Moore, R v

Fresh evidence relied on in a criminal appeal must be assessed in its proper evidential context. The appellate court may test an asserted eye-witness account against established facts and the witness’s earlier accounts. It need not assess the evidence in isolation or decide solely on its impression of the witness. Where substantial and unexplained inconsistencies show that the fresh evidence is not capable of belief, the conditions for its admission under Criminal Appeal Act, section 23, are not met. If the existing evidence overwhelmingly supports the verdict, the conviction remains safe and the appeal should be dismissed.

The appellant and his co-defendant were convicted at Chelmsford Crown Court of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. Each admitted being present during the assault but blamed the other. An eye-witness, M, gave evidence that both men participated in the attack.

On appeal against conviction, the appellant relied on fresh evidence from Kayleigh Johnson, formerly Knightsbridge. She said that the co-defendant alone assaulted the complainant. The court heard her evidence de bene esse and considered whether it satisfied the admissibility requirements of section 23 of the Criminal Appeal Act.

1. Appeal dismissed. The court declined to admit the proposed fresh evidence and held that the conviction was safe.

2. The evidence of Kayleigh Johnson was not to be assessed in isolation. The proper approach was to test her credibility against the established facts and her own earlier accounts.

3. Her account contained serious inconsistencies. In particular, it conflicted with her earlier statement about a request to film the assault, whether her telephone camera had operated, and whether she spoke to the co-defendant after the assault. It also conflicted with the appellant’s initial account to his solicitors, which indicated that she had filmed the incident.

4. Those inconsistencies could not be explained by mistake, forgetfulness or confusion. The court did not find her evidence capable of belief. The criteria for admission under section 23 of the Criminal Appeal Act were therefore not fulfilled.

5. The evidence that both defendants joined in the attack was overwhelming. There was no doubt as to the safety of the conviction.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed in [2010] EWCA Crim 224.

• Crown Court at Chelmsford: On 28 November 2008, the appellant and his co-defendant were convicted of causing grievous bodily harm with intent. On 30 January 2009, the appellant was sentenced to four years’ detention in a young offender institution. There was no appeal against sentence.