interest in further detention may justify a non-custodial disposal.

The appellant was convicted at Minshull Street Crown Court of possessing a firearm with intent to cause fear of unlawful violence and of affray. She had taken an air rifle and air pistol from her home after believing that local youths were responsible for a campaign of harassment against her family. She discharged the pistol near one youth’s feet.

She sought leave to appeal against conviction on the basis of two later statements from her milkman. She also appealed against the six-month custodial sentence imposed for the firearm offence. The central issues were whether the proposed evidence could render the convictions unsafe and whether the circumstances made the sentence manifestly excessive.

1. Leave to appeal against conviction was refused. Applying section 23 of the Criminal Appeal Act 1968, the proposed fresh evidence was of questionable value because the statements were inconsistent and uncertain. On the assumption that they were true, they did not show that the complainant had damaged or vandalised the appellant’s property. At most, they bore on his credit and were inadmissible for that purpose save in exceptional circumstances, which were absent.

2. The statements could not have affected the verdicts. The jury had heard the competing accounts and had to decide what occurred when the firearm was discharged and whether the appellant acted in lawful self-defence. The new material shed no light on either issue. The convictions were therefore not unsafe.

3. The appeal against sentence was allowed. Deliberate discharge of a firearm in a public place normally calls for a substantial custodial sentence. The court explained that the approach in R v Avis [1998] 1 Cr App R 420 was expressed in qualified terms and did not create an inflexible rule.

4. This was an exceptional case. The appellant had no previous convictions, had made a valuable contribution as a teacher, had experienced sustained harassment at home, and was suffering an adjustment disorder which reduced, but did not remove, her culpability. The assessed risks of reoffending and harm were low. A non-custodial sentence had been open to the Recorder, and continued imprisonment served no useful public interest.

5. The court quashed the six-month sentence for the firearm offence and substituted a conditional discharge for 12 months.

• Court of Appeal (Criminal Division) In [2005] EWCA Crim 1282, refused leave to appeal against conviction, granted leave to appeal against sentence, and substituted a 12-month conditional discharge for the six-month sentence on the firearm count.
• Minshull Street Crown Court, Manchester Following trial before Recorder Browne, the appellant was convicted of possessing a firearm with intent to cause fear of unlawful violence and affray. She received six months’ imprisonment on the firearm count and one month concurrently on the affray count.