R v Philip Roe

In a very late application for permission to appeal against conviction, the court must examine the merits of the proposed grounds before deciding whether an extension of time serves the interests of justice. A long delay may make a fair retrial impossible and may impair reliable assessment of the alleged error. Evidence of a third party’s arrest and charge may be admissible as contextual evidence where it assists the jury to understand communications relevant to the defendant’s state of mind and alleged participation in a conspiracy. It must not be used to prove the third party’s guilt or guilt by association. Evidence which is merely peripheral, or which would not have made a material difference, does not justify reopening the conviction.

The applicant was convicted after a retrial in the Crown Court at Canterbury of drug-importation and firearms offences arising from drugs, a handgun and ammunition found in another lorry returning from Holland. He sought permission to appeal against conviction more than eight years out of time, together with an extension of time and an application to adduce evidence from ten additional witnesses.

The proposed grounds concerned the admission and use of evidence that Guy Mitchell had been arrested and charged with drug offences in Ireland, alleged incompetence in failing to call further evidence, and the adequacy of the judge’s directions. The central questions were whether the additional evidence could materially affect the safety of the conviction, whether the Mitchell evidence was admissible and properly used, and whether an extension of time was in the interests of justice.

1. Application and extension of time. The court applied the established approach that an extension is granted only where there is good reason, ordinarily where refusal would cause significant injustice, and where granting it is in the interests of justice. The merits of the proposed appeal must be examined before deciding the extension. The passage of time may affect the court’s ability to determine what occurred at trial and may make a fair retrial realistically impossible. The proposed appeal had no real prospect of success, so no useful purpose would be served by extending time (paras [24]-[25], [62]-[65]).
2. Additional evidence. The proposed evidence of the additional witnesses was peripheral, available or obtainable earlier, or incapable of materially affecting the verdict. The court was not persuaded that the original legal team had been incompetent in not calling it. The evidence concerning Mr Mitchell’s later acquittal was potentially relevant to the admission issue, but did not alter the court’s conclusion (paras [27]-[34], [61]).
3. Evidence concerning Mr Mitchell. The agreed evidence that Mr Mitchell had been arrested and charged was admissible under section 100(1)(c) of the Criminal Justice Act 2003. Its relevance was contextual: it helped the jury understand the applicant’s communications with Mr Mitchell’s partner and the R-man, and thereby assess the alleged Irish-based conspiracy and the applicant’s state of mind. It did not prove Mr Mitchell’s guilt and could not support guilt by association. The judge properly confined the evidence to the bare, undisputed facts and directed the jury on its limited relevance and Mr Mitchell’s presumption of innocence (paras [48]-[55]).
4. Directions and cumulative evidence. The evidence concerning the arrest formed part of a wider body of circumstantial evidence. The judge was entitled to leave it to the jury for the limited purpose of interpreting the communications. The January 2011 messages were independently capable of supporting an inference of a smuggling conspiracy involving the R-man, and did not require proof that the applicant knew of later allegations against Mr Mitchell. Any excessive questioning was cured by the clear and fair summing-up. The grounds of appeal were unarguable and the conviction was not unsafe (paras [49]-[61], [64]).
5. Disposition. The application, including the application for an extension of time, was dismissed (para [66]).

• Crown Court at Canterbury: The applicant was convicted after a retrial on 11 December 2013 and sentenced on 12 December 2013 to a total of 18 years’ imprisonment.
• Court of Appeal (Criminal Division): The application for permission to appeal, the application for an extension of time and the application to adduce further evidence were dismissed. The court held that the conviction was not unsafe.