Wishart v R ([2025] EWCA Crim 704): Fresh Evidence and Guilty-Plea Appeals Under Section 23 CAA 1968
Introduction
In Wishart v R, the England and Wales Court of Appeal (Criminal Division) dismissed an application by Kevin Wishart to extend time—by more than 16 years—to seek leave to appeal his 2005 convictions for theft and firearms offences. Wishart relied on fresh evidence from a retired detective (Mr Daniel Williams) and a journalist (Mr Michael Gillard), alleging police non-disclosure, entrapment and duress. The single judge referred the matter to the full court under section 23 of the Criminal Appeal Act 1968. The core issues were:
- Whether the proposed fresh evidence was admissible, credible and capable of affording grounds to overturn the convictions;
- Whether the defence of entrapment or duress would have succeeded at trial if the evidence had been before the court;
- Whether a long extension of time should be granted in light of delay and Wishart’s prior applications to the Criminal Cases Review Commission (CCRC).
Summary of the Judgment
The Court of Appeal (Holroyde LJ, Wall J and McGowan J) refused to receive the fresh evidence under s 23 and consequently denied both the extension of time and leave to appeal. Key findings:
- Mr Williams, a junior disclosure officer in 2004–05, had given evidence based largely on hearsay, speculation and office gossip, unsupported by independent records.
- Much of his 2018 and 2024 statements was inadmissible opinion or contradicted by senior officers (DI Smith and DS Summers), whom the court found credible.
- Even if his evidence were accepted, it could not have changed the judge’s rulings: the judge had stayed the robbery count for non-disclosure but had correctly proceeded on the alternative theft count; and the defence of duress was properly withdrawn because Wishart had opportunities to withdraw from the offence.
- No arguable ground of appeal remained, so there was no point in granting an extension of time.
Analysis
Precedents Cited
While Wishart v R did not list detailed case names, it reaffirmed well-established principles:
- Criminal Appeal Act 1968, section 23: the statutory gateway for fresh evidence—requiring admissibility, credibility, potential to afford a ground of appeal, and reasonable explanation for non-adduction at trial.
- Authorities on appeals after a guilty plea: convictions can be overturned if unsafe for reasons such as real miscarriages of justice, but the hurdle is high.
- Contempt of Court Act 1981, section 11: restrictions on identifying certain witnesses (“C”).
Legal Reasoning
The court’s reasoning can be understood in three stages:
- Admissibility and Credibility under s 23(2)
Section 23(2) requires the appellate court to consider:- Whether the evidence is capable of belief;
- Whether it may afford a ground for allowing the appeal;
- Whether it would have been admissible at trial;
- Whether there is a reasonable explanation for its late emergence.
- Merits of the Proposed Grounds
- Entrapment (Ground 1): The trial judge had found no evidence of police-induced entrapment. Mr Williams’s assertions that every officer knew about the target in advance, or that officers lied under oath, rested on his unsupported belief and were insufficient to demonstrate a real risk of injustice.
- Duress (Ground 2): The judge withdrew the duress defence because Wishart had clear opportunities to walk away. Fresh evidence relating to “C” could not negate the core factual finding that the defendant had free choice to abandon the enterprise.
- Extension of Time
Although Wishart had not appealed promptly, he argued that fresh evidence only emerged in 2021. The court held that, even if there were a reasonable explanation for delay, there was no point in granting an extension because there was no arguable appeal.
Impact on Future Cases
This decision emphasizes several practical points for criminal practitioners:
- Fresh evidence applications under s 23 face rigorous scrutiny—unsupported whistle-blower statements and uncorroborated hearsay will generally fail.
- Appeals based on a guilty plea require more than late revelations; they demand evidence that would have materially altered the original outcome.
- Long delays undermine applications for both fresh evidence and extensions of time unless the new material is compelling and directly affects core trial rulings.
Complex Concepts Simplified
- Section 23 Criminal Appeal Act 1968
- A statutory provision allowing a convicted person to introduce “fresh evidence” at appeal if it is credible, admissible, likely to succeed, and explains its late production.
- Entrapment
- A defence alleging that state agents induced the defendant to commit an offence he would not otherwise have committed. It can lead to staying proceedings as an abuse of process.
- Duress
- A defence claiming the defendant acted under threats of death or serious injury. It fails if the defendant had reasonable opportunities to escape or inform authorities.
- Extension of Time
- An application to the appellate court when a statutory deadline for appealing (28 days under the Criminal Appeal Rules) has expired. The court will only grant an extension if there is good reason and an arguable appeal.
Conclusion
Wishart v R clarifies the iron-clad obstacles to reopening long-closed appeals, especially where convictions rest on guilty pleas. It reaffirms that:
- Section 23 fresh evidence must be direct, credible and capable of altering the trial outcome;
- Late allegations of disclosure failures or misconduct, absent contemporaneous complaint or documentary proof, are unlikely to succeed;
- Even compelling misconduct must intersect the decisive trial rulings (e.g., abuse of process, withdrawal of defences) to afford a basis for appeal;
- Extensions of time serve no purpose if no arguable appeal exists.
By applying these principles strictly, the Court of Appeal preserves the finality of convictions and ensures that only truly arguable and material fresh evidence can disturb a guilty-plea conviction years later.
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