Kevin Wishart v R

Fresh evidence should not be received under section 23 of the Criminal Appeal Act 1968 where it is largely inadmissible opinion, hearsay or speculation, is not capable of belief on disputed matters, and could not provide a ground for allowing the appeal. The assessment must address whether the proposed evidence could affect the actual basis on which the conviction or trial ruling rested.

Where the refusal to receive fresh evidence leaves no arguable ground of appeal, an extension of time serves no purpose and may also be refused.

In 2005, the applicant pleaded guilty at the Crown Court at Woolwich to theft and firearms offences. A robbery count had been stayed for abuse of process because of disclosure concerns. The trial judge later withdrew the applicant’s defence of duress from the jury on the basis that he had clear opportunities to withdraw from the crime.

More than 16 years later, the applicant sought an extension of time and leave to appeal against conviction. He also sought to adduce fresh evidence from a retired police officer and a journalist under section 23 of the Criminal Appeal Act 1968. The proposed evidence was said to establish improper non-disclosure, entrapment and material relevant to duress. The central question was whether that evidence could cast doubt on the safety of the guilty-plea convictions.

1. The applications were refused. The court declined to receive the proposed fresh evidence under section 23 of the Criminal Appeal Act 1968. The applications for an extension of time and for leave to appeal against conviction consequently failed.

2. The proposed evidence had to be assessed by reference to its admissibility, whether it was capable of belief, and whether it could afford a ground for allowing the appeal. Much of the retired officer’s material consisted of opinion, hearsay, office gossip and supposition. After excluding inadmissible material, very little potentially admissible evidence remained. It was contradicted by the evidence of senior officers and lacked independent support. The court was not persuaded that it was capable of belief on the disputed issues.

3. Even assuming that the evidence could be believed, it could not support either ground of appeal. It did not provide a basis for finding that relevant material had been withheld, that the premises were known in advance to be the target, or that the applicant had been entrapped. The trial judge had already considered disclosure and entrapment in detail. The disclosure deficiencies found at trial did not justify a stay of the theft count.

4. The proposed evidence could not affect the duress ground. The trial judge had withdrawn that defence because the applicant had clear opportunities to withdraw from the crime. Evidence concerning alleged non-disclosure or a third party could not cure that fatal weakness.

5. Since the fresh-evidence applications failed, there was no arguable ground of appeal. It was unnecessary to determine whether there was a reasonable explanation for the very substantial delay, because granting an extension could serve no purpose.

• Court of Appeal (Criminal Division) Refused the applications to receive fresh evidence, for an extension of time, and for leave to appeal against conviction.
• Crown Court at Woolwich In 2005, stayed the robbery count for abuse of process, but did not stay the theft count. The applicant pleaded guilty to theft and firearms offences after the defence of duress was withdrawn from the jury.