Lielay Areguy v R

Fresh evidence does not justify relief on a conviction appeal where, even if admissible and reliable, it would not affect the safety of the verdict or undermine the essential prosecution case. The court may assess whether new material adds anything to matters already established at trial. Police officers who have repeatedly watched video footage may give opinions about what it shows, although the basis and value of such evidence remain relevant. A proposed ground not considered by the single judge faces a high threshold: it must be properly arguable and particularly cogent. Alleged deficiencies in representation require identifiable errors or irregularities causing an unfair trial or unsafe verdict.

In Lielay Areguy v R, the appellant sought leave to appeal against his conviction for conspiracy to murder following a joint trial at the Central Criminal Court. He had been sentenced to 18 years’ imprisonment.

He relied on a forensic video analyst’s report concerning CCTV footage and sought to add a new ground alleging that his representation at trial had been so inadequate that he had not received a fair trial. The central questions were whether the fresh evidence could afford a ground for allowing the appeal and whether the proposed new ground met the threshold for consideration.

The application for leave to appeal against conviction was refused. The court declined to admit the fresh evidence and refused leave to add the inadequate-representation ground.

1. Fresh evidence. The court accepted that the forensic video report was capable of belief and admissible, and assumed that there was a reasonable explanation for not adducing it at trial. The critical question was whether it afforded a ground for allowing the appeal. The report largely confirmed matters already established. The CCTV identification of the appellant’s Astra had been undermined by the mistaken identification of the vehicle as a saloon, the absence of its central brake light and the poor quality of the footage. Evidence that different vehicles had entered and left Academy Gardens would merely reinforce the unreliability of the identification. It did not undermine the compelling circumstantial case that the appellant had driven three men on a reconnaissance trip for the planned attack.
2. CCTV opinion evidence. Police officers who have spent a long time watching and re-watching video material may give an opinion about what can be seen. There were serious questions about the officer’s expertise and the equivocal value of his opinion. Even assuming that the opinion evidence should not have been admitted, its admission did not render the trial unfair or the verdict unsafe.
3. New ground of appeal. Under James [2018] EWCA Crim 285, a ground not put before the single judge must be properly arguable and particularly cogent. Although the involvement of an unqualified person in the preparation of the defence created a clear conflict risk, it did not itself affect the adequacy of the preparation. Counsel dealt with the late reliance on the CCTV evidence with considerable skill. Her considered decision not to instruct an expert, after exposing substantial weaknesses in the prosecution evidence, was reasonable and caused no unfairness.
4. The proposed ground was not arguable or cogent. No identifiable error or irregularity in the representation rendered the trial unfair or the conviction unsafe.

1. Court of Appeal (Criminal Division): Refused leave to appeal against conviction and refused leave to add the proposed inadequate-representation ground: [2023] EWCA Crim 669.
2. Central Criminal Court: Following a joint trial, the appellant was convicted of conspiracy to murder and sentenced to 18 years’ imprisonment.