R v Andrew James Pilley

In an appeal based on fresh evidence, the decisive question remains whether the conviction is unsafe. A diagnosis of ADHD or cognitive difficulty does not by itself establish an inability to participate effectively, and the absence of adaptations does not necessarily make a trial unfair. The court must assess, in the round and on the facts, whether the defendant understood the proceedings, gave instructions and presented the case fairly. Functional impact must be assessed alongside evidence of real-world performance, rather than by clinical testing alone. Retrospective evidence about how trial counsel might have acted should be approached cautiously. Here, the applicant actively participated in his defence, gave detailed evidence, engaged with complex material and had his case determined on extensive documentary evidence and recordings. The fresh evidence therefore afforded no ground for treating the convictions as unsafe.

After a seven-month jury trial at the Crown Court at Preston, the applicant was convicted of fraudulent trading, facilitating criminal property and fraud by misrepresentation, and was sentenced to 13 years’ imprisonment. A separate ground concerning a jury irregularity had already been refused by another constitution of the Court of Appeal. This application concerned an extension of time and leave to appeal on a fresh-evidence ground based on later diagnoses of ADHD and alleged cognitive impairment. The applicant argued that the conditions affected trial preparation, his instructions and his evidence, and might have caused the jury to misinterpret his presentation. The Crown disputed their severity and functional effect. The central issue was whether the convictions were unsafe notwithstanding the fresh psychological evidence.

Decision

1. The court considered the proposed fresh evidence de bene esse under section 23 of the Criminal Appeal Act 1968. That consideration was undertaken to decide whether the evidence should be received, not on the assumption that it had already been admitted.
2. An appeal based on fresh evidence raises the same ultimate question as any other criminal appeal: whether the conviction is unsafe. The court applied that principle, identified in R v Pendleton [2001] UKHL 66 and R v Pabon [2018] EWCA Crim 420, together with the statutory considerations concerning belief, potential grounds of appeal, admissibility at trial and the explanation for not adducing the evidence earlier.
3. Neurodevelopmental conditions may create difficulties in criminal proceedings, and appropriate adaptations may sometimes be required. However, ADHD, neurodiversity or cognitive difficulty does not itself establish an inability to participate effectively. The question is fact-specific and must be assessed in the round by asking whether the defendant understood the proceedings, gave instructions and presented the case fairly.
4. The functional impact of a condition must be assessed by considering clinical evidence alongside the substantial evidence of the defendant’s performance in real-world settings. Clinical assessment and psychometric testing cannot be treated as determinative in isolation. The court accepted the applicant’s diagnosis and proceeded broadly in his favour on the extent of his difficulties, but preferred Professor Young’s evidence only to the extent that it addressed the disabilities themselves.
5. Evidence from trial counsel about how the trial might have been conducted differently after the later diagnoses was relevant but required caution because of the risk of hindsight. The applicant’s failure to give evidence would also have exposed him to a potentially compelling adverse inference under section 35 of the CJPOA 1994. It was therefore doubtful that not calling him would have produced a fairer or safer trial.
6. The applicant had actively participated in preparing and presenting his defence, gave detailed and articulate evidence, engaged with complex material and was represented by experienced lawyers. The judge’s firm interventions were directed to procedural clarity and did not create unfairness. The jury’s assessment depended substantially on documentary evidence and recordings, not merely on demeanour.
7. Even considered individually or cumulatively, and on a basis favourable to the applicant, the fresh evidence afforded no ground for allowing the appeal. It was therefore not received, and the applications for an extension of time and leave to appeal were refused.

1. Crown Court at Preston: Following a lengthy jury trial, the applicant was convicted and sentenced on 4 July 2023 to a total of 13 years’ imprisonment.
2. Court of Appeal (Criminal Division): A different constitution had refused leave on a separate jury-irregularity ground. In [2026] EWCA Crim 384, this court considered only the fresh-evidence ground, declined to receive the evidence, and refused the applications for an extension of time and leave to appeal. The costs application was directed to be determined on the papers.