R v Shamadul Islam & Anor

An out-of-time renewed application for leave to appeal requires a very good reason for the delay. The hurdle is higher where the applicant also seeks to vary the grounds. The court considers the length and explanation of the delay, whether the relevant issues were previously known to the applicant’s representatives, the overriding objective and the interests of justice. Under section 23 of the Criminal Appeal Act 1968, fresh evidence must be capable of belief, sufficiently material to afford a ground for allowing the appeal, and supported by a good reason why it was not called at trial. A tactical decision not to pursue a known witness does not satisfy that requirement.

Both applicants had been convicted at Luton Crown Court of offences including conspiracy to supply class A drugs, false imprisonment and assault. Islam received a total sentence of eight years and eight months’ imprisonment. Ali received an extended determinate sentence of ten years.

They sought extensions of time and renewed leave to appeal against conviction. Both applications relied on proposed fresh evidence from Tamie Cormack, a tenant of the flat where the alleged offences occurred. She asserted that the complainants’ accounts were false and that no violence or firearms had been present. The central issues were whether time should be extended and whether the evidence satisfied section 23 of the Criminal Appeal Act 1968.

Both applications were refused. Islam’s application for a 379-day extension and renewed application for leave were refused. Ali’s application for a 510-day extension and renewed application were also refused.

1. The court applied the guidance in R v James [2018] EWCA Crim 285, [2018] 1 Cr App R 33. An out-of-time renewal requires a very good reason. Where variation of the grounds is also sought, the hurdle is higher. The relevant considerations include the extent and explanation of the delay, whether the issues were known to the applicant’s representatives when the original grounds were advised, the overriding objective in CrimPR r.1.1 and the interests of justice.
2. The proposed evidence failed the criteria in section 23 of the Criminal Appeal Act 1968. The two original statements were unsigned and of unclear and unreliable provenance. The later signed statement was unsupported by reliable identification evidence, and the prolonged delays were unexplained.
3. The evidence was also directly contradicted by the complainants’ tested trial evidence, other evidence in the case and video footage. The court concluded that it was neither capable of belief nor sufficiently material to undermine the prosecution case or render the convictions arguably unsafe.
4. There was no good reason why the evidence could not have been called at trial. Cormack was known to the applicants and could have been traced or put forward as a defence witness. No meaningful effort had been made to do so. The court considered that the decision not to call her was tactical, based on the belief that she would be loyal to a complainant.
5. The interests of justice test was not met. The renewed application by Islam and both applications by Ali were refused.

1. Court of Appeal (Criminal Division): The court refused Islam’s extension of time and renewed application for leave, and refused Ali’s extension of time and renewed application: [2023] EWCA Crim 1181.
2. Crown Court at Luton: Islam and Ali were convicted on 28 May 2021 and sentenced by His Honour Judge Evans on 10 February 2023.