Fresh Evidence After a Second Trial: When an Uncalled Eyewitness Can Render a Prior Conviction Unsafe (R v Erorh)
Case: Erorh, R. v
Citation: [2025] EWCA Crim 1630
Court: England and Wales Court of Appeal (Criminal Division)
Date: 6 November 2025
1. Introduction
This case concerns an unusual procedural sequence: the applicant (aged 17 at the time of the incident) was first convicted in 2020 of wounding with intent following a stabbing outside the “After Hours” restaurant in New Cross Road, London. The victim, Ahmed Torfi, survived initially but sustained catastrophic injuries and later died in 2021. That death led to a second prosecution for murder (and manslaughter in the alternative) in 2024, at which the applicant was acquitted.
The present application sought to overturn the first conviction. The central issue in both trials was self-defence. The pivotal development was that an independent eyewitness, Joshua Francis, gave evidence at the second trial supporting the applicant’s account of being attacked first—evidence that had not been adduced at the first trial. The applicant applied (i) to admit Mr Francis’ evidence as fresh evidence under section 23 of the Criminal Appeal Act 1968, (ii) for an extension of time, and (iii) for leave to appeal.
Key question: Can the Court of Appeal admit (and act upon) fresh evidence that was in substance available at the time of the original trial but was not pursued, where the omission is not fairly attributable to the defendant and the evidence has since been fully tested in a second jury trial?
2. Summary of the Judgment
The Court of Appeal (Whipple LJ giving the judgment) held that:
- Mr Francis’ evidence should be admitted as fresh evidence under section 23 (despite a weak explanation for why it was not obtained for the first trial).
- Time should be extended and leave to appeal granted.
- In light of the fresh evidence, the court had doubt about the safety of the first conviction; the conviction was therefore unsafe.
- The appeal was allowed and the conviction quashed; the prosecution did not seek a retrial.
3. Analysis
3.1 Precedents Cited
This authority anchored the court’s cautionary starting point: fresh evidence applications are fact-specific and it is “only in an exceptional case” that an applicant should rely on evidence available at trial but not put to the jury. The judgment emphasises systemic concerns: the “trial process must not be subverted” and the integrity of the statutory appeal framework must be protected.
Influence on outcome: The court treated Erskine/Williams as a warning against routine “second bites”. However, it used the case’s own unusual features (a second trial where the evidence was tested) to justify treating this as one of the “rare” exceptions.
The court relied on the summary at [24] (Hughes LJ) to frame the test for safety where fresh evidence arises. The judgment rejects a simplistic “jury impact” test as determinative. Instead, the Court of Appeal must form its own view whether the fresh material causes it to doubt the safety of the conviction, using potential jury impact as a “check” in difficult cases.
Influence on outcome: The court applied the structured approach: (i) it evaluated the fresh evidence in the context of the whole case, and (ii) it used the second jury’s acquittal as a powerful real-world indication that the evidence was capable of affecting the verdict—confirming its own doubt about safety.
These authorities were invoked (through Mushtaq Ahmed) for the modern appellate methodology on fresh evidence:
- Pendleton and Stafford v DPP: the jury-impact question is not the legal test; it may be used as a mechanism to “test” the appellate court’s conclusion on safety.
- Dial: the “primary question” is for the Court of Appeal itself; not “what effect” the evidence would have had on the jury.
- Burridge: a recent Court of Appeal synthesis (cited as supportive analysis) reinforcing the same approach.
Influence on outcome: These cases legitimised the court’s dual-track reasoning: it stated the correct primary test (its own evaluation of safety) while also drawing confirmatory support from the practical jury outcome at the second trial.
Quoted for the proposition that, however the safety question is examined, the essential and ultimate question is whether, in light of the fresh evidence, the convictions are unsafe.
Influence on outcome: Hakala served as a doctrinal “backstop”, keeping the court focused on safety as the sole dispositive inquiry once fresh evidence was admitted.
3.2 Legal Reasoning
(A) The section 23 gateway: admitting evidence that was not adduced at trial
The court carefully applied the statutory criteria in section 23(2):
- Capability of belief (s.23(2)(a)): The court held Mr Francis was “plainly capable of belief”. It acknowledged deficiencies—especially conflict with CCTV on who was on top during a later phase—but emphasised that Mr Francis addressed a critical earlier period not captured on CCTV and not contradicted by any other independent evidence.
- May afford ground for allowing appeal (s.23(2)(b)): The evidence was material to the “central issue”: whether the applicant acted in self-defence.
- Admissibility at trial (s.23(2)(c)): Common ground that it would have been admissible.
- Reasonable explanation for failure (s.23(2)(d)): The court found the defence explanation “weak” and even “regrettable, even unreasonable”. Yet it treated this as one factor, not a veto.
The most important move in the reasoning is the court’s balancing exercise on s.23(2)(d). Although it found the failure to secure the evidence for trial difficult to justify (and noted that witness summons procedures might have been available), it concluded that the omission was “not the fault of the applicant” and that the wider integrity concerns were neutralised by the “highly unusual” context—namely that there had been a second trial in which the evidence was fully tested.
