R v Eiraj Zarazadeh

On an application for leave to appeal against conviction, evidence is not fresh merely because it is produced after trial when it was available at trial and there is no reasonable explanation for the delay. Under section 23(2) of the Criminal Appeal Act 1968, the court considers whether the evidence is capable of belief, might afford a ground for allowing the appeal, and could affect the safety of the conviction. Speculative complaints, matters not raised at trial, and alleged deficiencies in representation do not justify leave where they could not arguably render the conviction unsafe. Leave and an extension of time were refused.

The applicant was convicted at retrial in September 2013 of a sexual offence and sentenced to nine years’ imprisonment. He was released in 2017 and lodged his appeal in June 2022, nearly nine years out of time. A single judge refused leave. The applicant renewed his application and sought an extension of time, relying on alleged fresh evidence, altered mobile-phone data, criticisms of the summing-up and trial process, and inadequate legal representation. The central issue was whether any ground disclosed an arguable basis for concluding that the conviction was unsafe.

The Court of Appeal Criminal Division refused leave to appeal and refused the extension of time.

1. Fresh evidence. Applying section 23(2) of the Criminal Appeal Act 1968, the court considered whether the proposed evidence was capable of belief, whether it might afford a ground for allowing the appeal, and whether there was a reasonable explanation for failing to adduce it at trial. The former partner’s evidence was available at trial, with no reasonable explanation for its late production. Her three conflicting accounts also made the new account incapable of belief. In any event, the evidence could not arguably render the conviction unsafe.
2. Mobile-phone data. An error in the sequence of two calls did not provide a credible basis for alleging deliberate alteration or prosecutorial bad faith. The error could not realistically have affected the jury’s assessment of the complainant’s account and was more likely to have resulted from human error.
3. Summing-up and trial process. The court agreed entirely with the single judge’s assessment that the summing-up disclosed no misdirection or unfairness. The directions concerning the complainant’s evidence, an admitted lie, bad character, the defence statement and the scientific evidence did not undermine the safety of the conviction. Allegations concerning the video link and a knocking sound were speculative or matters that should have been raised with the trial judge at the time. Use of the complainant’s name was ordinary court practice.
4. Representation and delay. The material showed that the applicant had retained the same legal team over an extended period and had been advised about his options. None of the complaints about representation, even if true, could arguably render the conviction unsafe. The substantial delay was unjustified, and an extension would have been futile.

1. Court of Appeal Criminal Division (single judge): refused leave to appeal.
2. Court of Appeal Criminal Division: considered the renewed application for leave and the application for an extension of time, and refused both.