R v MIK

When fresh evidence is tendered on a criminal appeal, the Court of Appeal must apply the broad interests-of-justice discretion under the Criminal Appeal Act 1968, giving specific attention to the statutory factors. A defendant must provide a reasonable explanation for evidence not adduced at trial and cannot reserve available evidence for an appeal. Evidence that is not fresh may still be admitted if, viewed in its proper case-specific context, it might reasonably have led to an acquittal or affected the jury’s verdict. The appellate court must assess safety, not decide guilt, while respecting the jury’s primary role. Material that adds little to evidence already heard, and has little forensic weight, will not satisfy that test.

The applicant was convicted in the Crown Court at Newcastle of rape, contrary to section 1(1) of the Sexual Offences Act 2003, and of controlling or coercive behaviour. He appealed against conviction on one remaining ground after other applications had been refused. A mobile phone found after trial contained messages said to be between the applicant and the complainant, including messages about lies, sexual activity and consent.

The applicant argued that the messages were fresh evidence relevant to the complainant’s credibility, his belief in consent and the rape conviction. The Crown accepted that the messages appeared credible on their face but argued that they could have been obtained before trial with reasonable diligence and would not have affected the verdict. The central issues were whether the statutory conditions for receiving fresh evidence were met and whether the messages might reasonably have led to an acquittal.

1. Appeal dismissed. The court accepted the material supplied for the purposes of the application and determined the remaining ground concerning the rape conviction.
2. Under section 23 of the Criminal Appeal Act 1968, the power to receive evidence not adduced at trial is wide and focuses on the interests of justice. The factors in section 23(2)(a)–(d) require specific attention but are neither exhaustive nor conclusive. The approach in R v Erskine and Williams [2009] EWCA Crim 1425 was applied.
3. A defendant must play a proper part in preparing the defence. Consistently with R v Beresford (1972) 56 Cr App R 143 and R v Pendleton [2001] UKHL 66, evidence cannot be kept in reserve for an appeal. The applicant knew of the phone and the messages and could have asked his solicitors to locate devices left at former addresses. Custody, drug use, changing phones and possible disclosure deficiencies did not remove that obligation. The evidence was therefore not fresh.
4. Even if evidence is not fresh, the court must assess its strength and possible effect on the safety of the conviction. The question is whether it might reasonably have led to an acquittal or affected the jury’s verdict, not whether the appellate court considers the accused guilty. The approach in R v Lundy [2013] UKPC 28 was applied.
5. The messages had to be considered individually, collectively and in context. The admissions of lying largely concerned already-evidenced disputes about infidelity. The message about never refusing sex was a sarcastic response in that context and shed little light on consent or belief in consent. The messages therefore added little to the material already before the jury and would not reasonably have led to an acquittal or affected the verdict. The court noted that some messages supported the prosecution case on violence, but did not rely on that point in reaching its decision.

1. Court of Appeal (Criminal Division): On 3 July 2026, the court determined the remaining ground of appeal against conviction and dismissed the appeal: [2026] EWCA Crim 961 .
2. Crown Court at Newcastle: On 8 December 2023, the applicant was convicted of rape and controlling or coercive behaviour. The judgment gives no separate citation for the Crown Court decision.