Jeong, R. v — Fresh Evidence Must Be Truly “Fresh”, Reliable, and Potentially Verdict-Changing: Pressure-Induced Retractions and Opportunity Arguments Fail Under s.23

1. Introduction

This renewed application in Jeong, R. v concerned whether the applicant—convicted in 2015 of multiple sexual and physical offences against his two step-children—could obtain (i) a very substantial extension of time (3,493 days) to seek leave to appeal against conviction, and (ii) permission under section 23 of the Criminal Appeal Act 1968 to adduce “fresh evidence” said to undermine the credibility of the complainants and their mother.

The trial at Kingston Crown Court involved 19 counts. The applicant was convicted on counts relating to both complainants (C1 and C2), acquitted on some later counts relating to C1, and the jury was unable to reach a verdict on one count (count 2). The prosecution case depended primarily on the accounts of C1 and C2, with supporting evidence from their mother (M). The defence alleged fabrication motivated by divorce and financial disputes.

The Court of Appeal (Criminal Division), per Lord Justice Holgate, heard the renewed application. The court anonymised the complainants and their mother to reduce “jigsaw identification”, noting the continuing force of the Sexual Offences (Amendment) Act 1992.

2. Summary of the Judgment

The Court refused the renewed application for an extension of time and, in substance, rejected the attempt to rely on the proffered “fresh evidence”. The court held that:

  • The application rested entirely on “fresh evidence” grounds; there was no challenge to the summing-up, trial fairness, or counsel’s conduct.
  • The immigration material was not truly “fresh” (and lacked a reasonable explanation for non-deployment at trial), and in any event did not undermine “specimen” counts requiring proof of at least one incident within each charged period.
  • The principal “fresh evidence”—a recorded call and a handwritten note said to be from M—was unreliable, pressure-induced, in parts inadmissible, and did not materially undermine the safety of the convictions.
  • Even if the material had been before the jury, it would not “might reasonably have affected” the jury’s decision to convict on the counts proved.

Accordingly, the court held that it was not arguable that any conviction was unsafe; without that, the exceptional extension of time could not be justified.

3. Analysis

3.1 Precedents Cited

The court located its approach within established authority on fresh evidence and the “unsafe conviction” test:

  • R v Pendleton [2001] UKHL 66, [2002] 1 WLR 72: The court referenced the “well-known passage” of Lord Bingham (notably at paragraph 19) and applied the central idea that the appellate court must assess whether the new material might reasonably have affected the jury’s decision. The judgment explicitly returned to that passage when concluding that, even had the material been available at trial, it would not have affected the verdicts.
  • Stafford and Luvaglio v DPP [1974] A.C. 878: Cited for the broader principles governing the reception of fresh evidence and appellate intervention. Its influence is visible in the court’s insistence on evaluating not merely the existence of new material but its credibility, admissibility, and true probative weight against the trial record.
  • R v Ahmed [2002] EWCA Crim 2781 and R v Patel and others [2010] EWCA Crim 1858: These authorities were used to anchor the structured, factor-based assessment under section 23 and the court’s evaluative role in determining whether the new evidence creates a realistic route to an “unsafe” finding. The judgment’s step-by-step scrutiny of reliability, “freshness”, and potential impact reflects those authorities’ emphasis on disciplined appellate gatekeeping.

3.2 Legal Reasoning

(a) The statutory filter: section 23(2) Criminal Appeal Act 1968

The court applied the four mandatory considerations in section 23(2):

  • (a) Capability of belief — whether the evidence appears capable of belief.
  • (b) Potential to afford a ground of appeal — whether it may support allowing the appeal.
  • (c) Admissibility — whether it would have been admissible at trial on an issue in the appeal.
  • (d) Reasonable explanation for absence — why it was not adduced at trial.

The judgment’s structure shows that failure under (d) and (a)/(c) was often decisive, and that (b)—the safety of convictions—was considered against the trial’s “specimen count” directions and the overall evidential picture.

(b) “Opportunity” and immigration records: not genuinely fresh, and not verdict-changing

The applicant relied on immigration records (from the South Korean Embassy) to suggest he was outside the UK for parts of the indictment periods. The court rejected this as a basis for fresh-evidence relief for two core reasons:

  • No reasonable explanation (s.23(2)(d)): The applicant’s passport had been retained by police at trial; nonetheless, the court held there was no adequate explanation why the relevant dates could not have been extracted by agreement or obtained from the embassy pre-trial. This deficiency was sufficient to defeat the argument under the statutory framework.
  • Specimen counts and limited probative value: The jury had been directed (without criticism on appeal) that, for specimen counts, it was enough to be sure the conduct occurred at least once within the charged period. Periods of absence (20–21 weeks across 2004–2006) did not logically negate the possibility of at least one incident in the relevant windows. The court also noted the applicant had already raised points of this nature at trial, undermining any claim to genuine novelty.

(c) Alleged “retraction” by M: reliability, admissibility, and context

The application ultimately depended on two items said to emanate from M: (i) a recorded telephone call with L, and (ii) a handwritten note signed by M (the judgment contains internal date inconsistencies, referring in places to “2025” where the narrative otherwise indicates “2015”; the court nonetheless addressed the substance).

