Larkin, R. v

Fresh evidence will be admitted on a criminal appeal only where the interests of justice require it. The court must give particular consideration to whether the evidence is capable of belief, could afford a ground of appeal, would have been admissible at trial, and whether there is a reasonable explanation for its omission.

Evidence known to the defence before trial, without a reasonable explanation for its late production, will generally fail that test. Evidence which merely adds to material already used to challenge a witness’s credibility will not ordinarily cast a substantially new or different light on the case or render a conviction unsafe.

The applicant was convicted at the Crown Court at Sheffield of assault occasioning actual bodily harm and sentenced to three years’ imprisonment. He was acquitted of two sexual assault charges.

He sought leave to appeal against conviction on the basis of fresh evidence from Ms Robinson. The Court provisionally heard her oral evidence while considering whether it could be admitted. The evidence was said to undermine the complainant’s credibility and, potentially, the truth of her account.

The issues were whether the evidence was capable of belief, admissible under the Criminal Justice Act 2003, capable of affording a ground of appeal, and accompanied by a reasonable explanation for its absence at trial under the Criminal Appeal Act 1968.

1. The full court declined to admit Ms Robinson’s evidence and refused leave to appeal. The conviction was considered unarguably safe.
2. Under section 23 of the Criminal Appeal Act 1968, the overarching question is whether admission of fresh evidence is necessary or expedient in the interests of justice. The court must give particular consideration to the four matters in section 23(2): whether the evidence appears capable of belief, may afford a ground for allowing the appeal, would have been admissible below, and whether there is a reasonable explanation for failing to adduce it at trial.
3. There was no reasonable explanation for the failure to obtain Ms Robinson’s evidence. The applicant had identified her as a potential witness before trial, she was readily locatable, and reasonable efforts could have secured her evidence in time.
4. The Court found Ms Robinson wholly unreliable because of serious inconsistencies about the timing, sequence and content of relevant contacts. It therefore concluded that her evidence was not capable of belief. The Court also had grave doubts about its admissibility under section 114(1)(d) of the Criminal Justice Act 2003, having regard to section 114(2).
5. Even if credible and reliable, the evidence would have been little more than additional material with which to challenge the complainant’s credibility. It did not cast a substantially new or different light on the issues already before the jury. The account attributed to the complainant was also unclear and was not necessarily inconsistent with the prosecution case on how the injuries were caused.

• Court of Appeal (Criminal Division): The application for leave to adduce fresh evidence and leave to appeal against conviction was refused.
• Crown Court at Sheffield: Following trial before a judge and jury, the applicant was convicted of assault occasioning actual bodily harm on 11 December 2019 and sentenced to three years’ imprisonment on 13 December 2019. He was acquitted of two counts of assault by penetration.