R v L

Under Criminal Appeal Act 1968, section 23, a defendant seeking to rely on fresh evidence must show that admission of it is expedient in the interests of justice and that it could rationally affect the safety of the conviction. An appeal is not ordinarily a means of advancing, after conviction, a defence which the defendant knowingly chose not to advance at trial. That principle applies to defendants under 18 where they had sound cognitive functioning and a fair opportunity to put their case. The court may test safety by asking whether the evidence could reasonably have affected a rational jury’s verdict.

The applicant, aged 15, was convicted by a jury at the Central Criminal Court of murdering another 15-year-old outside a school. His trial case was that he was neither the assailant nor at the scene.

After conviction, and before sentence, he admitted that he had stabbed the victim. He maintained that he had not intended death or really serious injury. The sentencing judge treated the admission as mitigation and reduced the minimum term from 16 to 14 years.

The applicant sought leave to adduce his later statement and psychological evidence as fresh evidence. He contended that the conviction for murder was unsafe and that the sentence gave insufficient credit for the late admission. The central issue was whether the fresh material could rationally undermine the jury’s finding of intent to cause really serious injury.

1. The court refused leave to adduce the proposed fresh evidence and refused leave to appeal against conviction. Applying section 23 of the Criminal Appeal Act 1968, it was not expedient in the interests of justice to admit the evidence. The conviction was safe.

2. The applicant was 15, had sound cognitive functioning, no identified mental disorder, experienced legal representation and familiarity with the criminal justice system. The court accepted for present purposes that he may have followed his father’s advice to deny the offence. But he knew what he had done and the available choices. His decision not to admit the stabbing or give evidence at trial remained his own. An appeal could not ordinarily be used to obtain a second opportunity to run the alternative manslaughter case deliberately withheld at trial.

3. In any event, the later account was incapable of belief insofar as it denied an intention to cause grievous bodily harm. It was inconsistent with the planned attack, the pursuit of the fleeing victim, the eyewitness accounts, and three penetrating stab wounds, including a 13-centimetre wound driven through a rib. The court accepted that the applicant may not have intended death, but held that the proposed evidence could not displace the jury’s properly directed finding of at least an intent to cause really serious injury.

4. Applying Pendleton [2001] UKHL 66, the court concluded that the material could not reasonably have affected the verdict of a rational jury.

5. The application for leave to appeal against sentence was also dismissed. The judge had properly increased the young-offender starting point to reflect the aggravating features and had given ample credit, by reducing the minimum term by two years, for the very late admission. A 14-year minimum term was not arguably excessive.

• Court of Appeal (Criminal Division) In [2019] EWCA Crim 1326, the court refused leave to adduce fresh evidence, refused leave to appeal against conviction, and dismissed the sentence application.
• Central Criminal Court A jury convicted the applicant of murder on 30 June 2017. The judge ordered detention during His Majesty’s pleasure with a 14-year minimum term, having allowed a two-year reduction for the post-conviction admission.