Fresh Evidence on Appeal: Reasonable Diligence to Locate Devices and Contextual Assessment of Text Messages
1. Introduction
In R v MIK [2026] EWCA Crim 961, the Court of Appeal (Criminal Division)
considered an application to admit and rely on newly discovered text messages said to undermine a rape conviction.
The applicant had been convicted at the Crown Court at Newcastle of rape (Sexual Offences Act 2003, s.1)
and controlling and coercive behaviour (Serious Crime Act 2015, s.76). The appeal ultimately concerned only
count 4 (rape), a multiple-incident allegation involving anal penetration of the complainant (“C1”).
The key appellate issue was whether text messages found after trial on a mobile phone discovered at the applicant’s aunt’s address
should be admitted as fresh evidence under section 23 of the Criminal Appeal Act 1968, and—whether admitted or not—
whether the messages would affect the safety of the conviction.
2. Summary of the Judgment
- The Court accepted that, on their face, the messages appeared credible, but held they were not “fresh” in the relevant sense because they could have been obtained with reasonable diligence before trial.
- The Court held there was no reasonable explanation for the failure to adduce the material at trial: the applicant knew of the phone and of the messages, and should have taken steps to locate devices held at prior addresses.
- Even treating the messages as potentially admissible despite not being “fresh”, the Court held they would not reasonably have led to an acquittal and would not reasonably have affected the jury’s verdict; therefore there was no miscarriage of justice.
- The appeal was dismissed.
3. Analysis
3.1 The Statutory Framework: Section 23 Criminal Appeal Act 1968
The Court structured its approach around s.23, highlighting the statutory factors in s.23(2):
credibility, potential to afford a ground of appeal, admissibility at trial, and whether there is a reasonable explanation for not adducing it.
The judgment underscores that admission is discretionary and anchored in the interests of justice, but constrained by the integrity of the trial process.
3.2 Precedents Cited and Their Influence
R v Beresford (1972) 56 Cr App R 143
The Court relied on R v Beresford (1972) 56 Cr App R 143 for the proposition that a “reasonable explanation” for failing to adduce evidence
requires that the material could not with reasonable diligence have been obtained for trial, and that diligence includes the defendant playing a
“proper part” in preparing the defence. This informed the Court’s emphasis that disclosure is not purely a prosecution burden where the defence is aware of
potentially exculpatory material within its own sphere of knowledge or control (here, the existence of the device and the communications).
The Court drew heavily on R v Pendleton [2001] UKHL 66 for two linked principles:
- No holding evidence back: defendants must ordinarily advance available evidence at trial; it is impermissible to reserve it for appeal.
- Safety-focused appellate test: the appellate court’s task is not guilt assessment but whether the conviction is safe; in difficult cases it is “wise”
to ask whether the evidence might reasonably have affected the jury’s decision to convict.
These points framed both the refusal to treat the material as “fresh” and the Court’s subsequent “impact on verdict” analysis.
From R v Erskine and Williams [2009] EWCA Crim 1425, the Court adopted the strong warning that, save exceptionally, allowing on appeal
a defence or evidence that “could and should have been” placed before the jury risks subverting the trial process. The Court applied this by
requiring a reasonable and persuasive explanation for the omission, and by treating the absence of such an explanation as a powerful reason
against admission in the interests of justice.
The Court referenced R v Lundy [2013] UKPC 28 as a structured, sequential way to think about fresh evidence:
credibility; freshness (reasonable diligence); and then impact on safety. Importantly, Lundy recognises that even if evidence is not “fresh”,
it may still be admitted if excluding it risks a miscarriage of justice. The Court expressly applied this by moving beyond “freshness” to consider
whether the texts might reasonably have led to an acquittal.
3.3 Legal Reasoning
(a) Why the messages were not “fresh”
The Court’s central factual finding was that the applicant knew about the phone and the messages because he received and replied to them,
and that the phone had been in premises he occupied with C1 (his aunt’s address). The Court was unpersuaded that drug use, frequent phone changes,
or periods in custody adequately explained the failure to secure and examine devices at earlier stages—particularly given the applicant’s stated concern
to obtain messages helpful to his defence.
