Strict Approach to Late Criminal Appeals: Tactical Defence Decisions, “Fresh Evidence” and the Extension-of-Time Test

1. Introduction

This was a renewed non-counsel application by the applicant (“OGM”) seeking (i) an extension of time (164 days late) to apply for leave to appeal against conviction, and (ii) leave to appeal in any event. The convictions arose from historic allegations of sexual abuse against the applicant’s daughter, occurring when she was aged 10–11, with complaint made many years later in adulthood.

The application raised three broad issues: (1) whether trial counsel’s decision not to call certain defence witnesses rendered the convictions unsafe; (2) whether the applicant could adduce “fresh evidence” under section 23 of the Criminal Appeal Act 1968 to support an alternative-perpetrator theory; and (3) whether challenges to the jury’s factual assessments could found an appeal. The court also addressed reporting restrictions under the Sexual Offences (Amendment) Act 1992.

2. Summary of the Judgment

3. Analysis

3.1 Precedents cited

The judgment did not cite prior case authorities by name. Instead, it applied established appellate principles in three areas: (i) extensions of time, (ii) section 23 “fresh evidence”, and (iii) the limited scope for appeals that merely dispute the jury’s assessment of fact. The decision is therefore best understood as a clear application—and practical illustration—of settled doctrine rather than a development driven by specific precedents.

3.2 Legal reasoning

(A) Ground 1: Decisions not to call defence witnesses

The court treated the complaint as an “incompetence” type argument but found the materials (including counsel’s notes and a signed written endorsement by the applicant) demonstrated a considered tactical choice. The proposed witnesses included the applicant’s wife and other daughters. The court identified concrete risks:

• The applicant’s wife, if called, would likely have been asked why she called the police when the allegations emerged, potentially strengthening the prosecution narrative.
• One daughter’s evidence risked introducing what amounted to an earlier complaint consistent with the allegations, and would have invited deeper exploration of text messages referring (obliquely and expressly) to abuse by the applicant—matters capable of corroborating the complainant’s account.
• The witnesses themselves were reluctant and feared harming the defence; the court accepted counsel’s assessment that “cherry picking” some witnesses but not others would provoke adverse comment and yield limited benefit on the central issues.

On that basis, the court held there was no arguable basis to say counsel acted incompetently, improperly, or without informed agreement. The key principle applied is that appellate courts are slow to second-guess reasoned forensic decisions made at trial—particularly where the defendant’s informed assent is evidenced.

(B) Ground 2: “Fresh evidence” and alternative-perpetrator theories (Criminal Appeal Act 1968, s.23)

The applicant sought to introduce evidence from three individuals said to support an allegation that another person (a deceased friend) was the perpetrator. The court rejected this for multiple, cumulative reasons:

• Not “new” in substance: the alternative-suspect theory was known before trial and had been investigated; the complainant had expressly denied misconduct by that person.
• Poor quality/insufficient support: only one witness offered even vague support; the others offered nothing capable of advancing the defence, and no proper statements/documents were provided.
• Implausibility in context: both incidents were alleged to have occurred within family homes, making an outsider-perpetrator hypothesis inherently unlikely on the facts as advanced.
• No coherent misidentification mechanism: the applicant did not articulate how the complainant could plausibly have mistaken the perpetrator, especially given her identification of the applicant to others.

The court concluded the proposed material fell “far short” of the section 23 criteria and could not reasonably bear on the safety of the convictions. The reasoning underscores that section 23 is not a vehicle for speculative post-trial theories; the evidence must be sufficiently credible, supported, and capable of affecting safety.

(C) Ground 3: Challenges to jury fact-finding

The applicant’s remaining points attacked factual matters (dates, counselling statements, messages). The court held these were all explored at trial and addressed in the summing-up. Without some identifiable irregularity (e.g., legal misdirection, procedural unfairness) or perversity (an irrational verdict), appellate intervention is not justified. The court found neither alleged nor apparent.

(D) Extension of time

The delay was substantial: conviction (February 2024), sentence (May 2024), notice of appeal not sent until December 2024. The explanation—insufficient assistance from lawyers—was contradicted by contemporaneous documents showing oral advice at conviction and written advice eight days after sentence.

Applying the “well established” test, the court required (i) a good reason for delay and (ii) a risk of significant injustice if time were refused. The applicant satisfied neither: no adequate justification for delay, and no injustice because the proposed grounds were unarguable in any event.

3.3 Impact

Although the decision is a refusal application rather than a full merits appeal, it is a practical and instructive statement of approach that is likely to be cited in submissions:

• Extensions of time: the court will scrutinise delay explanations against documentary realities, and will refuse extensions where grounds lack arguability—reinforcing the “no injustice” limb.
• Trial strategy complaints: where counsel’s forensic choices are documented and risks are concrete (especially where the defendant endorsed the decision), “failure to call witnesses” arguments are unlikely to render convictions unsafe.
• Fresh evidence discipline: alternative-perpetrator material must be genuinely new (in the relevant sense), properly supported, and capable of affecting safety; vague “hearsay-ish” accounts without statements are unlikely to pass the section 23 threshold.
• Jury fact-finding finality: appellate courts will not retry the case by re-arguing credibility, dates, or inferences absent legal error or irrationality.

4. Complex Concepts Simplified

• Reporting restrictions (Sexual Offences (Amendment) Act 1992): lifelong anonymity for complainants in sexual cases—publish nothing likely to identify the complainant unless anonymity is lawfully lifted/waived.
• “Unsafe” conviction: the appellate question is not whether judges might have reached a different verdict, but whether something undermines confidence in the safety/reliability of the conviction.
• Section 23 “fresh evidence”: a mechanism to admit new material on appeal, but only where it meets strict criteria (including credibility and potential significance). It is not a second chance to run an inadequately supported theory.
• Tactical/forensic decisions: choices about which witnesses to call and how to present the defence. Appellate courts generally defer to competent professional judgment, especially where risks were evaluated.
• Extension of time: permission to file an appeal late. Typically requires (i) a good reason for the delay, and (ii) that refusing would cause significant injustice.

5. Conclusion

In OGM, R. v [2026] EWCA Crim 74, the Court of Appeal (Criminal Division) refused both an extension of time and leave to appeal. The decision reinforces three practical appellate lessons: documented and rational trial tactics will not readily ground “unsafe conviction” arguments; section 23 fresh evidence applications must be genuinely new, supported, and significant; and late appeals will not be entertained absent a convincing delay explanation and a real risk of injustice.