Thomas Edward Cashman v R

Applications for fresh evidence and investigations by the Criminal Cases Review Commission under the Criminal Appeal Act 1968 require more than an assertion that an inquiry might reveal a miscarriage of justice. Evidence must be capable of belief. Inherently fanciful material cannot satisfy section 23(2)(a). An investigation may be directed only where it is likely to enable the court to resolve the relevant matter and the statutory conditions are met. Proportionality is not a substitute for that test. An investigation may be refused where allegations are based on anonymous multiple hearsay, lack identifying detail and are inherently improbable, even if further statements might be obtained.

The applicant had been convicted at the Crown Court at Manchester, after a 25-day trial before Mrs Justice Yip and a jury, of murder, attempted murder, wounding with intent and two firearms offences. After the Single Judge refused leave to appeal, he sought leave from the Court of Appeal and an investigation by the Criminal Cases Review Commission.

The applications alleged two jury irregularities: that police had supplied jurors with personal panic alarms and that police had secretly shown the jury prejudicial material during retirement. The allegations came through an unidentified chain of multiple hearsay. The central issue was whether the material was sufficiently credible, and whether an investigation was likely to resolve the allegations.

1. Applications refused. The Court of Appeal refused leave to appeal against conviction and refused to direct an investigation by the Criminal Cases Review Commission.
2. The court held that section 23 and section 23A of the Criminal Appeal Act 1968 are complementary. Evidence must be capable of belief for the purposes of an appeal or application for leave. In an application for leave, an investigation must be likely to result in the court resolving the matter. The matter must also be one which cannot be resolved by the court without the investigation.
3. The statutory test is not whether the proposed inquiry is proportionate. An investigation should not be ordered unless there is a credible matter to investigate and the investigation may sensibly bring resolution. The court rejected the suggestion that a simple question to jurors would be sufficient. The proposed inquiries would have been intrusive, complex and costly.
4. The alleged supply of prejudicial material, if established, would amount to a jury irregularity. The alleged supply of panic alarms might also amount to one. However, there was no admissible evidence before the court. The account was multiple hearsay and the court would not have been persuaded to admit it through the gateways in the Criminal Justice Act 2003. Even if put into witness statements, it lacked credibility. The allegations were anonymous, unsupported by identifying detail and inherently improbable in light of the security arrangements and the jury’s repeated instructions.
5. The court distinguished the fact-specific decisions in Baybasin [2013] EWCA Crim 2357 and Farah [2023] EWCA Crim 731, which involved materially stronger evidence. The judgment was directed to be citable notwithstanding the refusal of leave. No exceptional representation order was made.

1. Court of Appeal (Criminal Division): On 20 November 2024 the court refused leave to appeal and refused to order a Criminal Cases Review Commission investigation. Reasons were handed down on 13 December 2024 under [2024] EWCA Crim 1543.
2. Crown Court at Manchester: Following trial before Mrs Justice Yip and a jury, the applicant was convicted on 30 March 2023 and sentenced on 3 April 2023.