Fresh Evidence on Appeal: Credibility, Materiality, and “Perfunctory” Diligence Under s.23 Criminal Appeal Act 1968

A. Precedents Cited

1) R v Pendleton [2011] UKHL 66

The Court relied on R v Pendleton [2011] UKHL 66 as authority for the central appellate inquiry where fresh evidence is advanced: the Court must evaluate the potential impact the new material might have had on the jury and whether, in light of it, the conviction is unsafe. Pendleton is frequently cited for reinforcing that the appellate court does not retry the case, but must assess whether the fresh evidence would have materially altered the safety of the verdict.

2) R v Barry George [2007] EWCA Crim 2722

The judgment quoted the well-known test stated in R v Barry George [2007] EWCA Crim 2722 at [52]:

“... we have to decide whether, had the evidence that we have heard been adduced at trial, this might reasonably have affected the decision of the jury to convict, for this is a good test of whether, in the light of the fresh evidence, the conviction is unsafe.”

This formulation shaped the Court’s approach in two ways:

• It required more than showing the evidence was relevant or supportive; it had to be capable of making a reasonable difference to the jury’s decision.
• It directed attention to the trial landscape: what the jury already heard (e.g., bank statements, the applicant’s own explanations, the proven existence of false NTT claims) and whether the fresh evidence meaningfully changed that picture.

3) Sales [2000] 2 Cr.App.R 431

Sales [2000] 2 Cr.App.R 431 was cited for procedure and principle on handling proposed fresh evidence:

• The Court may receive fresh evidence even if the s.23(2) factors are not all satisfied (confirming the flexibility of s.23(1)’s “interests of justice” discretion).
• The Court may hear witnesses de bene esse to decide whether written evidence is “possibly capable of belief” and thus whether it should be received.

The Court explicitly applied the Sales categorisation (plainly believable / plainly unbelievable / possibly believable), placed the statements in the third category, and heard oral evidence from Mr Hussain and Mr Khan to test credibility. This demonstrates the Court’s willingness to conduct targeted oral inquiry—but equally its readiness to reject evidence after testing it.

4) [2024] EWCA Crim 1277

The Court referenced the earlier sentencing appeal decision with neutral citation [2024] EWCA Crim 1277 to set out background facts. While not used as a doctrinal authority on s.23, it anchored the factual matrix: the Miah case, the costs orders, and the structure of the alleged conspiracy.

B. Legal Reasoning

1) The statutory framework: section 23 Criminal Appeal Act 1968

The Court methodically applied s.23(2)’s four factors as the “particular regard” considerations, within the overarching s.23(1) test of whether receiving evidence is “necessary and expedient in the interests of justice.” The judgment illustrates that, in practice, these factors operate cumulatively and interactively:

• Capability of belief is foundational: if the Court concludes evidence is not credible, the application will usually fail without needing extended analysis of jury impact.
• Materiality/unsafe conviction is decisive even where evidence is arguably credible: supportive evidence that does not move the needle on safety will not be received.
• Reasonable explanation for absence at trial carries real weight: where the defence could and should have adduced the evidence, the Court is reluctant to permit appeals to become vehicles for “second-run” tactical improvement.

2) Farhad Hussain: credibility collapse on both the business and the bank-account narrative

Mr Hussain’s evidence was central because it purported to corroborate the applicant’s explanation that the Kandi Consulting account was not truly the applicant’s and that payments into it were legitimate business receipts.

(i) The alleged business: absence of records and lack of specificity

The Court viewed the claimed operation of Kandi Consulting (2009/2010 to 2014) as remarkable for its complete absence of documentation:

• No business accounts, tax returns, invoices (save one), office rental documents, equipment records, payroll records, or emails;
• No independent confirmation from any non-implicated firm of solicitors;
• No meaningful detail of the “£125,000” agreement or what services justified such a sum.

In fraud-linked contexts, courts are particularly alert to “post hoc” narratives that are long on assertion and short on verifiable detail. The Court also treated the sole recovered invoice (23 October 2012) as suspicious because it was calculated by reference to NTT allowances (a feature said to mirror the fraudulent method) rather than by reference to work done.

(ii) The bank account: inherently incredible explanation and internal inconsistency

The Court found the explanation for opening a business account in the applicant’s name “trading as Kandi Consulting” to be inherently incredible, especially Mr Hussain’s suggestion that bank staff were content for an account to be opened in one person’s name to be operated by another person with poor credit and not named on the account.

