Cope, R. v

A very substantial extension of time to seek leave to appeal against conviction requires a very good reason. Proposed fresh expert evidence will not afford a ground for allowing an appeal under Criminal Appeal Act 1968, section 23 where it does not arguably cast doubt on the safety of the conviction and there is no reasonable explanation for failing to rely at trial on available expert evidence. The court will only rarely admit fresh evidence from a new expert in those circumstances.

The identity of the person to whom a device was handed over is irrelevant where the charge concerns deliberate deletion of material from the device, rather than failure to make it available to a police officer.

The applicant was convicted at Northampton Crown Court on 18 August 2016 of breaching a Sexual Harm Prevention Order by deleting internet history from a mobile phone. He was sentenced to 12 months’ imprisonment and was acquitted of five other alleged breaches of the order.

More than three years later, he sought an extension of time and leave to appeal. He wished to rely on a new digital-forensic report which raised concerns about the police handling of the phone and showed internet-related activity after seizure. He also contended that the phone had not been lawfully seized because it was handed to a civilian police employee.

The issue was whether the delay should be excused and whether the proposed fresh evidence could found an arguable challenge to the safety of the conviction.

1. The court refused both the extension of time and leave to appeal. An extension of three years and 12 days required a very good reason. Although the court considered the grounds on their merits, the proposed appeal was wholly without merit.

2. The central issue at trial was whether the applicant had deliberately deleted internet history from his phone. The prosecution expert had accepted that she could not be definite, but gave the opinion that the pattern of deleted and retained data, drawn from two browsers, indicated deletion by the user. The jury had been properly directed on that issue and was able to assess the applicant’s evidence and the alleged lies he told when providing the phone.

3. The later report did not arguably cast doubt on the safety of the conviction. It raised concerns about the phone’s handling after seizure, including later internet-related activity, but did not suggest that the deletions were automatic or that they were made only while the police possessed the phone. It therefore did not support a case that the applicant had been set up.

4. Applying section 23 of the Criminal Appeal Act 1968, the proposed evidence afforded no ground for allowing an appeal. There was no reasonable explanation for the failure to deploy expert evidence at trial: the defence had obtained an expert report but had not relied on it. The court said that it would only rarely entertain a later application to adduce evidence from a new expert in such circumstances.

5. The civilian status of the employee to whom the phone was handed was irrelevant. The conviction concerned deletion of material, not a failure to make the phone available to a police officer.

• Court of Appeal (Criminal Division) In [2020] EWCA Crim 1086, refused the applicant’s renewed application for an extension of time and for leave to appeal against conviction.
• Northampton Crown Court On 18 August 2016, convicted the applicant of one breach of a Sexual Harm Prevention Order and sentenced him to 12 months’ imprisonment. He was acquitted of five other counts.