Halkyard, R v

Fresh evidence will not justify reopening a conviction unless it meets the requirements of Criminal Appeal Act 1968, section 23 and can provide a basis for allowing the appeal. Evidence that could have been obtained for trial without good reason, that does not undermine the trial evidence, or that is likely to damage the proposed defence will not meet that threshold.

A very lengthy delay in seeking leave to appeal requires a good reason. Where no arguable ground shows that the conviction is unsafe, the court may refuse both an extension of time and leave to appeal.

In 2018, the applicant was convicted in the Inner London Crown Court of assault by beating. He was acquitted of the racially aggravated count and completed the community sentence imposed for the assault.

About 528 days after the time for appealing had expired, he sought an extension of time and leave to appeal against conviction. He alleged that the complainant at trial was an imposter, that potential witnesses had not been traced or called, and that his trial lawyers had conducted the defence inadequately. He also sought to adduce fresh evidence and recall witnesses.

The renewed applications followed the single judge’s refusal. The central questions were whether the delay was justified, whether the proposed evidence met the statutory threshold, and whether any ground rendered the conviction arguably unsafe.

1. The court refused the renewed application for an extension of time and the renewed application for leave to appeal. The 528-day delay was exceptionally long. The applicant’s efforts to obtain evidence and legal assistance did not provide a persuasive reason for it. The court nevertheless considered the merits.

2. The proposed claim that the trial complainant was an imposter disclosed no arguable ground. No such challenge was raised at trial, and the allegation was inconsistent with the applicant’s own account that the person involved in the incident was white rather than Asian. The material produced after trial did not approach the level capable of supporting that allegation.

3. The complaints about uncalled witnesses and the conduct of the defence did not show that the trial was unfair or that the conviction was unsafe. The applicant had failed to identify his passenger to the police when asked, and the material concerning her suggested that her evidence would have harmed rather than assisted the defence. There was also no basis to doubt the prosecution witness’s trial evidence.

4. The threshold for receiving fresh evidence under section 23 of the Criminal Appeal Act 1968 was high. None of the proposed evidence could afford a basis for allowing the appeal. Much of it could and should have been advanced at trial. Accordingly, no arguable ground of appeal arose.

• Court of Appeal (Criminal Division): On renewed applications following refusal by the single judge, the court refused an extension of time and leave to appeal against conviction.
• Inner London Crown Court: The applicant was convicted on 9 August 2018 of assault by beating and acquitted of racially aggravated assault.