Robinson, R v

Under section 23 of the Criminal Appeals Act 1968, fresh evidence should be received only where that is necessary or expedient in the interests of justice. The court must consider whether it could affect the safety of the conviction and whether its absence at trial has a reasonable and persuasive explanation.

A jury direction on self-defence remains correct where it preserves the questions of necessity and reasonable force, and distinguishes defence from retaliation. A judge may explain evidence that a defendant panicked, including its possible meanings, provided that panic is not treated as an additional condition of self-defence and the jury is returned to the basic legal test.

The applicant had been convicted of murder at Nottingham Crown Court in 2007 and sentenced to life imprisonment with a minimum term. More than seven years after the conviction, he sought an extension of time, permission to adduce expert CCTV evidence, and leave to appeal.

He contended that a new analysis of poor-quality footage supported self-defence and that the trial judge's references to panic confused the jury's self-defence direction. The Crown opposed each application. The central issues were whether the proposed evidence could render the conviction unsafe and whether the summing-up misdirected the jury.

1. All applications were dismissed. The court refused the extension of time, permission to adduce fresh evidence, and leave to appeal against conviction.

2. The court applied section 23 of the Criminal Appeals Act 1968. The decisive question was whether receiving the evidence was necessary or expedient in the interests of justice. The proposed expert analysis did not arguably affect the safety of the conviction. It was an additional interpretation of footage which the jury had already seen and could assess for itself. Much of it concerned matters already supported by trial evidence. The potentially new suggestion that the deceased might have armed himself was speculative, contrary to the trial evidence, and did not address the confrontation in which the fatal injuries were inflicted.

3. The court also found no reasonable and persuasive explanation for not obtaining the analysis at trial. The same footage had been available to the defence and jury. The solicitors had known of its potential relevance, and the relevant analytical processes were available at the time. The absence of an arguable effect on safety was fatal to the fresh-evidence application and the first ground of appeal.

4. The self-defence directions, read as a whole, were correct. The judge had accurately directed that force must be necessary and no more than reasonable, and that self-defence had to be distinguished from retaliation. The applicant had repeatedly relied on panic to explain why he took the knife. It was therefore proper to explain that panic could have different meanings. Those examples did not make extreme panic a condition of self-defence. The judge returned the jury to the basic test, both in the summing-up and when repeating the directions. The second ground did not undermine the conviction's safety.

• Court of Appeal (Criminal Division) In [2017] EWCA Crim 923, the court dismissed the applications for an extension of time, fresh evidence, and leave to appeal against conviction.
• Nottingham Crown Court On 14 February 2007, the applicant was convicted of murder and sentenced to life imprisonment with a specified minimum term.