Rasib Ghaffar v R

Fresh evidence will be admitted on a criminal appeal only where the statutory and interests-of-justice requirements are met. The court must assess whether the evidence is capable of belief, whether it could afford a ground of appeal, whether it would have been admissible at trial, and whether there is a reasonable explanation for not adducing it earlier. The central practical question is whether the evidence might reasonably have affected the jury’s decision so as to render the conviction unsafe. The court may hear oral evidence where written evidence falls into the category of evidence that is possibly capable of belief. Evidence that is vague, unsupported, inherently inconsistent, or incapable of belief will not satisfy the statutory test. Nor will evidence that would add little to material already before the jury or where the failure to call it is unexplained.

After a 24-day trial at the Crown Court at Southwark, Rasib Ghaffar was convicted by a majority of conspiracy to commit fraud by false representation and sentenced to three years’ imprisonment. He sought leave to appeal against conviction and permission to rely on fresh evidence under Criminal Appeal Act 1968, section 23, and CPR Part 39.3.

The proposed evidence comprised statements from Farhad Hussain, Mohammed Tahir Khan and Tina David, together with evidence from the applicant’s solicitor concerning efforts to locate the witnesses. The evidence was principally directed to the legitimacy of Kandi Consulting, the operation of its bank account, and the extent of the applicant’s work on the underlying Miah case. The court had to decide whether to receive the evidence and, if so, whether it could render the conviction unsafe.

1. Fresh evidence. The court declined to receive any of the proposed fresh evidence and refused leave to appeal against conviction. The application had to be assessed by reference to the factors in section 23(2) of the Criminal Appeal Act 1968, together with the overarching question whether receiving the evidence was necessary and expedient in the interests of justice.
2. The court adopted the approach that the relevant question is what impact the evidence would have had on the jury and whether it might reasonably have affected the decision to convict so as to make the conviction unsafe. The court may hear oral evidence where written evidence is possibly capable of belief, although the statutory factors remain central.
3. Mr Hussain’s evidence about Kandi Consulting and the bank account was not capable of belief. It was unsupported by business records or independent evidence, vague about the alleged services and payments, and materially inconsistent with the applicant’s account. Even if credible, it would not reasonably have affected the verdict. The Kandi payments were only part of the prosecution case, the evidence concerning them was already before the jury, and the proposed evidence did not provide a plausible explanation for the account being opened in the applicant’s name.
4. Mr Khan was regarded as credible, but his evidence did not support the case that Kandi Consulting was a genuine business and would have added little to the defence case concerning the applicant’s work on the Miah case. The failure to call him was also unexplained. Ms David’s evidence gave limited support to the existence of Kandi Consulting as a business, but she did not attend to give oral evidence, her evidence lacked detail, and there was no reasonable explanation for not adducing it at trial.
5. The evidence therefore failed both the belief and potential-impact requirements. The repeated failure to obtain, preserve or pursue evidence from witnesses known to be potentially important was not reasonably explained. It was neither necessary nor expedient in the interests of justice to receive the evidence.

• Court of Appeal (Criminal Division): The application to rely on fresh evidence and for leave to appeal against conviction was refused.
• Court of Appeal (Criminal Division): An earlier appeal against sentence was unsuccessful: [2024] EWCA Crim 1277.
• Crown Court at Southwark: Following a 24-day trial, the applicant was convicted by a majority and sentenced to three years’ imprisonment.