AWJ v REGINA

Under section 23 of the Criminal Appeal Act 1988, fresh evidence should be admitted only where this is necessary or expedient in the interests of justice. The court must assess the evidence in the context of the trial record. It may accept an underlying event, such as an assault on the applicant, without accepting the proposed causal mechanism. Expert evidence based on a vague late account, unsupported variables and mechanisms inconsistent with the witness’s evidence may be regarded as speculative. A psychological explanation for delayed disclosure does not itself establish the truth of the late account. A theoretical possibility of accidental causation is insufficient where the fresh evidence is unpersuasive.

The applicant was convicted at the Crown Court at Isleworth on 13 October 2017 of causing or allowing serious physical harm to a child, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. Her sentence was reduced on appeal in 2018. She sought permission to appeal against conviction out of time and an extension of time.

The application relied on her new account that her co-defendant had assaulted her while she was holding the child, together with psychological evidence explaining delayed disclosure and biomechanical evidence said to support accidental causation. The central issue was whether that evidence should be admitted under section 23 of the Criminal Appeal Act 1988.

The court refused permission to appeal against conviction and refused the necessary extension of time.

1. The court applied the section 23 test under the Criminal Appeal Act 1988: it had to decide whether admission of the fresh evidence was necessary or expedient in the interests of justice. That assessment required consideration of the new account against the evidence as a whole.

2. The court accepted, for the purpose of the application, that the applicant had been punched by the co-defendant. It did not accept that the punch caused the child’s injuries. The applicant was not a convincing witness on that issue. Her account was undermined by the neighbours’ evidence, the children’s statements, the co-defendant’s initial accusations and inconsistencies in her explanations for not reporting the assault to the police.

3. The biomechanical evidence did not provide a reliable alternative mechanism. It was based on a vague account and involved numerous variables which could not be precisely stated. The potentially supportive scenarios depended on a crushing injury not established by the applicant’s evidence. The report was therefore speculative. The court also rejected the suggestion that the evidence represented an acceptance by the trial experts of the proposed mechanism.

4. The psychological report explained the late disclosure but did not independently establish the applicant’s account. It depended on accounts which the court found unpersuasive. The court was also unconvinced that the biomechanical evidence could not have been obtained at trial. In those circumstances, admission of the fresh evidence was neither necessary nor expedient in the interests of justice.

• Court of Appeal (Criminal Division): In [2021] EWCA Crim 1776, permission to appeal against conviction and the necessary extension of time were refused.
• Crown Court at Isleworth: The applicant was convicted on 13 October 2017 and sentenced to an extended term of 10 years. In 2018, the sentence was reduced on appeal to a standard determinate sentence of five years.