McGrath v R: Court of Appeal Affirms the Strict Tests for Extensions of Time, Varying Grounds of Appeal, and Admission of Fresh Evidence

1. Introduction

In McGrath, R. v ([2025] EWCA Crim 1103) the Criminal Division of the Court of Appeal was confronted with an applicant who, for six years, repeatedly sought to re-shape his grounds of appeal, introduce new evidence, and secure further adjournments. The judgment provides a meticulous re-statement—and practical enforcement—of the principles governing: (a) extensions of time to appeal; (b) permission to vary grounds after the single-judge filter; and (c) the admission of “fresh evidence” under s.23 of the Criminal Appeal Act 1968. Although no novel doctrine is announced, the case crystallises existing authorities into a clear operational blueprint, effectively raising the bar for would-be appellants who attempt to manipulate the appellate process through delay, serial applications, or tactical non-compliance.

2. Summary of the Judgment

• The applicant, Anthony McGrath, had been convicted in 2019 of fraud and perverting the course of justice and sentenced to an eight-year term.
• After the single judge refused leave in February 2021, the applicant launched a protracted series of renewed applications, switching counsel multiple times, filing successive “fresh” grounds (the latest being January 2025) and seeking large tranches of disclosure.
• The Court of Appeal (Stuart-Smith LJ, Sir Nigel Davis, Sir Peter Openshaw) refused: (i) an extension of time of c. six years; (ii) permission to vary the notice of appeal; and (iii) admission of the proposed witness statements and documents as fresh evidence.
• The Court held that none of the nine replacement grounds undermined the safety of the convictions; many merely sought to re-argue issues already litigated at trial.
• Costs (limited to prosecution counsel’s disbursements) were sought but ultimately declined.

3. Analysis

3.1 Precedents Cited

• R v Hughes [2009] EWCA Crim 841 – an extension is granted “only where there is good reason … and where the defendant would otherwise suffer significant injustice”.
• R v Thorsby [2015] EWCA Crim 1 – extensions turn on “the interests of justice”, embracing both the public interest in finality and individual liberty.
• R v N and LE (Vinh Cong) [2013] QB 379 – defendants have only one opportunity to give instructions; “fresh” factual instructions on appeal are permitted only exceptionally.
• R v Wilson [2016] EWCA Crim 65 – delay must be explained; merits alone are insufficient.
• R v James [2018] EWCA Crim 285 – authoritative framework for varying grounds post single-judge decision (para 38 criteria).
• Other authorities: AHC [2022] EWCA Crim 925 (cross-admissibility directions); s.23 Criminal Appeal Act 1968 criteria for fresh evidence.

3.2 Legal Reasoning

The Court’s reasoning proceeded in three inter-locking layers:

1. Extension of Time – Applying Hughes and Thorsby, the Court found no “good reason” for the six-year delay. Much of the blame lay with the applicant’s own strategic non-compliance and serial re-drafting of grounds. Even assuming arguable merit existed (it did not), the public interest in finality outweighed any residual injustice.
2. Variation of Grounds – Under James, the applicant faced a “high hurdle”. The factors in para 38 were fatal: (a) extreme delay; (b) no satisfactory explanation; (c) facts were known or discoverable at trial; (d) inefficiency; and (e) interests of justice. Permission to vary was therefore refused.
3. Fresh Evidence – The Court rigorously applied the statutory four-part test (s.23). The proposed evidence on fireplaces, Balrath Capital payments, and witness credibility was: (i) largely hearsay or speculative; (ii) available or discoverable at trial; and (iii) incapable of affecting safety given the “powerful” evidence already before the jury. Hence inadmissible.

3.3 Impact

• Operational Guidance: The judgment consolidates five leading authorities into a single, user-friendly decision, providing Crown Courts, defence practitioners, and the Criminal Appeal Office with a ready-made checklist for late appeals.
• Litigation Culture: The Court sounds a clear warning against “campaign-style” appellate conduct—serial filings, burdensome dossiers, and tactical non-attendance will not be indulged.
• Resource Allocation: Although the Crown’s request for costs was refused, the Court’s sympathy signals that, in future, wasted prosecutorial resources may trigger adverse costs orders where abuse is egregious.
• Cross-Admissibility Directions: The Court re-affirms that where the prosecution does not rely on cross-admissibility, a conventional “separate-counts” direction is sufficient. This may limit defence arguments predicated on automatic entitlement to such directions.

4. Complex Concepts Simplified

• Extension of Time (EOT): An appellant normally has 28 days from conviction or sentence to file a notice. Filing late requires EOT, granted only where (i) there is a persuasive reason for delay and (ii) the underlying grounds are at least arguable.
• Single-Judge Filter: Most criminal appeals are initially vetted by one judge. Refusal is not the end—but to renew a rejected ground, or to add new grounds, the applicant must meet stricter criteria in full Court.
• Varying Grounds of Appeal: After the single-judge phase, new grounds are “fresh” and need the Court’s permission. The James factors act like traffic lights: substantial delay or knowledge of facts at trial usually turn the light red.
• Fresh Evidence Test (s.23, 1968 Act): The Court asks: (a) believable? (b) capable of affecting the verdict? (c) admissible at trial? (d) reasonable explanation for not calling it? Failure on any limb is usually fatal.
• Cross-Admissibility: Evidence on one count can sometimes shed light on another (e.g., similar fact evidence). Only where the Crown relies on such linkage must the judge give a focussed direction explaining how jurors may use the overlap.

5. Conclusion

McGrath v R does not create new law but it powerfully distils and applies existing doctrine. Three practical messages resound:

1. Appellants must act promptly and candidly—delay, tactical ground-shifting, and non-compliance will almost certainly doom an application.
2. Permission to vary grounds or to rely on fresh evidence demands disciplined adherence to the James and s.23 tests; mere volume of paperwork or accusations of broad conspiracy do not suffice.
3. Trial strategy decisions—such as whether to call a witness—will not be relitigated absent exceptional circumstances; the Court is keen to guard against “second bites” under the guise of unfair representation.

In the broader legal landscape, the decision fortifies the Court of Appeal’s gate-keeping function, ensuring that finality of criminal litigation is balanced with, but not subverted by, the pursuit of individual justice.