REGINA v ALEX SMITH

An extraordinary delay in seeking to appeal requires merits that are compelling before an extension of time can be entertained. A fully advised and unambiguous guilty plea is highly material when assessing whether a conviction is safe, although it does not create an absolute bar to an appeal. Fresh evidence remains subject to the interests-of-justice test and the statutory factors. Alleged entrapment by a private citizen is fact-specific and requires a reliable factual basis. Alleged dishonesty by an intermediary will not normally affect the safety of a conviction where the disputed issues concern the defendant’s own knowledge and the existence of counterfeit property. Third-party disclosure will not be considered without proper notice and an opportunity to respond.

The applicant sought to renew an application for leave to appeal convictions entered after guilty pleas to two offences involving counterfeit coins. He required substantial extensions of time and sought to vary the grounds of appeal and adduce fresh evidence under section 23 of the Criminal Appeal Act 1968.

A Single Judge refused leave in May 2016, principally because of the delay. The Criminal Cases Review Commission declined to refer the case in 2018. The proposed grounds concerned alleged journalistic entrapment, prosecution non-disclosure, the subsequent criminal conduct of the journalist involved, and evidence from the Royal Mint. The central issues were whether the delay and evidential prejudice could be overcome, and whether the proposed material could arguably render the convictions unsafe.

Disposition. The court refused the applications for extensions of time, variation of the grounds and admission of fresh evidence, and dismissed the renewed application.

1. Delay and variation of grounds. The delay was extraordinary and inadequately explained. The resulting prejudice was substantial because prosecution and police papers, unused-material schedules and recollections were unavailable. The merits would therefore have needed to be compelling before an extension could be entertained. The hurdle for varying grounds after refusal by a Single Judge was also high, applying the principles in R v James and others [2018] EWCA Crim 285; [2018] 1 WLR 2749.
2. Fresh evidence and guilty pleas. Under section 23 of the Criminal Appeal Act 1968, the overarching question was whether the interests of justice required admission of the evidence, with particular consideration of the factors in section 23(2). Fresh evidence could in principle bear on the safety of a conviction following an unequivocal guilty plea, as recognised in R v LZ [2012] EWCA Crim 1867. However, a fully advised and deliberate guilty plea was highly material, and ordinarily left no basis for appealing the conviction, subject to exceptions such as a legal obstacle to trial, following R v Asiedu [2015] EWCA Crim 714.
3. Entrapment and disclosure. The principles concerning state entrapment through agents in Looseley (AG Reference No 3 of 2000) [2001] UKHL 53; [2002] 1 Cr.App.R 92 applied to journalists, though with less force, and the same or similar police conduct provided the starting point for analysing alleged entrapment by a private citizen: R v Hardwicke and Thwaites [2001] Crim.LR 220. The allegations were speculative, lacked particulars and had no reliable factual basis. The alleged dishonesty of the journalist was irrelevant to the applicant’s own knowledge and to whether the coins were counterfeit. An application for third-party disclosure could not be considered without proper notice to the proposed recipient.
4. Royal Mint material. The Royal Mint evidence was equivocal and could not reliably establish the historical position. The applicant’s own case, mitigation and guilty pleas indicated that he knew the coins were counterfeit. The proposed grounds therefore disclosed no arguable safety concern.

• Court of Appeal (Criminal Division) — renewed application dismissed: [2022] EWCA Crim 50.
• Single Judge — refused leave to appeal in May 2016, principally because of the delay.
• Criminal Cases Review Commission — declined to refer the case in 2018.