Mohammed Sajid v R

Fresh evidence will be admitted on a criminal appeal only where admission is necessary in the interests of justice and the statutory conditions are met. Under section 23 of the Criminal Appeal Act 1968, the court must consider whether the evidence is capable of belief and whether it affords a ground for allowing the appeal, while retaining regard to other relevant matters. A recording obtained after trial was not capable of belief where its provenance was inadequately explained, the participants’ accounts were misleading, the recording was delayed before disclosure, and its contents included demonstrably incredible allegations. The absence of an opportunity to cross-examine on unreliable material did not make the trial unfair. The court may also consider the failure to call available evidence at trial when deciding whether to receive fresh evidence.

The appellant had been convicted at the Crown Court at Manchester Minshull Street, on retrial, of conspiracy to commit violent disorder and causing grievous bodily harm with intent. He received a total sentence of 18 years’ imprisonment.

He applied approximately two years and four months out of time for leave to appeal against conviction. He also applied under section 23 of the Criminal Appeal Act 1968 to adduce a recording made after trial, in which a prosecution witness appeared to say that he had not been present at the incident and had been induced by the police to give evidence. The central questions were whether the recording was capable of belief, whether it afforded a ground for allowing an appeal, and whether its admission was necessary in the interests of justice.

The court dismissed both applications. The application to extend time for leave to appeal was dismissed because there were no arguable grounds of appeal. The application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 was also dismissed.

1. Section 23(1) required the court to conclude that receiving the evidence was necessary in the interests of justice. Section 23(2) required regard to whether the evidence was capable of belief and whether it afforded a ground for allowing the appeal. Those matters were not exhaustive, so the court could consider other relevant circumstances.

2. The recording was not capable of belief. The accounts of how the meeting came about were incomplete or misleading. The participants had discussed the witness’s trial evidence in advance, the recording began after that discussion, and its provenance could not credibly be explained. The ten-month delay in providing it to the appellant’s solicitor, and its circulation to others meanwhile, further undermined its reliability.

3. The witness’s incredible claims that he had been paid £10,000 and had given evidence from a police-written script undermined the credibility of everything he said on the recording. They did not undermine his evidence at trial, which was internally consistent with the surrounding evidence and had not been shown to be scripted.

4. The suggested unfairness arising from the inability to cross-examine the witness about the recording was unsustainable. A party was not unfairly deprived of cross-examination on material which was itself unreliable.

5. The court could take account of the fact that an available witness, who could have contradicted part of the prosecution evidence, had not been called at trial. That failure was relevant when considering whether to receive the later evidence.

The recording neither satisfied the statutory requirements for admission nor afforded any ground for allowing an appeal.

• Court of Appeal (Criminal Division): Mohammed Sajid v R, [2023] EWCA Crim 1346. Applications for an extension of time for leave to appeal against conviction and to adduce fresh evidence were dismissed.
• Crown Court at Manchester Minshull Street: on retrial, the appellant was convicted of conspiracy to commit violent disorder and causing grievous bodily harm with intent, and sentenced to 18 years’ imprisonment.