Barker, R. v

On an application relying on fresh evidence, the Court of Appeal must determine for itself whether the conviction is unsafe. The factors in section 23(2) of the Criminal Appeal Act 1968 must be considered, but are not exhaustive and none is independently decisive. The likely effect on a jury is a useful check only; it does not replace the court’s own assessment. Fresh evidence may be refused where its apparent exculpatory value depends on oral evidence which the court cannot believe, particularly where a dishonest trial alibi and an unexplained failure to produce the material undermine that evidence.

The applicant was convicted at Manchester Crown Court of robbery and sentenced to seven years’ imprisonment. The prosecution case rested principally on identification evidence and on the recovery of the stolen car very close to the home where he was arrested.

After conviction, a video from the applicant’s Snapchat account was found. It was accepted that the person recording it could not have committed the robbery. The applicant and his partner gave fresh evidence that he had recorded it while travelling in her car. That account conflicted with their trial alibi, which had placed him at home playing Xbox with her brother.

The central issue was whether the video and the evidence identifying its recorder should be received as fresh evidence and, if so, whether they rendered the conviction unsafe.

1. Leave to appeal was refused. The court granted a short extension of time, but declined to receive the proposed fresh evidence under section 23 of the Criminal Appeal Act 1968.
2. The court applied the approach in R. v. Ahmed [2010] EWCA Crim 2899. Responsibility for deciding whether fresh material renders a conviction unsafe rests on the Court of Appeal itself. A hypothetical jury’s reaction is only a means of checking the court’s conclusion. The statutory factors in section 23(2) must be considered in particular, but they are non-exhaustive and none alone resolves the ultimate safety question.
3. The video was capable of proving that its recorder was elsewhere at the time of the robbery. It did not establish who the recorder was. Its exculpatory force therefore depended upon the applicant’s and Ms Randles’s evidence that he had made it.
4. The court rejected that oral evidence. The alibi advanced at trial was demonstrably false. The court found that the applicant and Ms Randles had dishonestly claimed, from the time of the police inquiry, that they had been home substantially longer than was possible. Their later explanation that the false account resulted from confusion about timing was not credible.
5. There was also no reasonable explanation for failing to deploy the video at trial. The applicant had used the relevant phone and Snapchat account daily for a lengthy period, had been advised to seek digital evidence, and had nevertheless not produced the clip. The court held that the fresh evidence was not capable of belief in the necessary respect and would not afford a ground for allowing the appeal. It did not cause the court to doubt the safety of the conviction.

• Court of Appeal (Criminal Division): The court granted an extension of time but refused leave to appeal against conviction: [2021] EWCA Crim 603.
• Manchester Crown Court: On 6 September 2019, before His Honour Judge T Smith, the applicant was convicted of robbery and sentenced to seven years’ imprisonment.