Rogers v REGINA, England and Wales Court of Appeal (Criminal Division), Judgment, Law, casemine.com

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Advocates

Pamela Rose (who did not appear in the Crown Court) for the appellant Georgina Rogers
Mr Timothy Cray and Mr L Ingham for the Respondent to the appeal in Georgina Rogers and Beaman

Judges

LORD CHIEF

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Rogers v. REGINA

Smart Summary

Factual and Procedural Background

This opinion addresses three appeals heard together concerning the application of section 23 of the Criminal Appeal Act 1968 (the 1968 Act) in the context of fresh evidence or other information sought to be adduced on appeal against sentence. The appeals involve distinct factual backgrounds:

Appeal 1: The Appellant pleaded guilty to offences under the Dangerous Dogs Act 1991 relating to two Staffordshire bull terriers which caused injury while dangerously out of control. The sentencing judge ordered a community sentence and made a destruction order for one dog and a contingent destruction order for the other. The Appellant sought to adduce fresh expert evidence challenging the destruction order.
Appeal 2: The corporate Appellant pleaded guilty to offences involving the operation of a regulated waste facility without a permit under the Environmental Permitting (England and Wales) Regulations 2010. The Crown Court made a Remediation Order requiring the removal of illegal waste from the site. The Appellant sought leave to appeal the Remediation Order, an extension of time to comply, and to adduce fresh expert evidence regarding remediation feasibility.
Appeal 3: The Appellant was sentenced to five years’ imprisonment for possession of a disguised firearm contrary to the Firearms Act 1968. The Appellant appealed out of time, seeking a reduction in sentence on grounds including the absence of a Newton hearing to resolve disputed facts relevant to exceptional circumstances for sentencing.

Legal Issues Presented

Under what circumstances does section 23 of the Criminal Appeal Act 1968 permit the receipt of fresh evidence or other information on an appeal against sentence?
What are the exceptions to the requirement to comply with section 23 when adducing updated information?
Whether fresh expert evidence challenging a destruction order under the Dangerous Dogs Act should be admitted and how the court should evaluate conflicting expert opinions.
Whether fresh expert evidence relating to remediation proposals for an environmental offence satisfies the criteria for admission under section 23.
Whether a Newton hearing or analogous procedure is appropriate on appeal where disputed facts are relevant to exceptional circumstances in sentencing.
Whether the sentencing judge erred in finding no exceptional circumstances justifying a departure from a mandatory minimum sentence for possession of a disguised firearm.

Arguments of the Parties

Appellant (Dangerous Dogs Act Appeal)

Sought leave to adduce fresh expert evidence from a second veterinary behaviourist under section 23, challenging the destruction order made against one of the dogs.
Argued that the second expert's evidence, supported by a joint report with the first expert, demonstrated that the dog did not pose a danger to public safety and that a contingent destruction order was appropriate.

Prosecution (Dangerous Dogs Act Appeal)

Submitted that the evidence of the second expert should be given little weight due to criticisms of her qualifications and approach.
Relied on the judge’s findings that the Appellant lacked the ability to control the dog, which undermined the second expert’s opinion and supported the destruction order.

Appellant (Environmental Appeal)

Applied to adduce fresh expert evidence relating to a remediation proposal involving a Code of Practice (CL:AIRE) that was unknown to the expert at the time of the original hearing.
Argued that this evidence could materially affect the court’s balancing exercise and supported a less onerous remediation approach.
Contended there was a reasonable explanation for not adducing this evidence earlier due to late discovery of the Code of Practice.

Prosecution (Environmental Appeal)

Contended that the fresh evidence did not meet the criteria under section 23 as it could have been obtained earlier with due diligence.
Argued that the evidence lacked sufficient weight and that the remediation proposals were technically unfeasible within a reasonable timeframe.
Supported the judge’s refusal to grant an extension of time for compliance with the Remediation Order based on the Appellant’s failure to appear and prior conduct.

Appellant (Firearms Appeal)

Submitted that the court should conduct a Newton hearing or analogous procedure on appeal to resolve disputed facts relevant to exceptional circumstances for sentencing.
Argued that the sentencing judge erred in finding no exceptional circumstances justifying a departure from the mandatory minimum sentence.
Relied on authorities establishing the structured approach to exceptional circumstances and the relevance of the Appellant’s lack of knowledge of the firearm’s illegality.

Prosecution (Firearms Appeal)

