Strict Application of Fresh Evidence Criteria and Time-Extension Discretion in Criminal Appeals

Introduction

R v Grace [2025] EWCA Crim 580 is a landmark Court of Appeal decision dealing with two linked procedural questions in criminal appeals: (1) when and how the court will grant an extension of time where a convicted defendant applies decades late, and (2) the circumstances in which fresh evidence may be admitted under section 23 of the Criminal Appeal Act 1968.

The appellant, Daniel Paul Grace, pleaded guilty in July 2010 to wounding with intent to cause grievous bodily harm and false imprisonment. In January 2011 he was given an indeterminate sentence for public protection with a minimum term of three years concurrent on each count. Thirteen years on, unrepresented, he sought renewed leave to appeal his convictions—arguing his pleas were equivocal and that a new psychiatric diagnosis should have supported a diminished-responsibility defence.

Summary of the Judgment

The Court (Holgate LJ, Cheema-Grubb J, and Linden J) unanimously refused both limbs of Grace’s application. On the time-extension request, it held that the 13-year delay far exceeded the 28-day limit in section 18 of the Criminal Appeal Act 1968 and Criminal Procedure Rule 39.2, and that no good explanation or fresh ground had emerged to justify an extension. On the fresh-evidence application under section 23, the court applied the traditional tripartite test—capable of belief, likely to affect the safety of conviction, and a reasonable explanation for its non-production at trial—and found the new psychiatric notes and psychologist’s letter lacked any bearing on Grace’s mental state in June 2010 or the voluntariness of his guilty pleas. Accordingly, leave to appeal was refused.

Analysis

Precedents and Statutory Framework Cited

• Criminal Appeal Act 1968, section 18 – requires applications for leave to appeal against conviction to be made within 28 days of conviction unless the court grants an extension of time; named as the primary statutory limit.
• Criminal Appeal Act 1968, section 23 – confers power to receive fresh evidence if it is necessary or expedient in the interests of justice; the court must consider (a) credibility, (b) potential to afford a ground of appeal, (c) admissibility at trial, and (d) explanation for non-production.
• Criminal Procedure Rules 2015, Rule 39.2 – parallels section 18, setting procedural requirements for an extension of time.
• Single Judge’s Refusal (May 2020) – the court noted a prior refusal by a single judge to extend time in respect of sentence, indicating the first approach to this application had already failed.

Legal Reasoning

The court’s reasoning falls into two main strands:

1. Extension of Time
   • Delay of over 13 years is “very significantly” out of time relative to the 28-day limit.
   • No fresh arguable ground of appeal had arisen in the decades since conviction warranting an extension.
   • Grace’s self-made grounds—equivocal pleas under duress, and hindsight psychiatric diagnosis—were either undermined by contemporaneous records or irrelevant to conviction.
2. Admission of Fresh Evidence
   • The 2023 psychiatric notes diagnosing “complex trauma and PTSD” post-dated 2010 and did not speak to Grace’s mental state at the time of offending or plea.
   • No evidence that the new material would have changed either the voluntariness of the plea or the safety of the conviction.
   • There was no satisfactory explanation why a mental health defence could not have been explored (or why the evidence was not adduced) before or during the original proceedings.

Impact

This Judgment reinforces strict adherence to the statutory timetable for lodging appeals and underscores the high threshold for admitting fresh evidence after long delays. Future appellants will find it more difficult to rely on late psychiatric diagnoses or to resurrect allegations of duress in plea negotiations without contemporaneous support. Courts will look for clear causative links between new evidence and the safety of the conviction, and they will continue to treat plea-based appeals with particular caution where the original record—sentencing remarks, pre-sentence reports, and counsel’s instructions—demonstrates unequivocal admissions.

Complex Concepts Simplified

• Indeterminate Sentence for Public Protection (IPP): A sentence with no fixed end date; release is only possible when the Parole Board deems the prisoner no longer a threat.
• Equivocal Guilty Plea: A plea that is not a clear admission of guilt—potentially made under pressure or misunderstanding, which could render it unsafe.
• Diminished Responsibility: A partial defence to murder based on an abnormality of mental functioning; irrelevant here as it does not apply to GBH or false imprisonment offences.
• Fresh Evidence Test (s23 CAA 1968): Courts ask whether the evidence (1) is credible, (2) might have led to an appeal being allowed, (3) would have been admissible at trial, and (4) was not presented earlier for a good reason.

Conclusion

R v Grace [2025] EWCA Crim 580 sets a clear benchmark for late and fresh-evidence appeals. It confirms that (a) the 28-day limit for lodging convictions appeals is strictly enforced, and (b) fresh psychiatric evidence, however compelling in isolation, must directly undermine the safety of conviction or voluntariness of plea to be admitted. The decision thus strengthens procedural certainty in the appellate process and limits the re-litigation of concluded cases based on post-conviction diagnoses or speculative claims of duress.