Binfield, R v

Fresh evidence admitted under section 23 of the Criminal Appeal Act 1968 will not make a conviction unsafe unless it materially assists the appellant or undermines the evidence supporting the verdict. A computer-generated VAT registration certificate must be assessed by reference to the data held when it was generated. A certificate generated after deregistration, and therefore lacking current return-period data, cannot cast doubt on the information that would have appeared at the time relevant to the charge.

The appellant, an accountant, was convicted at Chester Crown Court of taking steps with a view to the fraudulent evasion of VAT, contrary to section 72(1) of the Value Added Tax Act 1994. The alleged steps included failing to submit a VAT return by 7 June 2015.

He appealed against conviction and sought to adduce a VAT 4 registration certificate received on the day of conviction. He contended that its non-disclosure undermined the prosecution evidence concerning the due date for the first VAT return and called the reliability of HMRC digital records into question. The central issue was whether that fresh evidence made the jury’s verdict unsafe.

1. Appeal dismissed. The court admitted the appellant’s fresh evidence, and the Crown’s responsive evidence, under section 23 of the Criminal Appeal Act 1968. The parties agreed, and the court accepted, that the appeal could not properly or justly be determined without considering it.

2. The VAT 4 certificate did not assist the appellant. It had been generated in October 2018 after an HMRC officer used the VISION system to test whether the certificate function still operated. The resulting certificate was sent directly to the company unexpectedly. Its provenance did not disclose suppression, non-disclosure or other wrongdoing by HMRC.

3. A VAT 4 certificate was a computer-template report populated with the data held when it was requested. By October 2018 the company had been deregistered. There was therefore no data for a future VAT return period to populate the certificate, although the standard template continued to state that such details were included.

4. The absence of a return-period date from the 2018 certificate did not bear on what the HMRC system would have shown before the relevant 2015 return period. The fresh material was consistent with the evidence accepted by the jury concerning when the first return was due, and positively supported it. It did not undermine the digital records relied on at trial.

5. Accordingly, the court could not say that the verdict was unsafe. The conviction remained undisturbed.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 1812, the court admitted fresh evidence under section 23 of the Criminal Appeal Act 1968 and dismissed the appeal against conviction.
• Crown Court at Chester: On 14 November 2018, the appellant was convicted by a jury of taking steps with a view to the fraudulent evasion of VAT. On 10 December 2018, he received 16 months’ imprisonment, suspended for 18 months.