Chorlton, R v

Fresh evidence should be admitted under section 23 of the Criminal Appeal Act 1968 only where it is necessary or expedient in the interests of justice, having particular regard to the statutory considerations. Evidence which does not materially alter the evidential picture before the jury, or provide a ground for concluding that the conviction is unsafe, cannot justify an appeal against conviction.

An inadvertent misdescription in a summing up will not render a conviction unsafe where it does not concern the issue the jury had to decide and the jury were otherwise aware of the correct evidence.

The applicant was convicted at Bolton Crown Court of wounding with intent after ammonia was thrown or sprayed into the victim’s face, causing the loss of sight in one eye. The central issue at trial was whether a witness had correctly recognised the applicant as the passenger who carried out the assault.

He sought an extension of time and leave to appeal, relying on proposed fresh evidence about an earlier alleged sighting by the identifying witness and about a nightclub doorman who could not identify him. On renewal, he also contended that the trial judge’s occasional references to acid rather than ammonia in the summing up made the conviction unsafe.

1. The court refused both the extension of time and leave to appeal. The proposed appeal was not arguable and the conviction was safe.
2. Section 23 of the Criminal Appeal Act 1968 required the court to consider whether receiving fresh evidence was necessary or expedient in the interests of justice, with particular regard to its apparent credibility, potential to afford a ground for allowing the appeal, admissibility, and any explanation for its earlier absence.
3. The further material did not justify admitting evidence or disturbing the verdict. The identifying witness had accepted at trial that she might have been mistaken about the earlier occasion on which she said she had seen the applicant. The proposed employment evidence and the applicant’s sister’s evidence went principally to the timing of that earlier sighting, rather than whether it occurred. The nightclub doorman’s inability, years later, to identify the applicant did not cast arguable doubt on the identification evidence received by the jury.
4. The court agreed with the single judge that the additional material did not alter the evidential matrix before the jury and was incapable of rendering the conviction unsafe.
5. The trial judge had on a few occasions mistakenly referred to acid instead of ammonia. That error did not affect safety. The nature of the substance was not in issue; identification was. The jury knew from the opening and agreed facts that the substance was ammonia, and the inadvertent references could not have affected their deliberations on identification.

• Court of Appeal (Criminal Division): refused the applicant’s renewed applications for an extension of time and for leave to appeal against conviction: [2019] EWCA Crim 176.
• Bolton Crown Court: convicted the applicant on 15 January 2016 of wounding with intent. No citation is stated.