Beere & Anor, R. v

On an application to introduce fresh evidence in a criminal appeal, the power under the Criminal Appeal Act 1968 is broad and may include evidence available at trial but not used. The interests of justice nevertheless require close scrutiny of omitted evidence and a reasonable and persuasive explanation for its omission. Relevant factors include credibility, potential to afford a ground of appeal, admissibility and the explanation for non-use. Expert disagreement alone is insufficient. Evidence that merely reopens a fully litigated issue, or strengthens the prosecution case, does not create an arguable basis to challenge a conviction.

Jonathan Beere and Daniel Payne were convicted in June 2011 at the Crown Court at Kingston upon Thames of conspiracy to import cocaine. They applied for an extension of time of 2,567 days, leave to appeal against conviction and permission to rely on fresh evidence under the Criminal Appeal Act 1968.

The applications relied principally on newly obtained maritime data, evidence concerning other vessels and aircraft, and material previously available but not used at trial. The applicants argued that the evidence undermined the prosecution case that the fishing vessel had collected cocaine at sea and later jettisoned it in Freshwater Bay. The central issue was whether the material created an arguable basis for questioning the safety of the convictions.

Applications refused. The court refused the extension of time, leave to appeal and applications to adduce fresh evidence.

1. The court adopted the approach stated in R v Erskine; Williams [2009] 2 Cr App R 29. The power to receive fresh evidence under section 23 is wide and is not confined to evidence that could not reasonably have been adduced at trial. Evidence available but not used may be received in principle, but revisiting a tactical decision requires careful scrutiny. Without a reasonable and persuasive explanation for the omission, the interests-of-justice test will rarely be satisfied.
2. The statutory considerations include whether the evidence is capable of belief, whether it may afford a ground for allowing the appeal, whether it would have been admissible below and whether there is a reasonable explanation for its non-use. A dispute between qualified experts does not, by itself, establish that evidence is capable of belief. The court must assess credibility and likely impact.
3. The newly available ECDIS and FleetMon data, together with the drift analysis, did not show that the vessels were too far apart for the alleged collection operation. The technically supported course based on AIS data, corrected radar data and the surrounding evidence instead strengthened the prosecution case. The previously available surveillance material, which had not been used for tactical reasons, likewise did not provide an arguable ground.
4. The evidence concerning radar target A50 and the possible surveillance aircraft was speculative or incapable of materially undermining the other circumstantial evidence. The court considered the proposed grounds against the whole trial evidence, including the vessel’s movements, telephone evidence, the jettisoning of items and the defendants’ lies. Individually and collectively, the grounds did not cast doubt on the safety of the convictions.

• Court of Appeal (Criminal Division)—The Full Court considered applications referred by the Single Judge and refused the extension of time, leave to appeal and applications to adduce fresh evidence.
• Criminal Cases Review Commission—On 22 November 2017, the Commission declined to refer the convictions, finding no real possibility that they would be quashed and no further line of inquiry likely to produce material new evidence.
• Crown Court at Kingston upon Thames—The applicants were convicted in June 2011 and sentenced to 24 and 18 years’ imprisonment respectively.