R v Paul Gellen

Evidence does not become fresh for an appeal merely because a convicted person later wishes to run a different case. Where proposed material was available at trial, was not called after competent advice, is speculative, or cannot assist on the real issue at trial, it cannot provide an arguable basis for challenging the safety of the conviction.

An appellate court may refuse an extension of time, permission to add grounds, and permission to adduce fresh evidence where, after reviewing all the material, the proposed appeal has no real prospect of success.

The applicant was convicted at the Crown Court at Chelmsford of assault by penetration, sexual assault and two counts of rape. He received an extended determinate sentence of 21 years’ imprisonment.

More than six months after conviction, he sought an extension of time to apply for leave to appeal and permission to adduce evidence from his partner. A single judge refused the applications on 9 May 2023. The applicant renewed them before the full court and later sought permission to add 22 grounds and to adduce further witness evidence.

His complaints concerned disclosure, the conduct of his trial representatives, jury directions, publicity, timing evidence, forensic evidence and unused social-media material. The central issue was whether the further material or proposed grounds could cast real doubt on the safety of the convictions.

1. All four applications were refused. The court also declined to adjourn the matter for possible assistance from Advocate. The conviction was already 20 months old, the original applications were substantially out of time, and Advocate had not itself made an application or assessed the merits.
2. The court reviewed all the original and additional material and concluded that an appeal would inevitably fail. None of the proposed grounds created an arguable challenge to the safety of the convictions.
3. The proposed evidence from K was not fresh. It had been available at trial, and the applicant had chosen not to call it after receiving competent professional advice. It neither undermined C’s evidence nor assisted on the decisive issue of consent. The applicant could not use the appeal process to substitute a different defence case for the considered case run at trial.
4. The remaining proposed material did not assist. The timing evidence had largely been before the jury and was not significant to consent. The social-media argument depended in part on myths about the conduct of sexual-assault complainants. The forensic and toxicology suggestions were speculative, while the complaints about edited evidence and jury directions disclosed no prejudice or error.
5. The court found no failure of disclosure, no arguable incompetence by the defence team, no improper judicial pressure on the jury, and no evidential basis for an unfair-trial complaint arising from adverse publicity. The further evidence and additional grounds could not cast real doubt on the safety of the convictions or justify a full appeal hearing.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 109, the court refused the renewed applications for an extension of time, leave to add grounds, and leave to adduce fresh evidence.
• Single judge of the Court of Appeal: On 9 May 2023, the single judge refused the original applications, finding no arguable grounds of appeal and no fresh evidence.
• Crown Court at Chelmsford: On 5 May 2022, the applicant was convicted of assault by penetration, sexual assault and two counts of rape. He was later sentenced to an extended determinate sentence of 21 years’ imprisonment.