Williams v R.

Fresh evidence will not ordinarily be received under section 23 of the Criminal Appeal Act 1968 unless the statutory considerations are satisfied. A purported confession with uncertain provenance, unsupported by evidence from its maker, and made by an unreliable person may fail the requirement that it be capable of belief. It may also be incapable of providing a ground to disturb convictions where the trial evidence was strong.

Obiter, a co-accused is "charged in the same proceedings" for section 76A of the Police and Criminal Evidence Act 1984 even if the defendants face separate, related offences. The phrase does not require a joint charge of the same offence.

The appellant had been convicted in 2007 of firearms offences, violent disorder and wounding with intent. An earlier attempt to appeal the firearms convictions by relying on medical evidence was refused: [2011] EWCA Crim 128.

The Criminal Cases Review Commission referred the firearms convictions after recovering a letter apparently written by a co-accused at his 2015 sentencing. The letter asserted that the co-accused had tried to shoot the appellant and had left the firearm for which the appellant was convicted.

The central questions were whether that letter should be received as fresh evidence under section 23 of the Criminal Appeal Act 1968, whether it cast doubt on the safety of the firearms convictions, and, if necessary, whether it would have been admissible at trial.

1. Appeal dismissed. The purported confession did not satisfy the fresh-evidence requirements in section 23 of the Criminal Appeal Act 1968 and cast no doubt on the safety of the firearms convictions.

2. The reasonable explanation requirement was met because the 2015 letter could not have been adduced at the 2007 trial. The remaining statutory matters required specific and cumulative attention. The court held that the confession was not capable of belief. Its provenance was uncertain, the co-accused denied knowledge of it, and neither he, the people involved in providing it to the sentencing court, nor the reporter said to have identified it gave evidence.

3. Even if the letter were genuine, its contents were unreliable. The co-accused had reason at his sentencing to portray the appellant’s release as a trigger for relapse and to explain a fear of revenge. He had previously sought to deceive juries and had a motive to disavow the letter. In any event, the confession had no realistic prospect of affecting the result. The evidence that the appellant produced and fired the firearm, retained it and concealed it was strong.

4. Obiter, section 76A of the Police and Criminal Evidence Act 1984 would have permitted the confession to be adduced for the appellant in a joint trial with the co-accused. Following the reasoning in Finch [2007] EWCA Crim 36, the phrase "charged in the same proceedings" does not require the defendants to be jointly charged with the same offence. It is sufficient that both remain defendants at the trial and that the confessor is therefore not compellable as a witness.

5. The court nevertheless doubted, also obiter, that the statement would have been admitted through section 114(1)(d) of the Criminal Justice Act 2003. Its circumstances and the reliability of both its maker and the evidence that it was made would weigh against admission in the interests of justice.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court dismissed the appeal against the firearms convictions: [2021] EWCA Crim 226.
• Court of Appeal (Criminal Division): In 2011, the appellant's applications for leave to appeal the firearms convictions and to rely on medical evidence were refused: [2011] EWCA Crim 128.
• Crown Court at Wolverhampton: The appellant was convicted on 17 May 2007 and sentenced on 16 July 2007.