Singh, R v

Fresh evidence will not justify an appeal against conviction unless it satisfies the statutory considerations in section 23 of the Criminal Appeal Act 1968. The court must assess, in particular, whether the evidence is capable of belief, may afford a ground for allowing the appeal, would have been admissible at trial, and was not adduced earlier for a reasonably explained reason.

Unreliable hearsay accounts of an alleged recantation, unexplained delay in producing them, uncertainty over a witness’s identity, and ambiguous recorded conversations may prevent the evidence from meeting that standard. The court must then assess safety by reference to the trial evidence as a whole, including evidence independent of the challenged witness.

The appellant was convicted by a jury at Isleworth Crown Court of wounding with intent to do grievous bodily harm. The prosecution case was that he and others arrived in a white van, armed themselves, and participated in an attack outside a public house. Several witnesses identified him, and he was stopped in the van shortly after the attack, in which a sword and an axe were found.

More than three years late, the appellant sought permission to appeal and to rely on fresh evidence. He contended that a prosecution witness, Ramandeep Johal, had not been present and had later admitted giving false evidence. He also relied on prison telephone conversations said to show that a man called Gurinder had not been present and had been asked to give false evidence.

The central issue was whether the proposed evidence met the requirements for reception under section 23 of the Criminal Appeal Act 1968 and, if not, whether the conviction was unsafe.

1. The appeal against conviction was dismissed. The court granted the substantial extension of time, permission to appeal, and permission to rely on fresh evidence, but concluded that the proposed material did not undermine the safety of the conviction.

2. Under section 23 of the Criminal Appeal Act 1968, the court was required to consider whether fresh evidence was capable of belief, might afford a ground for allowing the appeal, would have been admissible at trial, and had not been adduced earlier for a reasonably explained reason. The decisive issues were capability of belief and whether the evidence could assist the appeal.

3. The alleged hearsay confessions by Ramandeep Johal, reported by Sukbir Singh Ghodra and Makhan Singh, were incapable of belief. The court found Ghodra's account unconvincing. Makhan Singh's evidence appeared to fill a gap in the appellant's case and was produced after an unexplained delay, despite his claimed early disclosure of it to the appellant. The asserted conspiracy was also difficult to reconcile with the evidence that Johal had himself been an intended target and with evidence not implicating the alleged conspirators.

4. The telephone transcripts concerning Gurinder were ambiguous and formed only fragments of wider conversations. There was uncertainty whether the speaker was the Gurinder referred to at trial, concerns about his credibility, and inconsistent accounts in the exchanges. The material therefore did not satisfy section 23(2)(a) or (b) and, because the speaker's identity could not be established, would not have been admissible at trial under section 23(2)(c).

5. The conviction did not depend solely on identification or upon Johal's evidence. One witness said that the appellant had not identified the appellant, while other evidence connected him to the white van shortly before and shortly after the assault, when a sword was found inside it. Taken as a whole, the fresh evidence did not render the conviction unsafe.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 1664, the court granted an extension of time and permission to appeal and adduce fresh evidence, but dismissed the appeal against conviction.

• Crown Court at Isleworth: On 4 August 2010, a jury convicted the appellant of wounding with intent to do grievous bodily harm.