Harrod: The Court of Appeal Re-Defines “Fresh Evidence” and Tightens the Gate on Out-of-Time Criminal Appeals

Introduction

Harrod, R. v ([2025] EWCA Crim 819) is a significant decision of the Court of Appeal (Criminal Division) in which the Court:

• Refused an extension of almost four years (1,395 days) sought by the appellant, Anthony Harrod, to challenge his 2020 convictions for large-scale class A and B drug conspiracies and breach of a Serious Crime Prevention Order (“SCPO”).
• Clarified, and arguably tightened, the meaning of “fresh evidence” under s.23 Criminal Appeal Act 1968 (“CAA 1968”).
• Re-affirmed that evidence in the possession of the defence team at trial cannot later be characterised as “fresh” merely because it was unused, and that minor semantic distinctions (“Fox” v “Foxy”) or tenuous third-party attributions will not suffice to render a conviction unsafe.

The applicant was alleged to have orchestrated a sophisticated, multi-million-pound drug enterprise spanning 2018–2020, utilising EncroChat devices, coded nicknames, and a sham drainage company. Convicted and sentenced to concurrent terms, the applicant sought to introduce new attribution evidence—principally that others, not he, bore the handles “Foxy” or “Wicker”. He simultaneously sought relief from the rigid 28-day appeal deadline by citing (i) late discovery of the materials and (ii) a request from co-defendant Patrick Ince to postpone the application until completion of unrelated Proceeds of Crime Act proceedings.

Summary of the Judgment

The Court (Sir Keith Lindblom P; Simler LJ; and Sweeting J) unanimously:

1. Dismissed the request to adduce the “new” attribution evidence.
2. Refused leave to appeal the conviction.
3. Refused the requested extension of time.

Key holdings include:

• Material in the possession of the defence prior to or during trial is not “fresh” for s.23 CAA 1968 purposes, even if not deployed or pursued at trial.
• Slightly different nicknames (“Foxy” vs “Fox”) and EncroChat handles (“Wicker” vs “Alanwicker”) did not — on the facts — create a realistic possibility that the jury’s verdict would have differed.
• Where the prosecution case is otherwise “a formidable body of circumstantial evidence”, peripheral attribution disputes carry little weight.
• Strategic delay prompted by collateral considerations (e.g., concerns about prejudicing a third party’s POCA proceedings) rarely justifies a years-late appeal.

Analysis

Precedents Cited & Their Influence

Although the judgment is largely fact-driven, the Court implicitly relied upon, and is now read in tandem with, a line of authorities that govern fresh evidence and time-extension applications:

• R v Parkinson [2018] EWCA Crim 983 – confirms four-stage test under s.23(2) CAA 1968 (credibility, explanation of non-use, importance, and admissibility in the interests of justice).
• R v Pendleton [2001] UKHL 66 – establishes that the crucial question is the safety of the conviction and whether the Court has sufficient “doubt” in light of new material.
• R v Warren [1993] 1 Cr App R 171 – clarifies that evidence known but unused at trial is not “fresh”.
• R v Shields [2015] EWCA Crim 67 – emphasises the public interest in finality; substantial reasons are needed to extend time, especially where delay is tactical.

Harrod synthesises these authorities, applying them stringently, and thereby fortifies the principle that the defence cannot “withhold” evidence and later seek to resurrect it under the banner of freshness.

Legal Reasoning

1. Freshness Test (s.23 CAA 1968).
   • The Court examined whether the Buckle and Ellice statements could not with reasonable diligence have been obtained for use at trial. As the defence team had direct digital access to the statements before October 2020, the first limb of s.23(2) failed.
   • Even if fresh, the Court assessed whether the evidence was capable of reasonable belief by a jury and whether it might reasonably have affected the jury’s verdict. It answered both in the negative.
2. Relevance & Materiality.
   • “Foxy” ≠ “Fox”; “Wicker” ≠ “Alanwicker”. The Court stressed that attribution evidence must be specific and probative. Remote linguistic similarities or speculative parallels are insufficient.
3. Weight of the Existing Case.
   • Surveillance, seizures, encrypted phones, prior drug convictions, lifestyle evidence, and SCPO breaches produced an overwhelming circumstantial matrix.
   • Thus, the contested nickname evidence was peripheral, not pivotal, to guilt.
4. Delay & Interests of Justice.
   • 1,395 days is “extraordinary”.
   • Tactical delay (concern for Ince’s POCA proceedings) is not a compelling excuse where the appellant’s liberty is at stake.
   • Finality and efficient administration of justice favour strict adherence to the 28-day limit.

Impact of the Judgment

• Higher Threshold for “Fresh Evidence” Claims.
  Defence teams must now expect courts to interrogate when the material actually entered their possession. If available pre-trial, it will almost invariably be deemed “not fresh”.
• Strategic Delay Discouraged.
  The judgment sends a clear signal: collateral tactical reasons rarely justify missing the statutory deadline. Practitioners should file protective notices or risk irrevocable forfeiture.
• EncroChat Litigation.
  With many EncroChat cases in the pipeline, Harrod indicates that mere handle-name ambiguities will seldom undermine convictions built on broad circumstantial foundations.
• Reassurance on Large-Scale Conspiracy Convictions.
  Prosecutors can rely on the decision to defend convictions where attribution evidence is merely one strand among many.

Complex Concepts Simplified

• Fresh Evidence (s.23 CAA 1968): Evidence not adduced at trial that could not with reasonable diligence have been. Four factors govern admissibility: (1) whether the evidence appears credible; (2) why it was not used sooner; (3) its potential impact on the verdict; and (4) whether admission is in the interests of justice.
• Extension of Time: Appeals against conviction must be lodged within 28 days. The Court may extend, but only if convincing reasons exist and the conviction appears potentially unsafe.
• EncroChat Handles & Nicknames: Users of the encrypted platform adopted “handles” (unique identifiers) and “nicknames”. Proper attribution links a handle/nickname to a real person via corroborative data (cell-site, personal details, crossover messages, surveillance).
• Serious Crime Prevention Order (SCPO): A civil preventive order under the Serious Crime Act 2007 restricting an individual’s activities to hinder future crime. Breach is an offence.

Conclusion

Harrod is now a leading authority on the admissibility of “fresh” evidence and extensions of time in criminal appeals. Emphasising the paramountcy of finality, the Court imposed a strict reading of s.23 CAA 1968: if the evidence was in the defence’s hands, it is not fresh; if it is tangential, it will not endanger the conviction. The decision warns practitioners that tactical delay is perilous and that only cogent, genuinely unavailable evidence—bearing directly on guilt—can unlock the appellate door. In the broader landscape of EncroChat and organised crime litigation, Harrod will be cited whenever defendants seek to rely on belated attribution arguments or seek indulgence long after the 28-day deadline has expired.