(B) Extension of time and leave
Once the evidence was admitted, the extension of time followed as a practical consequence, with no prosecution resistance. Leave was granted because the fresh evidence raised a serious issue appropriate for full appellate determination.
(C) Safety of conviction: the appellate court’s own evaluation, checked against jury reality
Applying R v Mushtaq Ahmed [2010] EWCA Crim 2899, the court:
- Identified the decisive trial issue: self-defence.
- Assessed the role of Mr Francis’ evidence: it was “powerful support” on the start of the altercation—a period not shown on CCTV and lacking other independent witnesses.
- Accepted limitations (hostility to police; inconsistencies with CCTV) but treated them as matters going to weight rather than annihilating credibility, especially because Mr Francis conceded some points when confronted with CCTV.
The court ultimately expressed “some doubt” about the safety of the conviction. It went further: even if the case were “difficult” (it said it was not), it would “test” its view by asking whether the evidence might reasonably have affected the first jury. The second jury’s acquittal—after hearing and testing Mr Francis—provided a ready answer: the fresh evidence did affect a jury, making it reasonable to suppose it might have affected the first jury too.
Importantly, the court insulated the trial process from criticism: it described the first trial as “conspicuously fair” and the judge’s handling as “exemplary”. The conviction was quashed not because the trial was flawed, but because later-admitted evidence undermined confidence in the verdict’s safety.
3.3 Impact
(1) Fresh evidence jurisprudence: a pragmatic “exceptional case” template
The decision illustrates a concrete pathway by which the Court of Appeal may admit evidence that was, in a sense, available at trial (here, signposted in unused material via DS Crofts’ statement) but not pursued. The judgment does not weaken the general rule; rather, it clarifies that:
- s.23(2)(d) is a factor, not an absolute bar, even when the explanation is weak;
- where the omission is not fairly attributable to the defendant, and
- where later proceedings provide unusually robust testing of the new evidence (a second jury trial on essentially the same factual issue),
the “interests of justice” can justify admission without undermining system integrity.
(2) Weight of a second jury’s acquittal as a “reality check” (not a legal shortcut)
The court did not treat acquittal at the second trial as automatically invalidating the first conviction; it instead treated the second verdict as strong confirmatory context for the likely materiality and credibility of the fresh evidence. Future appellants may cite this as support for using later jury outcomes as part of the Pendleton/Dial “check”, while recognising that the Court of Appeal must still reach its own conclusion on safety.
(3) Practical implications for defence preparation and unused material
The judgment indirectly underscores the importance of acting on unused material that identifies potential eyewitnesses. While the court was sympathetic to the applicant, it described the explanation for non-pursuit as “weak” and suggested that stronger steps (including a witness summons) could have been taken. Practitioners should expect courts to scrutinise diligence closely—this case succeeded because of highly unusual subsequent developments.
(4) Finality and retrial discretion
The prosecution did not seek a retrial, and the court agreed there was “no point”, noting that the applicant had “had his retrial in one sense” via the murder proceedings. This reflects a pragmatic approach where the factual controversy has already been ventilated before a jury with the new evidence.
4. Complex Concepts Simplified
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“Fresh evidence” (section 23 Criminal Appeal Act 1968):
Evidence not presented to the original jury that the Court of Appeal may admit if necessary or expedient in the interests of justice. The court must consider credibility, potential to support an appeal, admissibility, and the explanation for why it was not used.
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“Unsafe conviction”:
The appeal court does not ask whether the original trial was fair in the abstract; it asks whether, in light of all relevant material (including admitted fresh evidence), it can still be confident in the correctness of the guilty verdict.
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“Jury-impact test” (as a check, not the rule):
Following Pendleton and Dial, the Court of Appeal’s job is to decide safety itself. It may, especially in hard cases, ask as a sense-check whether the new evidence might reasonably have affected the jury.
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Section 74 of the Police and Criminal Evidence Act 1984 (as referenced in this judgment):
The judgment records that, by operation of section 74, the burden in the second trial was on the applicant to prove self-defence, and that the jury was satisfied on the balance of probabilities. In practical terms within this case, the earlier conviction shaped how issues were framed in the later proceedings, leaving self-defence to be established to the applicable standard as directed in that second trial.
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“Rolled-up hearing”:
A procedural listing where the court considers leave to appeal and, if granted, proceeds immediately to the substantive appeal.
5. Conclusion
R v Erorh is a significant modern example of the Court of Appeal admitting fresh evidence notwithstanding a weak explanation for its absence at trial, because the interests of justice demanded it in an exceptional factual setting. The court reaffirmed the strictness of the general rule against re-running trials with evidence that could have been adduced, but demonstrated that section 23(2)(d) does not operate as an automatic bar.
The key takeaway is the court’s integrated approach: it protected the integrity of the trial system (expressly praising the fairness of both trials) while recognising that an independent eyewitness account—addressing the unseen start of a confrontation and subsequently accepted by a second jury—could and did undermine confidence in the safety of the earlier conviction. The result was the quashing of the conviction with no retrial, reflecting both fairness to the appellant and finality after the issues had already been fully tested before a jury.