Singh, R v

Under section 23 of the Criminal Appeal Act 1968, fresh evidence should be received only where the statutory conditions are met. The applicant must show that the evidence is capable of belief, may afford a ground for allowing the appeal, would have been admissible at trial, and has a reasonable explanation for not being adduced there.

Evidence available at trial cannot ordinarily be reserved for a post-conviction application because it was not actively pursued. A tactical decision not to call available evidence will usually defeat any claim of a reasonable explanation. Fresh representatives must normally obtain the account of former representatives, and privilege will generally require waiver where fresh evidence is advanced.

The applicant was convicted at the Central Criminal Court of possessing criminal property, namely cash of just under £250,000, and was sentenced to three years’ imprisonment. He sought an extension of 21 months to apply for leave to appeal against conviction.

He applied to adduce fresh evidence said to support his account that he expected a lawful £43,000 property deposit from India through a Hawala transfer system, and that the much larger sum placed in his car had been delivered by mistake. The proposed evidence included statements from the alleged purchaser, a purported Hawala agent, the applicant’s brother and the applicant.

The central issues were whether the evidence met the conditions for admission under section 23 of the Criminal Appeal Act 1968, and whether it could undermine the safety of the conviction.

1. Application refused. The court declined to receive the proposed fresh evidence under section 23 of the Criminal Appeal Act 1968. The statutory conditions were cumulative. The evidence had to appear capable of belief, afford a ground for allowing the appeal, have been admissible at trial, and have a reasonable explanation for its absence from the trial.

2. There was no reasonable explanation for the failure to call the evidence. The alleged purchaser and the proposed property transaction were known to the applicant and his advisers at trial. The defence had made a tactical choice to rely on other witnesses and documents, and specifically not to deploy a legal notice that created difficulties for the applicant’s changing account of the amount expected. Evidence available at trial cannot properly be held back until after conviction on the basis that it was not actively pursued.

3. The evidence was also not credible and could not render the conviction unsafe. The purported Hawala agent refused to produce the records necessary to test his account. The purchaser’s account was unsatisfactory and did not explain material inconsistencies. Even if accepted, the evidence did not answer the suspicious circumstances of delivery, the evidence that the applicant was told the sum was £250,000, or the changes in his account.

4. The court also applied R v McCook [2014] EWCA Crim 734. Fresh representatives must normally consult former representatives, even absent criticism of them. In fresh-evidence cases, privilege will ordinarily need to be waived so that the court can assess the statutory explanation for the evidence not having been called. The court gave further procedural recommendations for single judges managing fresh-evidence applications.

• Court of Appeal (Criminal Division): in [2017] EWCA Crim 466, refused the application for an extension of time and leave to appeal based on proposed fresh evidence.
• Central Criminal Court: the applicant was convicted on 12 September 2014 of possessing criminal property and sentenced on 22 January 2015 to three years’ imprisonment.