R v Scott Powell

On applications for permission to appeal against conviction, to adduce fresh evidence and to extend time, the court held that fresh evidence under Criminal Appeals Act 1968, section 23 must satisfy the interests-of-justice requirement and the statutory factors in section 23(2). Evidence that was not credible, merely repeated credibility issues considered at trial, or did not amount to an unequivocal retraction did not meet that standard. A defendant’s later regret about tactical decisions, or dissatisfaction with guilty pleas personally entered in open court, did not provide a reasonable basis for appellate intervention. A lengthy delay without good reason justified refusing an extension of time.

The applicant was convicted in the Crown Court at Leeds of rape after trial. He had pleaded guilty to criminal damage, assault occasioning actual bodily harm, burglary and common assault, receiving an aggregate sentence of eight years’ imprisonment.

Following refusal by a single judge, he renewed his application for permission to appeal. He also sought permission to adduce fresh evidence under section 23 of the Criminal Appeals Act 1968 and an extension of time of one year and six-and-a-half months. He alleged defective legal advice, including advice not to give evidence and to plead guilty, failure to use phone messages, and post-trial statements said to show that the complainant had fabricated or retracted the allegations. The issues were whether the fresh evidence should be received, whether there was an arguable basis for an appeal, and whether time should be extended.

All applications refused. The court refused permission to adduce fresh evidence, permission to appeal against conviction and an extension of time.

1. Under section 23 of the Criminal Appeals Act 1968, the court considered whether receiving the proposed evidence was necessary or expedient in the interests of justice, having regard to the statutory factors in section 23(2). The evidence did not appear capable of belief. Even if admitted, it would go only to the complainant’s credit and credibility, which had already been issues at trial. Alleged post-trial comments did not necessarily amount to a true or unequivocal retraction. The court also endorsed the single judge’s concerns about the statements’ quality, timing and appearance.
2. The complaints about trial counsel and the legal team disclosed no reasonably arguable ground. The complaints emerged about one-and-a-half years after trial. Waiver material, detailed responses from the previous advisers, contemporaneous attendance notes and the applicant’s signed record of his decision whether to give evidence showed that he had been properly advised. The open-court indication of his decision and the judge’s warning about adverse inferences further undermined the complaint.
3. A decision to plead guilty is the defendant’s own decision and is confirmed personally in open court. The applicant therefore had no reasonable basis to vacate the guilty pleas or appeal the resulting convictions merely because he later asserted his innocence.
4. The phone messages were not uniformly favourable and had been excluded as a tactical decision after advice. Later regret about that decision, or a belief that different tactics might have produced a different outcome, did not justify an appeal where representation had been of a high standard and the advice was correct.
5. The court had power to extend time where there was good reason. The explanation for the substantial delay was threadbare and did not establish good reason, so the extension was refused.

• Court of Appeal (Criminal Division): Following refusal by a single judge, refused permission to appeal, refused permission to admit fresh evidence and refused an extension of time: [2022] EWCA Crim 1874.
• Crown Court at Leeds: The applicant pleaded guilty to four categories of offence and was convicted after trial of rape. He was sentenced to an aggregate term of eight years’ imprisonment.