R v Joseph Lowther

An unsuccessful appeal against conviction cannot be revived as a fresh appeal merely because new evidence has become available. Section 23 of the Criminal Appeal Act 1968 permits the Court of Appeal to receive fresh evidence for an otherwise competent appeal or application, but does not create a further right of appeal after the original appeal has failed.

The limited jurisdiction to reopen a concluded appeal under Crim PR r36.15 is generally confined to a nullity or procedural defect that may have caused real injustice. It may extend to other exceptional circumstances, but such cases will be very rare. An applicant must make the written application required by the rule and address its stated requirements. The Criminal Cases Review Commission will ordinarily provide the appropriate route for a fresh-evidence case.

The appellant was convicted of murder and possessing a firearm with intent to endanger life in 2014. His applications for leave to appeal were refused in 2014 and 2016. After the Criminal Cases Review Commission refused a further application in 2020, he lodged a fresh notice of appeal based on alleged social-media evidence concerning two anonymous witnesses.

The Registrar treated the notice as ineffective because the appellant had exhausted his right of appeal. The appellant appealed that ruling, arguing that section 23 of the Criminal Appeal Act 1968 permitted a distinct fresh appeal and, alternatively, seeking reliance on Crim PR r36.15.

1. Section 23 and a second appeal. The appeal against the Registrar’s ruling was dismissed. The authorities, beginning with R v Pinfold [1988] QB 462 and following R v Grantham [1969] 2 QB 574, establish that section 23 presupposes a competent appeal or application under section 1. It enables the court to receive evidence not adduced below in an existing appeal; it does not permit a fresh appeal whenever new evidence arguably satisfies the statutory criteria. The Registrar therefore correctly treated the October 2021 notice and grounds as ineffective.
2. Reopening a concluded appeal. The jurisdiction under Crim PR r36.15 is limited. R v Gohil [2018] 1 Cr App R 30 identified a previous order that was a nullity and a procedural defect that might have caused real injustice. The court acknowledged, consistently with R v Zuman [2021] EWCA Crim 399, that the jurisdiction is not rigorously confined to procedural errors, but any extension is likely to be confined to exceptional circumstances where the absence of an alternative effective remedy might otherwise cause manifest injustice.
3. No application under r36.15 had been made. The appellant had not complied with the requirement for a written application under r36.15(2)(a), or attempted to address the matters required by r36.15(3)(b). There was no good reason to excuse compliance. The court therefore declined to express any view on the possible merits of such an application, while noting the apparent availability of a remedy through the Criminal Cases Review Commission.
4. The Registrar’s ruling stood and the purported notice and grounds of appeal were ineffective. No other application was before the court.

• Court of Appeal (Criminal Division): The appellant’s conviction was upheld after leave applications were refused by a single judge in November 2014 and by the full court on renewal in July 2016.
• Criminal Cases Review Commission: A further application was refused in 2020.
• Court of Appeal (Criminal Division): The appeal against the Registrar’s decision to treat the October 2021 notice as ineffective was dismissed under [2022] EWCA Crim 1807.