O' Shea v R.

Fresh expert evidence should not ordinarily permit a second trial on a criminal charge. Where an expert was available before and during trial, the appellate court will be especially cautious before receiving later evidence that could have been deployed then.

Under section 23 of the Criminal Appeal Act 1968, evidence which merely permits a different assessment of the trial evidence does not suffice. It must be credible and capable of creating a realistic doubt whether a properly directed reasonable jury would have convicted on the particular transactions charged. General indications of fraud elsewhere do not make a conviction unsafe where the evidence connecting the appellant to the charged transactions remains compelling.

The appellant had been convicted by a jury before HH Judge Eccles of two common-law counts of inciting the distribution of indecent photographs of children and three counts of attempting to incite such distribution contrary to section 1(1) of the Criminal Attempts Act 1981. The prosecution relied principally on records from the Landslide internet subscription system, including the appellant’s personal, credit-card, email, password and internet-service-provider details.

Permission was granted to bring a substantially late appeal. The appellant sought to adduce fresh computer-expert evidence said to show widespread fraud and identity theft in the Landslide records, and contended that his own transactions had been fraudulently created. The central issue was whether the proposed evidence should be received under section 23 of the Criminal Appeal Act 1968 and, if so, whether it rendered the convictions unsafe.

1. Appeal dismissed. The court refused to admit the proposed fresh evidence and was wholly satisfied that the convictions were safe.

2. Section 23 of the Criminal Appeal Act 1968 does not provide an opportunity for a second trial with a different expert. Following Martin T [2008] EWCA Crim 3229, evidence available at trial will only exceptionally justify appellate intervention. It must do more than permit a different assessment of the expert evidence; it must undermine the fundamental basis of the verdict.

3. The court rejected as incapable of belief the expert’s assertion that a user could make Landslide record a Freeserve proxy-server address without accessing that server. It was unsupported by reasoning or material, conflicted with the practical operation of internet addressing, and concerned an issue addressed by expert evidence at trial. The expert’s availability at trial reinforced the need for caution.

4. The correct safety inquiry was objective: whether the credible new evidence could have led a properly directed reasonable jury to return different verdicts. The question was whether there was a realistic doubt that the appellant made the transactions charged, not whether fraud may have occurred in other Landslide transactions.

5. There was no evidential basis for the proposed fraudulent-webmaster theory. It did not explain the use of the appellant’s correct personal and card details, email address, password variants, Freeserve addresses, confirmation emails, or his failure to challenge the relevant card debits. The additional evidence concerning other users, a customer database and other sites did not create doubt about the charged transactions.

6. Further and in any event, there was no reasonable explanation for failing to call the expert at trial. The court therefore refused the application to receive the evidence and dismissed the appeal.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 2879, the court refused to receive the proposed fresh evidence and dismissed the appeal against conviction.
• Crown Court: Before HH Judge Eccles, the appellant was convicted on 18 October 2005 of two counts of common-law incitement and three counts contrary to section 1(1) of the Criminal Attempts Act 1981. On 15 November 2005 he received concurrent five-month sentences of imprisonment.