Porch, R v

Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal may receive fresh evidence where the interests of justice require it. The statutory factors include credibility, admissibility, potential grounds for allowing the appeal, and the explanation for its absence at trial. A deficient explanation does not prevent admission where the interests of justice favour it.

The decisive question is whether the new material gives rise to concern that the conviction is unsafe. The court should assess the material’s likely effect on the jury. A conviction must be quashed where there is a real possibility that properly deployed fresh evidence would have led to a different verdict.

The appellant had been convicted at Snaresbrook Crown Court of blackmail and assault by beating, arising from allegations that he had assaulted and threatened Frederick Rawlinson in order to recover money. He was sentenced to five years’ imprisonment.

More than three years later, the appellant sought an extension of time, leave to adduce messages recovered from three mobile telephones, and leave to appeal. The phones had been seized during the investigation but had not been interrogated before trial. The recovered messages materially bore on the complainant’s credibility, his relationship with the appellant, and whether money was genuinely owed.

The central issue was whether the fresh evidence should be admitted and, if so, whether it rendered the convictions unsafe.

1. Appeal allowed. The court granted an extension of time, admitted the fresh evidence under section 23(1)(c) of the Criminal Appeal Act 1968, granted leave to appeal, and quashed both convictions.

2. The statutory factors in section 23(2) required consideration of whether the evidence was capable of belief, might afford grounds for allowing the appeal, would have been admissible, and had a reasonable explanation for not being adduced at trial. The interests of justice remained paramount. As explained in R v Sales [2000] Cr App R 431, the absence of a reasonable explanation does not preclude admission where justice requires it.

3. The recovered messages were authentic and would have been admissible. The failures to obtain and disclose them before trial resulted from a catalogue of avoidable errors and misunderstandings involving the investigation, prosecution and defence. Those matters provided a sufficient explanation for the delay and for the evidence not being adduced.

4. There is no general duty to forensically interrogate every phone seized from a suspect. However, where a retained phone may contain relevant material, including material capable of assisting the defence, the issue must be properly addressed. On these facts, the prosecution should have disclosed the results had the phones been interrogated as requested.

5. The messages substantially undermined the credibility of the principal prosecution witness. They supported the existence of an antecedent debt and regular repayments, cast doubt on important aspects of his account, and provided material for the defence case that he had falsely alleged blackmail to conceal his financial difficulties from his parents.

6. Had the material been available to defence counsel, there was a real possibility that the jury would have returned different verdicts on both counts. The convictions were therefore unsafe. The Crown did not seek a retrial.

• Court of Appeal (Criminal Division): Allowed the appeal, admitted fresh evidence, and quashed the convictions.

• Crown Court at Snaresbrook: On 12 February 2016, convicted the appellant of blackmail and assault by beating and imposed a total sentence of five years’ imprisonment.