R v Parrie Jacob

In a criminal appeal based on fresh evidence, an application to vary grounds out of time and an application to receive the evidence are distinct questions, although they may be considered together. A late variation requires very good reasons, assessed by the delay, its explanation, whether the relevant facts were known when advice was given, the overriding objective and the interests of justice. Under section 23 of the Criminal Appeal Act 1968, the listed factors for receiving fresh evidence are neither exhaustive nor conclusive. Once admitted, the question is whether the conviction is unsafe, including whether the evidence creates a realistic prospect that the jury would have reached a different conclusion. The appeal was allowed, the conviction quashed and a retrial ordered.

The applicant was convicted at the Crown Court at Canterbury of rape and sentenced to seven years and six months’ imprisonment. His original application for leave to appeal against conviction was refused. On a renewed application, the full court refused leave on the original grounds but referred applications concerning fresh evidence from Byron Parara, a security officer present at the event.

The Court of Appeal heard Mr Parara’s evidence and considered whether there was sufficient reason to extend time and vary the grounds, whether the evidence should be received under section 23 of the Criminal Appeal Act 1968, whether leave to appeal should be granted, and whether the conviction was unsafe.

1. Variation of grounds. An application to advance fresh grounds after a single judge has considered the case must be accompanied by an application to vary the notice of appeal. Exceptional leave is unnecessary, but the hurdle is high. The applicant must show very good reasons, assessed by the extent and explanation of the delay, whether the relevant facts were known when advice was given, the overriding objective and the interests of justice. The court applied those principles and accepted the explanation for the delay.
2. Receipt of fresh evidence. Under section 23(1) of the Criminal Appeal Act 1968, the controlling question is whether receiving the evidence is in the interests of justice. The factors in section 23(2)(a)–(d) are not exhaustive or conclusive. The evidence must appear capable of belief, potentially afford a ground for allowing the appeal, have been admissible at trial, and have a reasonable explanation for not being adduced then. The court was satisfied on each matter and received the evidence.
3. Three-stage approach. The court identified three distinct stages: receipt of the fresh evidence, granting leave to appeal on the basis that the conviction is arguably unsafe, and deciding whether the conviction is in fact unsafe. The first two stages may be considered together.
4. Safety of the conviction. Under section 2(1)(a) of the Criminal Appeal Act 1968, the court asks whether, having regard to the fresh evidence, it doubts the safety of the guilty verdict. It may test its conclusion by considering whether there is a realistic prospect that the jury would have reached a different conclusion, applying the approach in R v Pendleton [2001] UKHL 66, R v Ahmed [2010] EWCA Crim 2899 and R v Barker [2021] EWCA Crim 603.
5. Application to the evidence. Mr Parara was an independent and apparently credible witness. His evidence materially supported the applicant’s account of the encounter in the Portaloo and of the circumstances in which he fled after being assaulted. Although discrepancies existed concerning timing and the complainant’s description, they did not justify discarding the significant corroborative evidence. There was a realistic prospect that the jury would not have been sure of guilt, so the conviction was unsafe.
6. Orders. The appeal was allowed and the conviction quashed under sections 2(1)(a) and 2(2) of the Criminal Appeal Act 1968. A retrial was ordered under section 7(1). Publication of the proceedings was postponed under section 4(2) of the Contempt of Court Act 1981 until the retrial concluded.

• Court of Appeal (Criminal Division). In [2023] EWCA Crim 445, the court received fresh evidence, granted leave on the fresh ground, allowed the appeal, quashed the conviction and ordered a retrial.
• Crown Court at Canterbury. The applicant was convicted on 1 November 2021 and sentenced on 17 March 2022. The single judge refused leave to appeal. On 18 January 2023, the full court refused leave on the original grounds but referred the fresh-evidence applications for determination.