Porch, R v

Factual and Procedural Background

On 12th February 2016, in the Crown Court at Snaresbrook before HH Judge Hammerton and a jury, the Appellant, aged 34, was convicted on a majority verdict of blackmail and assault by beating. His co-accused, the Appellant's former partner, was also convicted of blackmail. The Appellant was sentenced to a total of 5 years' imprisonment and the co-accused to 2 years' imprisonment.

The Appellant sought an extension of time of 1164 days to apply for leave to appeal against his conviction and to adduce fresh evidence pursuant to section 23(1) of the Criminal Appeal Act 1968. The single judge referred these applications to the court. The court granted the extension of time, leave to adduce fresh evidence, and leave to appeal. Following full argument, the court allowed the appeal and quashed the convictions.

The Crown indicated it would not seek a retrial and undertook to notify the co-accused of the outcome so she could apply for leave to appeal and an extension of time. The court directed that any such appeal be listed before a constitution including Lady Justice Andrews or Mrs Justice Cutts.

The complainant was a close friend of the Appellant and had spent time with him consuming alcohol and drugs at the Appellant's flat. The prosecution case was that the Appellant and others had given the complainant boxes containing shotgun cartridges to store in his parents' garage. The complainant later sought to have the boxes removed and was allegedly assaulted and threatened by the Appellant and another man regarding a missing sum of money.

The complainant's mother made payments totaling £900 in cash to the co-accused on behalf of the complainant. The prosecution alleged threats were made to collect £2,000 owed by the complainant. The Appellant denied making threats or assaulting the complainant and claimed the debt related to damage to his car caused by the complainant.

Police seized 19 mobile phones from the co-accused's address, including three phones relevant to the appeal: two belonging to the Appellant and one to the complainant. None of these phones were interrogated before trial. The Appellant's evidence at trial included an account of a financial arrangement with the complainant regarding the car damage and denied involvement in the assault or blackmail allegations.

The Appellant sought to rely on messages downloaded from the three mobile phones as fresh evidence, which he argued would significantly undermine the complainant's credibility and account.

Legal Issues Presented

1. Whether an extension of time should be granted for the Appellant to apply for leave to appeal against conviction.
2. Whether fresh evidence obtained from mobile phone downloads should be admitted pursuant to section 23(1) of the Criminal Appeal Act 1968.
3. Whether the convictions are unsafe in light of the fresh evidence.

Arguments of the Parties

Appellant's Arguments

• The fresh mobile phone evidence would have significantly undermined the complainant's credibility and account at trial.
• The failure to obtain and disclose the phone evidence was due to a combination of errors and misunderstandings, for which the Appellant should not be penalised.
• The Appellant had provided instructions to his legal team that his phones contained relevant material, but the evidence was not obtained or disclosed in time.
• The fresh evidence supports the defence thesis that the complainant fabricated allegations to conceal financial difficulties related to his lifestyle.

Respondent's Arguments

• The Crown accepted that the mobile phone messages were authentic and would have been admissible at trial.
• The Crown contended that the messages would not have taken matters further and that the complainant's chaotic lifestyle was already accepted.
• The Crown did not seek a retrial following the appeal decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the statutory framework under section 23(1) and (2) of the Criminal Appeal Act 1968, which grants discretion to admit fresh evidence if it is credible, relevant to the appeal, admissible, and there is a reasonable explanation for its prior non-admission.

The court acknowledged a catalogue of errors and misunderstandings by the police, CPS, and defence, which led to the failure to interrogate and disclose mobile phone evidence. The officer in the case wrongly assumed the phones contained no relevant material and did not revisit this decision despite CPS advice.

The prosecution had identified mobile phone evidence as potentially relevant but did not disclose it, and the defence did not proactively pursue inspection, partly due to late changes in counsel.

The court examined the fresh evidence, which consisted of text and WhatsApp messages from three mobile phones, two belonging to the Appellant and one to the complainant. The messages revealed significant information undermining the complainant's credibility, including evidence of longstanding debts, financial difficulties, drug and gambling problems, and contradictory relationships with others involved.

The court found the fresh evidence would have materially impacted the jury's assessment of the complainant's reliability and the overall safety of the convictions. The court concluded there was a real possibility that the jury would have reached a different verdict had this evidence been available at trial.

Accordingly, the court exercised its discretion to admit the fresh evidence and allowed the appeal on grounds of unsafe convictions.

Holding and Implications

The court ALLOWED the appeal and QUASHED the convictions on both counts faced by the Appellant.

The Crown undertook not to seek a retrial and to notify the co-accused of the outcome to facilitate her potential appeal. The decision directly affects the parties by overturning the Appellant's convictions and allowing an opportunity for the co-accused to appeal. No new precedent was established beyond the application of established principles regarding fresh evidence and appeal procedures.