Downton, R v

Fresh grounds of appeal should ordinarily be lodged with the notice of appeal. A defendant seeking later to vary the grounds must apply in writing, address the factors relevant to variation and any extension of time, and overcome a high hurdle. Leave will be refused where the proposed grounds rest on a misunderstanding of evidence, raise matters already fairly left to the jury, or disclose no arguable unfairness in the summing-up or safety of the convictions.

The applicant was tried before Jay J and a jury with two co-accused for murder, aggravated burglary, possession of a firearm with intent to cause fear of violence, and two commercial burglaries. He pleaded guilty to one commercial burglary and was convicted of the remaining offences. He received life imprisonment for murder with a minimum term of 34 years.

After trial, he dismissed his legal representatives and advanced extensive grounds challenging disclosure, police conduct, CCTV and cell-site evidence, joint-trial prejudice, and the safety of his convictions. The single judge refused leave. Counsel later sought leave to add grounds alleging that CCTV vehicle-identification evidence had been inaccurately presented and that the judge had inadequately summed up the defence case.

1. The applications were refused. The court refused an extension of time, leave to appeal, and permission to vary the grounds of appeal.

2. The applicant’s original grounds did not cast doubt on the safety of the convictions. There was no evidential basis for allegations that police had manipulated evidence or that the applicant’s lawyers had acted improperly. Complaints about disclosure, clothing evidence, and evidence from a co-accused concerned matters properly admitted and fairly left to the jury.

3. The cell-site evidence supplied a legitimate defence point because it appeared inconsistent with the applicant’s phone arriving at David’s Lane at the time alleged by the prosecution. It did not, however, positively exonerate him. The jury were entitled to assess it with the remaining circumstantial evidence.

4. The proposed fresh ground concerning CCTV timing rested on a misunderstanding. The relevant CCTV clock was 53 minutes, rather than one hour, inaccurate. The vehicle could therefore properly be treated as leaving the scene at 03:04. The judge had fairly identified the defence point about the cell-site evidence and fully and fairly summed up the defence case.

5. Applying R v James (Wayne George) [2018] EWCA Crim 285, fresh grounds should generally be included in the notice of appeal. A later application must explain the relevant factors in writing, and the hurdle for variation is high. The applicant’s proposed grounds did not surmount it, particularly as they were substantially based on a misunderstanding of the evidence and raised points available at trial.

• Court of Appeal (Criminal Division): refused the applicant’s applications for an extension of time, leave to appeal against conviction, and leave to vary his grounds of appeal: [2019] EWCA Crim 1235.

• Crown Court: following trial before Jay J and a jury, the applicant was convicted of murder, aggravated burglary, possession of a firearm with intent to cause fear of violence, and one commercial burglary. He had pleaded guilty to the other commercial burglary. He was sentenced to life imprisonment for murder with a minimum term of 34 years, with concurrent determinate sentences for the remaining offences.