The Court also highlighted material inconsistency between:

• The applicant’s trial evidence (which avoided clearly stating that the bank was told the account was not his); and
• Mr Hussain’s oral account (which asserted the bank employee expressly accepted the arrangement).

The Court treated these as not mere “detail” discrepancies, but as going to the plausibility of the core defence narrative.

(iii) Jury impact: even if admitted, the evidence would not have made a reasonable difference

The Court rejected the submission that the Kandi payments were “central” such that corroboration would undermine the verdict. It emphasised:

• The conspiracy and falsity of NTT claims were effectively established by the time of the applicant’s trial (including prior convictions);
• The jury’s real task was whether the applicant was a knowing and dishonest participant, per the trial direction quoted in the judgment;
• The jury already had the Kandi Consulting bank statements and the applicant’s explanations for payments out; Mr Hussain’s vague evidence would add little beyond what was already before the jury.

(iv) Failure to adduce at trial: “perfunctory” efforts and absence of reasonable explanation

The Court’s treatment of defence diligence is a defining feature of the judgment. It found:

• Mr Hussain was an “obvious” witness; counsel had flagged the importance years earlier;
• No satisfactory explanation existed for not obtaining a signed statement (which also deprived the defence of potential hearsay options if unavailability arose);
• Later attempts to locate him were superficial: no basic online searches, no inquiry agent, no attempt to contact his brother (the alleged introducer);
• The solicitor’s failure even to inform counsel about the draft statement was described as an “extraordinary view” and indicative of inadequate seriousness.

These findings fed directly into s.23(2)(d) and reinforced the ultimate “interests of justice” conclusion: this was not fresh evidence that could not have been obtained; it was evidence not obtained because of inadequate preparation.

3) Mohammed Tahir Khan: credible but immaterial, and still no reasonable explanation

Mr Khan, a former ALH caseworker, said the applicant worked on the Miah case over an extended period within a small team. The Court accepted Mr Khan as credible but found his evidence unlikely to affect the jury because:

• It did not materially support the existence or legitimacy of Kandi Consulting;
• It was largely consistent with uncontroversial aspects of the defence (that the applicant did some work and claimed to have worked longer);
• The “7 days” point was a “red herring” and not the prosecution case as to the applicant.

Notably, the Court still criticised the failure to call Mr Khan at trial as “extraordinary” given his proximity to the applicant, Ms Maciel, and the small team. Again, defence efforts were labelled “perfunctory,” and the Court found no reasonable explanation under s.23(2)(d).

4) Tina David: limited probative value without oral testing; no reasonable explanation

Ms David’s statement offered some support for Kandi Consulting as an operating business, but:

• She did not attend, preventing the Court from assessing credibility through oral evidence;
• Her account lacked detail on engagement terms, payment basis, and specific work done;
• The Court attached limited significance to the statement and again found no sensible explanation for not identifying/calling such witnesses earlier.

5) The “interests of justice” synthesis

The Court’s conclusion was not a mechanical tick-box exercise; it synthesised all factors:

• Where evidence is incredible (Mr Hussain), admitting it is neither necessary nor expedient.
• Where evidence is credible but immaterial (Mr Khan), it does not justify reopening safety.
• Where evidence cannot be tested and is thin (Ms David), it attracts limited weight.
• Where the defence shows no reasonable explanation and poor diligence, the Court is disinclined to facilitate a reconstructed defence case.

C. Impact

Although framed as an application of established principles, [2026] EWCA Crim 194 is likely to be cited for its emphatic, fact-specific articulation of how s.23 is applied where:

• Credibility issues are exposed through de bene esse oral evidence;
• Fresh evidence is advanced to rehabilitate an accused’s explanation in a fraud case but is unsupported by records;
• Defence failure is attributable not to genuine unavailability but to inadequate witness management and preparation.

Practical consequences for future cases include:

• Higher scrutiny of “business” narratives offered to explain suspicious financial flows, especially where documentation would ordinarily exist.
• Reinforced expectations of diligence from defence teams: identifying, preserving, and obtaining signed statements from key witnesses well before trial.
• Greater caution in relying on post-conviction reconstructions: the Court signalled that s.23 is not a corrective for avoidable strategic or administrative omissions.
• Procedural guidance on when the Court will hear oral evidence to test belief (following Sales [2000] 2 Cr.App.R 431) and when it will refuse adjournments for non-attending witnesses of limited relevance.

In professional-fraud contexts involving legal costs, the judgment also underscores the forensic significance of bank-account arrangements that appear inconsistent with ordinary banking compliance and transparency.