Maintained that the sentencing judge was entitled to draw adverse inferences from the Appellant’s conduct and that no hearing was required where the defence did not request one.
Argued that the judge’s approach was consistent with established principles and that the appeal should be dismissed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v A&B (Informer: reduction of sentence) [1999] 1 Cr App R (S) 52	Clarification that the Court of Appeal Criminal Division is a court of review in sentencing appeals, not a sentencing court.	Affirmed the limited scope of sentencing appeals and the need for conditions under s.23 to admit fresh evidence.
R v Erskine [2009] EWCA Crim 1425	Discretion to admit fresh evidence is wide but case- and fact-specific, focusing on the interests of justice with factors listed in s.23(2).	Guided the court’s analysis of whether fresh evidence should be admitted, emphasizing the need for a reasonable explanation for non-adduction at trial.
R v Steven Jones [1997] 1 Cr App R 86	Expert witnesses are generally interchangeable; allowing new expert evidence on appeal that could have been called at trial subverts the trial process.	Applied to reject the admission of expert evidence that could and should have been presented at sentencing.
R v Thames Water Utilities [2015] EWCA Crim 960	Clarifies the procedure for establishing the factual basis for sentencing and the duty to deploy all evidence before the sentencing court.	Reinforced the obligation on advocates to present all material at sentencing and limited scope for fresh evidence on appeal.
R v Roberts, R v Caines [2007] 1 WLR 1109	Allows updated information post-sentence to be admitted without formal fresh evidence procedures in limited circumstances.	Identified exceptions permitting updated prison or pre-sentence reports to be admitted on appeal.
R v Beesley and Coyle [2012] 1 Cr App R (S) 15	Limits exceptions to receiving updated information; fresh psychiatric or psychological evidence requires compliance with s.23.	Applied to restrict admission of fresh expert evidence without satisfying statutory criteria.
R v Hughes [2009] EWCA Crim 841; R v Vowles [2015] 1 WLR 5131	Emphasize necessity of compliance with s.23 for fresh evidence and the requirement for a persuasive explanation for non-adduction at trial.	Supported the court’s insistence on strict adherence to statutory conditions for fresh evidence.
R v Guppy (1995) 16 Cr App R (S) 25	Newton hearing procedure where defendant bears burden of proving disputed facts on balance of probabilities.	Considered but rejected the holding of a Newton hearing on appeal in the relevant case.
R v Malook [2011] EWCA Crim 254	Review of Newton hearing findings on appeal with no power to remit to Crown Court.	Confirmed limitations on appellate Newton hearings.
R v Flack [2008] EWCA Crim 204	Sets out considerations for destruction orders under the Dangerous Dogs Act regarding dog temperament and owner fitness.	Applied to assess the appropriateness of destruction and contingent destruction orders.
R v Roberts [2016] EWCA Crim 71	Requirement for new counsel on appeal to obtain information from previous counsel about failure to adduce evidence at trial.	Emphasized procedural duties in presenting fresh evidence on appeal.
R v AXN and ZAR [2016] EWCA Crim 590	Discusses the narrow scope for admitting updated texts as fresh evidence on appeal.	Applied to limit exceptions to s.23 compliance.
R v Rehman and Wood [2006] 1 Cr App R (S) 77; R v McCleary [2014] EWCA Crim 302; R v McCarthy [2013] EWCA Crim 2500; R v Zhekov [2014] 1 Cr App R(S) 69; R v Withers [2015] EWCA Crim 132	Framework for determining exceptional circumstances justifying departures from mandatory sentences.	Applied to conclude that exceptional circumstances existed warranting sentence reduction.
R v Avis [1998] 1 Cr App R (S) 420	Principles governing structured approach to exceptional circumstances in sentencing.	Referenced in assessing the appeal on exceptional circumstances grounds.

Court's Reasoning and Analysis

The court began by outlining the general principles governing the admission of fresh evidence on sentencing appeals under section 23 of the Criminal Appeal Act 1968. It emphasized that the Court of Appeal is a court of review, not one to rehear sentencing, and that fresh evidence is admitted only when conditions in s.23 are satisfied, including the interests of justice and a reasonable explanation for failure to present evidence earlier.

The court acknowledged limited exceptions permitting updated information, such as post-sentence prison reports, without strict compliance with s.23.

Regarding the first appeal, the court analyzed the conflicting expert evidence on the dangerousness of the dog and the owner’s ability to control it. It found the presentation of expert evidence unsatisfactory, noting unexplained deletions and changes in expert opinions. Despite admitting some fresh evidence, the court held that the judge’s findings on the owner’s inability to control the dog were decisive and that the evidence did not establish that the dog posed no danger to public safety.

In the second appeal, the court considered the application to admit fresh expert evidence about remediation feasibility. It found that the evidence could have been obtained with due diligence before the original hearing and that the proposals lacked sufficient certainty or feasibility. The court also upheld the refusal of an extension of time for compliance, noting Tapecrown’s prior conduct and failure to attend the hearing.

In the third appeal, the court examined whether a Newton hearing or similar procedure should be conducted on appeal to resolve disputed facts relevant to exceptional circumstances. It concluded that no such hearing was warranted on appeal as the evidence could and should have been presented at sentencing. The court then applied established principles on exceptional circumstances, finding that the sentencing judge erred in not recognizing exceptional circumstances justifying a reduced sentence.

Holding and Implications

Appeal 1 (Dangerous Dogs Act): Leave to appeal was granted but the appeal was dismissed. The court upheld the destruction order on the basis that the dog posed a danger to public safety and the owner was unable to control it. Fresh evidence was admitted de bene esse but did not affect the outcome. No new precedent was set.

Appeal 2 (Environmental Appeal): All applications were refused, including leave to appeal the Remediation Order, extension of time, and admission of fresh evidence. The court endorsed the Crown Court’s discretion to impose the Remediation Order and to refuse indulgence based on the Appellant’s conduct and lack of diligence. The direct effect is that the Remediation Order stands and must be complied with. No new legal principles were established.

Appeal 3 (Firearms Appeal): The appeal was allowed in part by substituting the sentence of five years’ imprisonment with a sentence of two years. The court held that exceptional circumstances existed justifying a departure from the mandatory minimum sentence. The ruling clarifies the structured approach to exceptional circumstances in sentencing and the necessity of a Newton hearing procedure at trial rather than on appeal.