Rogers, R v

On a sentencing appeal, the Court of Appeal is a court of review. Fresh evidence is ordinarily admissible only where the interests of justice, assessed under s. 23 of the Criminal Appeal Act 1968, justify its reception. Evidence that could and should have been deployed below, particularly alternative expert evidence, will rarely satisfy that test.

The limited exception for updated post-sentence information does not permit a party to reopen factual or expert issues determined at sentence. Where disputed facts are relied on as exceptional circumstances to avoid a statutory minimum sentence, the appropriate procedure is a Newton hearing. The Crown bears the criminal burden of disproving the defendant’s account, but an accepted account does not itself establish exceptional circumstances.

Three sentencing appeals were heard together because each raised issues about fresh evidence under s. 23 of the Criminal Appeal Act 1968.

• Georgina Rogers appealed a destruction order for a dog after an aggravated dangerous-dog offence. She sought to adduce a later expert report contending that the dog could safely be controlled.
• Tapecrown Limited, convicted of environmental-permitting offences, sought to challenge a remediation order and the refusal of more time for compliance. It also sought to rely on a further expert report about treating waste on site.
• Paul Beaman appealed a five-year minimum sentence for possessing a disguised firearm. He contended that disputed facts relevant to exceptional circumstances should have been resolved by a Newton hearing.

The central issues were the scope of the fresh-evidence jurisdiction and the proper sentencing procedure where exceptional circumstances are asserted.

Disposition

1. The court dismissed Rogers’s appeal, refused all of Tapecrown’s applications, and allowed Beaman’s appeal to the extent of reducing his sentence from five years to two and a half years’ imprisonment.
2. Section 23 of the Criminal Appeal Act 1968 applies generally to sentencing appeals. The court is a reviewing court, not a forum for re-presenting a case that could have been put below. It must give specific attention to the statutory factors, including reliability, potential effect on the appeal, admissibility, and a persuasive explanation for the earlier omission.
3. Updated post-sentence information may exceptionally be considered without formal reliance on section 23, such as prison progress or information strengthening mitigation. That exception is narrow. It does not extend to fresh expert evidence intended to challenge a sentencing finding that should have been addressed at the original hearing.
4. In Rogers’s case, the court admitted material showing that the original expert evidence may have been less reliable than the sentencing judge understood. It refused the later alternative expert evidence because it was available below, was not sufficiently reliable, and could not displace the judge’s unchallengeable findings that the owner could not control the dog. Under ss. 4(1A) and 4(1B) of the Dangerous Dogs Act 1991, those findings meant that the dog could not be treated as posing no danger to public safety.
5. In Tapecrown’s case, the judge was entitled under Regulation 44 of the Environmental Permitting (England and Wales) Regulations 2010 to reject uncertain and insufficiently developed proposals for on-site recovery. The waste hierarchy did not require further indulgence where environmental effects, feasibility, past unlawful conduct, and the company’s failure to honour its agreement with the Environment Agency justified removal.
6. Where exceptional circumstances are asserted to avoid a minimum firearm sentence, disputed facts should be dealt with through a Newton-hearing procedure. The asserted facts should be recorded in writing, the prosecution should state whether they are agreed, and the defendant may elect a hearing if they are disputed. Here no hearing was sought below and section 23 could not be used to obtain one on appeal. On the overall facts, however, exceptional circumstances existed and justified departure from the statutory minimum.

• Court of Appeal (Criminal Division) — [2016] EWCA Crim 801. The court dismissed Rogers’s appeal, refused Tapecrown’s applications for leave and fresh evidence, and allowed Beaman’s sentence appeal by substituting two and a half years’ imprisonment.
• Crown Court at Wood Green — On 16 June 2015, a community order and a destruction order were imposed following Rogers’s guilty pleas under the Dangerous Dogs Act 1991.
• Crown Court at Oxford — A remediation order was made against Tapecrown on 24 September 2015. A subsequent application to extend the time for compliance was refused on 17 November 2015.
• Crown Court at St Albans — On 17 November 2014, Beaman was sentenced to five years’ imprisonment for possession of a disguised firearm.