O'Hare, R. v

On an application to adduce fresh evidence, the court must consider the statutory matters in Criminal Appeal Act 1968, section 23, while retaining the overriding interests-of-justice discretion. Evidence which is not capable of belief cannot impugn the safety of a conviction and will not afford a basis for allowing an appeal.

The court further indicated that the modern hearsay code in the Criminal Justice Act 2003 may be relevant on appeal even where the trial pre-dated it. However, the interests-of-justice gateway in section 114 cannot be used so as to deprive the separate unavailability provisions in section 116 of practical effect.

The applicant was convicted at Liverpool Crown Court of wounding with intent and sentenced to four years’ imprisonment. He sought an extension of time and leave to appeal against conviction.

The sole proposed ground was fresh evidence that his nephew, David Bellamy, had confessed to wounding the complainant. Bellamy declined to provide a statement or be interviewed, and did not attend the hearing. The proposed evidence consisted principally of accounts by family members of alleged confessions at a prison visit and a family meeting.

The central issues were whether that material should be received as fresh evidence under section 23 of the Criminal Appeal Act 1968, whether hearsay was admissible under the later statutory code, and whether the conviction was unsafe.

1. The court granted an extension of time but refused leave to appeal against conviction. The proposed fresh evidence was not capable of belief and therefore did not impugn the safety of the conviction.

2. Section 23 of the Criminal Appeal Act 1968 required the court to consider, among other matters, whether the evidence was capable of belief, might afford a ground for allowing the appeal, would have been admissible at trial, and had a reasonable explanation for not having been adduced. The court retained an overriding discretion to receive evidence where necessary or expedient in the interests of justice. In this case, failure of the credibility requirement was effectively decisive.

3. The alleged confessions had not been substantiated by Bellamy. His only reported response suggested that he was being set up. The accounts came from family members and arose from a meeting arranged to secure the applicant’s release. They also conflicted with the substantial trial evidence identifying the applicant as a participant in the attack. The court held that the evidence bore the hallmarks of a concocted and contrived account.

4. The court considered that the later hearsay code in the Criminal Justice Act 2003 could be applied despite the trial having pre-dated it. Had the evidence been credible, its former common-law inadmissibility would not necessarily have been fatal. The point did not strictly arise, however, because the evidence failed the credibility requirement.

5. The court nevertheless stated that section 114 could not be construed so broadly that it rendered section 116 nugatory. Bellamy’s absence did not satisfy section 116, and secondhand evidence of his alleged statement could not be admitted through section 114 merely to circumvent that position.

1. Court of Appeal (Criminal Division) — Granted an extension of time but refused leave to appeal against conviction: [2006] EWCA Crim 2512.
2. Crown Court at Liverpool — On 19 November 2004, the applicant was convicted by a majority of wounding with intent and sentenced to four years’ imprisonment.