R v Shaun Gilder

An applicant seeking to introduce wholly fresh grounds shortly before a criminal appeal faces a high hurdle. The court considers the delay and its reasons, whether the relevant matters were known to former lawyers, the interests of justice, the overriding objective and resulting prejudice. Fresh evidence requires consideration of its credibility, potential assistance to the appeal, admissibility at trial and the explanation for not adducing it earlier. A breach of a code under the Police and Criminal Evidence Act 1984 does not automatically exclude interview evidence. The touchstone under section 78 is fairness in all the circumstances. Where late grounds lack good explanation or arguable merit, permission, an extension of time and leave to appeal may be refused.

The applicant was convicted in the Crown Court at Norwich of two counts of rape and one count of assault by penetration, and was sentenced to eight years’ imprisonment on each count concurrently. He sought an extension of time and leave to appeal against conviction. An earlier Court of Appeal panel directed an investigation by the Criminal Cases Review Commission into an alleged connection between a juror and the complainant. The investigation found no irregularity.

Shortly before the hearing, the applicant sought to abandon his original grounds and rely on four fresh grounds concerning fresh evidence, the admission of his police interview, alleged defects in an earlier police investigation, and the trial judge’s conduct and directions. The central issues were whether the fresh grounds should be permitted and whether the jury-irregularity ground justified an extension of time and leave.

Disposition

The court refused permission to rely on the fresh grounds. It also refused the applications for an extension of time and leave to appeal against conviction.

1. Fresh grounds. The principles identified in R v James [2018] EWCA Crim 285, and reflected in paragraph 10.4.5 of the Criminal Practice Directions 2023, applied. An applicant seeking to introduce entirely fresh grounds at a very late stage faces a high hurdle. Relevant considerations include the extent of and reasons for delay, whether the facts or issues were known to former lawyers, the interests of justice, the overriding objective, and prejudice to the prosecution and the court’s ability to deal with the grounds.
2. Fresh evidence. Under section 23 of the Criminal Appeal Act 1968, the court considered whether the proposed evidence was capable of belief, might afford a ground for allowing the appeal, would have been admissible at trial, and whether there was a reasonable explanation for not adducing it. Evidence from the applicant’s family about the layout of the house could and should have been given at trial. The further alleged discrepancies and social-media material did not create a realistic prospect that the convictions were unsafe.
3. Admissibility issues. Evidence concerning alleged tax affairs would have required the statutory threshold in section 100 of the Criminal Justice Act 2003. Evidence of sexual behaviour could not be used merely to impugn credibility and could only have been admitted through the narrow gateways in sections 41(3) or 41(5) of the Youth Justice and Criminal Evidence Act 1999. A breach of a police-code requirement did not itself make the interview inadmissible. The section 78 test was fairness, having regard to all the circumstances, including how the evidence was obtained, rather than whether it was damaging.
4. Other grounds. The proposed criticism of trial counsel was raised too late to obtain the appellant’s waiver of privilege and counsel’s observations in accordance with the procedure in R v McCook [2014] EWCA Crim. 734. The complaints about the 2004 investigation had no good explanation for their lateness. The judge had modified the draft direction after defence submissions, and the court detected no imbalance in the summing-up.
5. Jury irregularity. The Commission’s investigation established no connection between the juror and complainant and no basis to conclude that the jury had acted otherwise than in accordance with its oaths or affirmations.

1. Court of Appeal (Criminal Division), 10 December 2025: Refused permission to rely on the fresh grounds and refused an extension of time and leave to appeal against conviction.
2. Court of Appeal (Criminal Division), 16 January 2025: Directed the Criminal Cases Review Commission to investigate the alleged jury irregularity under section 23 A of the Criminal Appeal Act 1968, refused leave on the remaining original ground, and adjourned the applications.
3. Crown Court at Norwich: Convicted the applicant of two rapes and one assault by penetration, then sentenced him to concurrent terms of eight years’ imprisonment.