R v Daniel James Roberts

In applications arising from a criminal conviction, a proposed new or substituted ground must disclose a reasonably arguable basis for concluding that the conviction is unsafe. Without that, there is no good reason or interests-of-justice basis to extend time or substitute grounds. Under section 23 of the Criminal Appeals Act 1968, fresh evidence that is capable of belief and admissible is insufficient if it could not afford grounds for allowing the appeal. The applicant must also give a reasonable explanation for not adducing it earlier. Significant unexplained delay is an additional adverse consideration.

The applicant was convicted at the Crown Court at Mold on five counts of sexual assault of a child under 13, one count of causing or inciting a child under 13 to engage in sexual activity, and two counts of engaging in sexual activity in the presence of a child, contrary to provisions of the Sexual Offences Act 2003. He was sentenced to six years’ imprisonment.

He sought leave to appeal against conviction, an extension of 1,817 days to renew his application, permission to substitute entirely different grounds, and permission to adduce fresh evidence from extended family members. The central issues were whether the proposed grounds disclosed an arguable unsafe conviction and whether the fresh evidence satisfied the statutory interests-of-justice test.

The court refused leave to appeal and all three associated applications.

1. The six proposed grounds did not identify an error of law, a trial irregularity, or any reasonably arguable underlying merit, whether considered individually or cumulatively. The second ABE interview and the matters said to be discrepancies were substantially before the jury. Minor differences in recollection were matters for the jury to assess against the central allegations.
2. The proposed fresh evidence did not materially advance the applicant’s case. The witnesses’ statements did not provide cogent evidence that the incidents could not have occurred. On the count concerning indecent exposure, the complainant’s lack of recollection did not create an evidential insufficiency because another witness gave evidence which, if accepted, could prove the allegation.
3. Because the proposed grounds did not disclose an arguable case that the convictions were unsafe, there was no good reason or interests-of-justice basis for extending time or substituting fresh grounds. The delays at every stage were considerable and were not properly explained.
4. Section 23 of the Criminal Appeals Act 1968 gives the Court an overriding power to admit fresh evidence where necessary or expedient in the interests of justice. Applying the matters identified in section 23(2), the evidence was capable of belief and would have been admissible. However, it would not have afforded grounds for allowing the appeal, and there was no reasonable explanation for failing to adduce it at trial. The witnesses were available, and the substance of their evidence was known at the time.

Leave to appeal, the extension of time, the application to substitute grounds, and the fresh evidence application were all refused.

• Court of Appeal (Criminal Division) — On 19 April 2023, the court refused leave to appeal against conviction and refused the related applications. [2023] EWCA Crim 477
• Court of Appeal (Criminal Division) — On 5 March 2021, an appeal against sentence was allowed only to vary the sexual harm prevention order, limiting restrictions on contact with children to male children.
• Crown Court at Mold — On 2 March 2017, the applicant was convicted and sentenced to six years’ imprisonment.