R v Jason John Ellis

An appellate court may refuse permission to adduce fresh evidence where the material does not arguably satisfy the statutory test and could not affect the safety of the convictions. It may also refuse an extension of time where the proposed appeal lacks merit, since an extension would serve no purpose. The decisive question remains whether the material identifies an arguable unfairness in the trial process or gives rise to doubt about the safety of the convictions.

The applicant was convicted at Chester Crown Court of three rapes, assault by penetration and sexual assault, and was sentenced to 16 years’ imprisonment.

His original application for leave to appeal against conviction was refused by a single judge. About 11 months late, he renewed the application before the full court, sought to amend his grounds, sought to rely on fresh evidence, and applied for bail.

The proposed complaints concerned trial counsel’s fitness, evidence said not to have been put to the complainant, witnesses not called, disclosure, and further material including proposed evidence from Mary Finemore. The central issue was whether any proposed ground or fresh evidence arguably rendered the convictions unsafe.

1. All applications were refused. The court agreed with the single judge’s reasons for rejecting the original proposed grounds of appeal.

2. The additional material did not arguably satisfy the fresh-evidence test in Criminal Appeal Act 1968, section 23. It substantially sought to re-argue matters advanced at trial. There was no proper explanation for not calling Mary Finemore at trial and, in any event, her proposed evidence would not affect the safety of the convictions.

3. The disclosure complaints disclosed no arguable error. Requests had been properly answered and the mobile-phone disclosure issue had been determined before trial. Nothing suggested any material withholding of evidence.

4. The court found no arguable unfairness in the trial process. The competing accounts had been properly explored, the jury had been properly directed, and there was ample evidence capable of supporting the complainant’s account. The further material raised no doubt about the safety of the convictions.

5. The renewal was far out of time and no sufficiently good reason for delay was given. Even if made in time, it would have been refused on its merits. There was therefore no purpose in extending time, permitting amended grounds, or admitting fresh evidence. The bail application consequently fell away.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction, made substantially out of time, refused.

• Crown Court at Chester: on 5 September 2022 the applicant was convicted of three counts of rape, assault by penetration and sexual assault, and sentenced to 16 years’ imprisonment.