R v XY

Under section 23 of the Criminal Appeal Act 1968, evidence available at trial, whose substance was known, and which could have been adduced by the defence is not fresh evidence merely because it is produced after conviction. A reasonable explanation is required for its absence. The court may refuse evidence that is not credible or does not provide an arguable basis for concluding that the conviction is unsafe. The judgment also gives procedural guidance on privilege, respondent notices, single-judge scrutiny and directions for fresh-evidence applications.

The applicant was convicted in the Crown Court of sexual activity with a child family member and sentenced to seven years’ imprisonment. He was acquitted of a separate rape charge.

He sought an eight-day extension of time and leave to appeal against conviction. Under section 23 of the Criminal Appeal Act 1968, he also sought to introduce a letter and witness statement from the complainant. The proposed evidence offered explanations for forensic findings and images found on his phone. The central issues were whether the evidence was fresh, whether its absence at trial was reasonably explained, whether it was credible, and whether admitting it was necessary or expedient in the interests of justice.

1. Applications refused. The court refused the extension of time, leave to appeal and application to adduce fresh evidence. The remaining grounds were vague and unsubstantiated and disclosed no arguable basis for doubting the safety of the conviction.
2. Evidence is not fresh for section 23 purposes where it was plainly available at trial, its substance or the witness was known, and the defence could have obtained and adduced it. Waiting until after conviction, without a reasonable explanation supported by appropriate evidence, is impermissible. The absence of privilege waiver and of a proper explanation from the applicant’s solicitors materially undermined the application.
3. The proposed evidence was also substantially the theory advanced at trial. The possibility of transfer of semen by a vibrator had been put to the forensic expert, explored in cross-examination and left to the jury. The quantity and distribution of semen made the proposed account fanciful. The evidence was not credible and did not make the conviction arguably unsafe.
4. It was therefore neither necessary nor expedient in the interests of justice to receive the evidence. The court repeated the procedural recommendations in R v Kunwar Ajit Singh [2017] EWCA Crim 466, including addressing privilege, obtaining a respondent’s notice where useful, assessing arguability at the single-judge stage, and seeking directions before a full-court hearing.

• Crown Court at Wolverhampton: on 20 December 2021, the applicant was convicted of sexual activity with a child family member and sentenced to seven years’ imprisonment. He was acquitted of a separate rape charge.
• Court of Appeal (Criminal Division): the applications for an extension of time, leave to appeal and admission of fresh evidence were refused.