R v OGM

The Court of Appeal will not interfere with informed tactical decisions by trial counsel unless they disclose incompetence, impropriety or a basis for treating the conviction as unsafe. Evidence is not fresh merely because it is presented after trial where the underlying theory was known beforehand. Proposed fresh evidence must satisfy the statutory criteria and be capable of bearing reasonably on the safety of the conviction. A disagreement with a jury’s assessment of factual issues does not found an appeal without irregularity or perversity. An extension of time requires both a good reason for the delay and a risk of significant injustice if it is refused.

The applicant sought an extension of 164 days to renew an application for leave to appeal against convictions for sexual offences against his daughter. He challenged trial counsel’s decision not to call certain defence witnesses, relied on proposed fresh evidence suggesting an alternative suspect, and disputed factual conclusions reached by the jury. The application followed refusal by the Single Judge. The applicant also sought leave under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence. The central issues were whether the delay should be extended and whether any proposed ground disclosed an arguable basis for concluding that the convictions might be unsafe.

1. Application refused. The court refused the extension of time and, in consequence, refused leave to appeal. Even if time had been extended, none of the grounds disclosed an arguable basis for concluding that the convictions might be unsafe.
2. Trial counsel’s decision not to call the proposed witnesses was tactical and followed careful, repeated discussions with the applicant, the witnesses and the solicitors. The proposed evidence carried significant risks, including supporting the prosecution case and exposing earlier complaints and adverse text messages. The material disclosed no incompetence, impropriety or lack of informed agreement. Such decisions fell within counsel’s professional judgment and did not provide an arguable ground of appeal.
3. The proposed alternative-suspect evidence did not satisfy section 23 of the Criminal Appeal Act 1968. The theory had been known and investigated before trial, only one witness offered vague and general support, and the other proposed witnesses added nothing capable of advancing the defence. The evidence could not reasonably bear on the safety of the convictions.
4. Challenges to the jury’s conclusions about recollection, counselling statements, messages and other factual matters were unarguable. Those matters had been explored at trial and addressed in the summing-up. Disagreement with the jury’s factual assessment cannot found a proper appeal without some irregularity or perversity, neither of which was alleged or apparent.
5. The governing approach to an extension of time requires a good reason for the delay and significant injustice if refusal would follow. The contemporaneous documents showed that the applicant had received advice about appealing. They did not explain or justify the substantial delay, and refusal would not cause significant injustice.

• Crown Court at Newcastle upon Tyne: the applicant was convicted on 5 February 2024 and sentenced on 7 May 2024.
• Court of Appeal (Criminal Division): the application for an extension of time and leave to appeal was refused.