(i) The telephone recording: leading questions and pressure

The court’s key evaluative finding was that the recorded conversation was not a “proper process for obtaining reliable information”:

  • L exerted “considerable” pressure and conducted exchanges “almost as if it were a cross-examination”.
  • There were “highly leading questions” and sequences of multiple propositions before M could answer; responses could not fairly be treated as agreement to all propositions.
  • Some propositions put to M were unsupported and/or inconsistent with the applicant’s trial evidence.
  • The transcript did not bear out some of L’s later claims about what M had admitted.

This analysis went directly to s.23(2)(a) (capable of belief) and s.23(2)(c) (admissibility/utility), and also undermined any submission that the material could realistically destabilise verdicts that were reached after careful judicial directions warning about collusion, manipulation, and inconsistencies.

(ii) The handwritten note: narrower than alleged, partly inadmissible opinion, and immaterial

The court treated the signed note as the stronger item (as applicant’s counsel properly accepted), yet still found it could not support an unsafe-conviction argument:

  • It did not match the alleged “admissions”: The note did not state that the complainants “lied”, did not retract M’s trial evidence, and did not cover 2005/2006 in the broader way suggested in the call.
  • Paragraph (1): opinion evidence and limited relevance: M’s claim that C1’s memory of sexual assault in Korea was “wrong” because she washed him was an inference/opinion—“inadmissible”—and, as analysed, it did not materially undermine the convictions (and was treated at trial as relevant to anal allegations; notably, the jury could not reach a verdict on count 2). The court further regarded the “injury” inference as something that could readily have been explored at trial, diminishing “freshness”.
  • Paragraph (2): no evidential foundation: The premise that C1 alleged abuse “until the day before” leaving for England was not supported; applicant’s counsel accepted there was no such evidence. Without a factual anchor, the paragraph could not sensibly found a safety challenge.
  • Separation period (two months vs five months): not material: Even if the separation was longer than stated at trial, the court held it could not matter to the specimen count periods (e.g., count 1 spanning June 1999–February 2004) and, critically, it was a matter the applicant knew and could have raised at trial.
  • Paragraph (3): language school and “opportunity”: Attendance at language school did not logically eliminate opportunity for abuse, particularly given the evidence of limited school hours and the applicant’s minicab work. Again, these were trial-known matters and not properly “fresh”.

(d) Safety: the “might reasonably have affected the jury” test

Having found the material unreliable/not truly fresh and limited in scope, the court nonetheless addressed the ultimate question: even if admitted, would it have affected the jury’s decision? The court’s “firm conclusion” was no. The convictions were grounded principally in the accounts of C1 and C2, which the jury assessed under careful directions (including cross-admissibility, collusion/fabrication warnings, and a written schedule of inconsistencies). Nothing in the proffered material displaced the jury’s core credibility findings on the counts where they convicted.

3.3 Impact

The decision reinforces several practical propositions likely to shape future fresh-evidence applications:

  • “Fresh” means not reasonably available at trial: If a point could have been raised using known facts (separation periods, school hours) or obtainable records (travel dates), failure to do so is likely fatal under s.23(2)(d).
  • Reliability is policed robustly: The court will scrutinise the method by which “new” accounts are obtained. Material generated through pressure, highly leading questioning, or quasi-cross-examination by an interested supporter may be treated as unreliable and given little or no weight.
  • Specimen counts blunt “continuous abuse” rebuttals: Where counts are framed as specimen counts and the jury is directed that one incident suffices, partial “opportunity” rebuttals (e.g., travel absences) often do not engage the decisive issue unless they negate the possibility of any incident within the period.
  • Appellate focus remains safety, not re-litigation: The court’s approach reiterates that fresh evidence is not a vehicle to re-run credibility disputes unless the new material is both credible and capable of altering the verdict.

4. Complex Concepts Simplified

  • “Unsafe” conviction: The Court of Appeal does not ask whether it would have convicted; it asks whether, in light of the new material, the conviction cannot safely stand—often framed as whether the evidence might reasonably have affected the jury’s decision.
  • “Fresh evidence” (s.23 Criminal Appeal Act 1968): Evidence offered after trial that the appellant wants the Court of Appeal to consider. The court applies statutory filters: credibility, admissibility, potential to justify allowing the appeal, and a reasonable explanation for not using it at trial.
  • Specimen counts: Charges drafted to represent a pattern of conduct over a period. The prosecution need not prove every incident within the period; the jury must be sure at least one qualifying incident occurred during that timeframe.
  • Hearsay and inadmissible opinion: Statements repeating what a third party allegedly said (without that person testifying) can be inadmissible hearsay; similarly, a witness’s “opinion” on whether another witness’s memory is “wrong” may be inadmissible where it is for the jury to decide.
  • Jigsaw identification: Even if names are withheld, combining details can identify complainants in sexual cases; hence the court’s careful anonymisation consistent with the Sexual Offences (Amendment) Act 1992.

5. Conclusion

Jeong, R. v exemplifies a disciplined, sceptical approach to fresh-evidence appeals: the Court will not reopen jury verdicts absent material that is (i) genuinely new or reasonably unavailable at trial, (ii) reliable and admissible, and (iii) capable of affecting the jury’s conclusions on the counts convicted. The judgment underscores that “retraction-style” material obtained by an interested intermediary through pressure and leading propositions is unlikely to satisfy the statutory criteria, and that “opportunity” arguments based on travel or routine schedules rarely undermine specimen counts unless they truly eliminate the possibility of any proved incident within the charged periods.