Ismailaj, R v

An exceptionally late criminal appeal requires a sufficient and properly evidenced explanation for the delay. An extension should not be granted where the proposed appeal, including one dependent on fresh evidence, has no prospect of success.

Under section 23 of the Criminal Appeal Act 1968, evidence is not received merely because it is credible and admissible. The court must consider all statutory factors. Fresh evidence which at most reinforces a peripheral factual discrepancy, does not establish a deliberate lie, and cannot affect the central issue of free will or the safety of the convictions, affords no ground for allowing an appeal.

The applicant was convicted in October 2012 of rape, offences connected with prostitution, assault, cruelty to a child and sexual assaults on a child. He was sentenced to 18 years’ imprisonment in January 2013.

More than five years after expiry of the ordinary time limit, he sought leave to appeal, an extension of time, and permission to adduce documentary fresh evidence under section 23 of the Criminal Appeal Act 1968. The material was said to establish that passport stamps showed movements by the adult complainant and her daughter between Albania, Spain and Greece.

The central questions were whether the extensive delay was sufficiently explained, whether the evidence should be received, and whether it could render the convictions unsafe.

1. All applications were refused. The applicant sought an extension of time of more than five years. He gave no sufficient explanation for much of the delay, for changing solicitors while relevant material was being obtained, or for the alleged inaction of later solicitors. A bare assertion that solicitors had failed to act for three years was inadequate. The court nevertheless considered the merits rather than deciding the matter solely on delay.

2. Applying section 23 of the Criminal Appeal Act 1968, the court accepted for present purposes that the proposed documentary evidence was capable of belief and would have been admissible. The other two statutory considerations were decisive. There was no reasonable explanation for failing to obtain the evidence at trial. The passport issue was part of the defence case, the passports were trial exhibits, and there was ample time during the trial to investigate the stamps after the point arose in cross-examination.

3. The evidence could not afford a ground for allowing the appeal. At its highest, it supplied an additional basis on which a jury might find the stamps genuine and the recorded journeys made. It did not establish that the complainant had deliberately lied, because her evidence left room for misunderstanding about the journeys. Nor could passport stamps show whether she travelled alone, voluntarily, or under compulsion. They therefore did not support the defence contention that she was free to come and go as she pleased.

4. The disputed journey was peripheral to the allegations concerning events in this country. It had no significant bearing on the complainant’s general credibility or on her evidence about the charged offences. In light of the jury’s acceptance of that evidence despite extensive challenge, the convictions could not be unsafe. It was neither necessary nor expedient in the interests of justice to receive the fresh evidence, and no purpose would be served by extending time for an appeal dependent on it.

• Court of Appeal (Criminal Division): refused the applications for an extension of time, fresh evidence and leave to appeal against conviction.

• Crown Court (not further identified): the applicant was convicted by a jury on 5 October 2012 and sentenced on 3 January 2013 to 18 years’ imprisonment.