R v AFH

Under Criminal Appeal Act 1968 section 23, the Court of Appeal must decide whether receiving fresh evidence is necessary or expedient in the interests of justice. It must consider the evidence’s apparent credibility, admissibility, potential to afford a ground of appeal, and the explanation for not adducing it at trial.

The absence of a reasonable explanation is not invariably fatal. However, evidence that merely reinforces an uncontroversial aspect of the trial evidence, and is insufficiently probative of a complainant’s credibility or of alleged collusion, gives no ground to regard convictions as unsafe. In sentencing, the proper total sentence for multiple serious offences may exceed the guideline maximum for a single lead offence where this is required to reflect totality and cumulative criminality.

The applicant was convicted at the Crown Court at Ipswich of eight offences, including multiple incidents of assault by penetration and sexual assault against one complainant, sexual assaults against a second complainant, and assault occasioning actual bodily harm. He received a total sentence of 15 years’ imprisonment, with the sentence on the lead count reflecting the overall criminality.

He sought leave to appeal conviction and sentence, extensions of time, and permission to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The proposed material consisted principally of Instagram messages between the applicant and one complainant. The central issues were whether that evidence should be received and whether the total sentence was manifestly excessive.

1. The court refused permission to adduce the proposed fresh evidence, refused leave to appeal against conviction, and refused leave to appeal against sentence. The ancillary applications accordingly fell away.

2. Section 23 of the Criminal Appeal Act 1968 required the court to determine whether receiving the evidence was necessary or expedient in the interests of justice, while having particular regard to credibility, potential appellate significance, admissibility, and the explanation for its absence at trial. The messages were capable of belief and would probably have been admissible in cross-examination. The applicant, however, had no reasonable explanation for failing to obtain them before trial, since he knew his Instagram log-in details and had referred to the messages in interview.

3. That failure was not decisive by itself. The court nevertheless concluded that the messages could not afford a ground of appeal. The trial evidence already accepted that, apart from the alleged abuse, the applicant and the complainant generally had a good relationship. The messages showed no more than some affection within that relationship. They were insufficiently probative of unreliability or collusion to create any concern about the safety of the convictions. The jury had heard and rejected the case of collusion after being properly directed.

4. The sentence was not manifestly excessive. Although 15 years exceeded the guideline maximum for one Category 2A assault by penetration offence, the judge was entitled to use the lead count to reflect totality. The sentence addressed repeated sexual offending and a related assault against two vulnerable children, as well as the cumulative harm and aggravating features. A total of 15 years for that overall offending could not properly be described as excessive.

1. Court of Appeal (Criminal Division) In [2024] EWCA Crim 1614, the court refused the fresh-evidence application and refused leave to appeal against conviction and sentence.

2. Crown Court at Ipswich On 3 July 2023, the applicant was convicted by majority verdict of eight counts. On 30 October 2023, he was sentenced to a total of 15 years’ imprisonment.