Aslam, R v

Under section 23 of the Criminal Appeal Act 1968, proposed fresh evidence must be assessed for credibility, admissibility, its capacity to afford a ground for allowing the appeal, and any reasonable explanation for its absence at trial. Evidence which was reasonably obtainable at trial, adds nothing material to the evidence heard by the jury, or rests on unverified assumptions will not provide an arguable basis for challenging the safety of a conviction.

An appellate disclosure order requires a sufficient factual foundation. Speculation that interview material was altered, or that undisclosed material may support a new defence case, is insufficient where the existing material gives no proper basis for that allegation.

The applicant was convicted at Birmingham Crown Court of conspiracies to fraudulently evade the prohibition on importing diamorphine and to supply it. He received concurrent sentences of 12 years’ imprisonment. No appeal was brought at the time.

Nearly four years later, he sought an extension of time and leave to appeal against conviction. He relied on further evidence about the accuracy of hotel CCTV timings, a later cell-site survey, and a statement obtained from Babar Qayyum in Pakistan. He also sought disclosure concerning Qayyum’s police interview. The central issues were whether the material could be received as fresh evidence under section 23 of the Criminal Appeal Act 1968, whether disclosure should be ordered, and whether there was an arguable basis for doubting the safety of the convictions.

1. The court refused the renewed applications for leave to appeal, an extension of time, and disclosure. None of the proposed material could arguably be received as fresh evidence under section 23 of the Criminal Appeal Act 1968, and no arguable ground was shown for treating the convictions as unsafe.

2. Mr Davies’s further statement did not materially add to the trial evidence. No contemporaneous check had established the accuracy of the hotel CCTV timings. His later assumption that the timings were accurate could not strengthen the point already fully available to the defence and the jury.

3. Mr Colwell’s later cell-site survey was reasonably obtainable at trial and did not undermine the contemporaneous prosecution evidence. It depended on assumptions about network configuration and was conducted four years after the relevant events. It showed only differing later results, not that the trial evidence was unreliable.

4. Qayyum’s statement did not positively support the proposed alternative case. The court also identified issues of credibility and of whether it could be admitted as hearsay under section 116 of the Criminal Justice Act 2003. It provided no foundation for alleging that the interview transcript had been improperly edited.

5. The disclosure requests rested on speculation. A court order could not properly be made without some sufficient basis for suspecting non-disclosure or interference with the interview recording. The prosecution case remained a strong circumstantial case, and granting an extension of time would serve no purpose.

• Court of Appeal (Criminal Division): The full court refused the renewed applications for leave to appeal, an extension of time and disclosure: [2019] EWCA Crim 1352.
• Court of Appeal (Criminal Division), single judge: The single judge had refused the applications on the papers.
• Crown Court at Birmingham: On 2 October 2013, the applicant was convicted of the two conspiracy counts. On 18 December 2013, he received concurrent terms of 12 years’ imprisonment. No citation was stated.