A key practical takeaway from the reasoning is that reasonable diligence includes taking basic steps to locate and preserve devices at addresses
previously occupied, via legal representatives or family members, where the defendant has reason to believe relevant communications exist.
(b) Disclosure concerns did not cure the diligence failure
The Court acknowledged there “may well have been problems” with the prosecution disclosure exercise, especially as C1’s phone number remained the same.
However, it held this did not assist the applicant: the onus is shared, and the applicant’s own lack of reasonable diligence remained decisive.
The judgment therefore signals that arguable disclosure shortcomings will not necessarily transform known/knowable defence material into admissible “fresh evidence”
if the defence failed to take reasonable steps within its own control.
(c) Contextual impact: why the messages would not have affected the verdict
The Court then conducted the “safety” analysis in any event, treating it as necessary to consider miscarriage-of-justice risk even if the evidence was not fresh.
The Court’s evaluation was highly contextual:
-
“Lies” added little: the jury already knew C1 had given contradictory accounts, including lying to police about the black eye incident.
The texts in which C1 referred to lies did not materially advance the credibility challenge beyond what the jury already had.
-
Infidelity context: the Court found the “lies” language arose within exchanges about alleged infidelity—an issue the jury had already heard about,
including evidence that C1 said she had been pressured to admit infidelity. This reduced the probative force of the texts on the rape-consent issue.
-
“Never refusing sex” was treated as sarcasm in an argument: in the Court’s reading, that line was a sarcastic response during a jealous argument
in which the applicant accused C1 of flirting. Read in full, it had “very little, if any, forensic weight” on consent to anal penetration or belief in consent.
The Court concluded the messages would not reasonably have led to an acquittal and would not reasonably have affected the jury’s view on consent or belief in consent.
3.4 Impact
The decision is likely to be relied upon in three recurring appellate scenarios:
-
Device-discovered-after-trial evidence: where phones are found later, the Court will scrutinise whether the defendant could reasonably have
ensured earlier recovery, particularly when the defendant knew of the communications.
-
“Context defeats punchline” credibility arguments: messages that appear damaging when excerpted may be neutralised when placed in full conversational
and evidential context; courts will examine whether they truly add anything to what the jury already had.
-
Disclosure vs defence diligence: even where disclosure appears imperfect, the defence must show reasonable diligence and a persuasive explanation
for omission; otherwise admission and safety arguments face a steep uphill path.
4. Complex Concepts Simplified
-
“Fresh evidence” (s.23 CAA 1968): evidence not used at trial which an appellant wants the Court of Appeal to consider. A key question is whether it
could have been obtained for trial with reasonable diligence.
-
“Reasonable diligence”: practical, sensible steps a defendant and legal team should take to identify, secure, and deploy relevant evidence before trial.
-
“Safety of the conviction”: the appellate standard; the Court asks whether the conviction is safe, not whether it thinks the defendant is guilty.
-
Multiple-incident count: a single count that alleges repeated incidents of the same type over a period, rather than a single dated event.
-
ABE interview / section 28 procedure: special measures used to obtain and present the complainant’s evidence, including pre-recorded interviews and
cross-examination.
-
Controlling or coercive behaviour (Serious Crime Act 2015, s.76): a pattern of behaviour in an intimate/family relationship that seriously affects the victim,
such as isolation, monitoring, threats, and intimidation.
5. Conclusion
R v MIK [2026] EWCA Crim 961 reinforces that post-trial discovery of digital communications will not readily satisfy the “fresh evidence”
gateway where the defendant knew of the device or messages and failed to take reasonable steps to secure them for trial. Even beyond admissibility, the decision
emphasises a rigorous, contextual assessment of whether such material truly alters the credibility landscape or could reasonably have affected the jury’s verdict.
The judgment therefore strengthens the discipline of trial finality while preserving the miscarriage-of-justice safeguard through an explicit “impact on safety” review.