JOREL EDGECOMBE v THE CROWN

A conviction will not be rendered unsafe by an alleged failure of trial representatives to advance a defence where the appellate court finds that the relevant instructions were never given and the evidence of guilt is overwhelming. A judge may fairly explain the consequences of waiving legal professional privilege when a defendant begins to give evidence about communications with former lawyers. Where the defendant remains free to decide whether to disclose those communications, and elects not to do so, the handling of the issue does not create unfairness. Fresh evidence may be refused under Criminal Appeal Act 1968, section 23 where it is not capable of belief, affords no ground for allowing the appeal, and there is no reasonable explanation for its earlier absence.

At the Crown Court at Snaresbrook, Jorel Edgecombe was convicted at Trial 1 of conspiracy to possess firearms. The jury had been unable to reach a verdict on the more serious count of conspiracy to possess prohibited firearms with intent to endanger life. At the re-trial, Trial 2, he was convicted of that count.

He sought leave to appeal against both convictions. His principal complaints were that his Trial 1 representatives had failed to advance his account that he had conspired to import cannabis rather than firearms, and that a defence witness had not been called. He also complained that, at Trial 2, the judge had prevented him from explaining why cannabis was absent from his Defence Case Statement. He sought to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968.

The central issue was whether those matters rendered either conviction unsafe.

Decision

1. The court refused to receive the fresh evidence and refused the applications for leave to appeal.
2. The court found that Edgecombe had not told either of his Trial 1 representatives, before the Defence Case Statement was finalised, that the alleged agreement concerned cannabis rather than firearms. His present account was inconsistent with his conduct at Trial 1, the contemporaneous documents, and the evidence preferred by the court. Had those instructions been given, the adverse-inference direction concerning the Defence Case Statement should not have been given. The factual premise for that complaint was, however, absent.
3. That finding also disposed of the Trial 2 ground. The trial judge had explained that evidence about communications with former lawyers could waive legal professional privilege and permit investigation of the former representatives’ evidence and papers. Edgecombe was not prevented from giving the evidence. He chose not to continue with it. The matter was not subsequently relied on before the jury, and the judge had dealt with it fairly.
4. Independently, both convictions were plainly safe. The evidence linking Edgecombe to the firearms conspiracy was overwhelming. The proposed cannabis account did not undermine the firearms allegation, and the evidence of Paul Salafia, called at Trial 2, had not assisted the defence. No adverse-inference direction concerning either the interview or the Defence Case Statement was given at Trial 2.
5. Under section 23 of the Criminal Appeal Act 1968, the proposed fresh evidence was refused because it did not appear capable of belief, did not afford a ground for allowing the appeal, and lacked a reasonable explanation for not having been adduced earlier.

• Court of Appeal (Criminal Division)—by judgment dated 22 February 2022, [2022] EWCA Crim 209, refused to receive fresh evidence and refused leave to appeal against conviction.
• Crown Court at Snaresbrook, Trial 2—on 9 September 2019, Edgecombe was convicted of conspiracy to possess prohibited firearms with intent to endanger life.
• Crown Court at Snaresbrook, Trial 1—on 3 May 2019, Edgecombe was convicted of the lesser count of conspiracy to possess firearms. The jury did not reach a verdict on the more serious count, which led to the re-trial.