Brookes, R. v

Factual and Procedural Background

This opinion concerns a renewed application for permission to appeal against conviction, brought over five years out of time, with an extension sought for that period. The Defendant was convicted on 28 February 2014 at the Crown Court following a trial of 25 counts of dishonest conduct occurring from 2009 to 2012. Shortly before a second trial on a separate indictment, the Defendant pleaded guilty to eight counts on 10 March 2014, with other counts left on the file. Sentencing occurred on 6 May 2014, resulting in a total custodial sentence of 30 months, later reduced on appeal to 18 months in July 2014. The Defendant had a history of brain surgery in 2005 to remove a tumour, after which she returned to work as a police officer, eventually reaching the rank of Chief Inspector. The offending occurred while she held this senior position, culminating in her arrest in January 2012.

Legal Issues Presented

1. Whether permission should be granted to admit fresh evidence under section 23 of the Criminal Appeal Act 1968.
2. Whether an extension of time should be granted for bringing the appeal out of time.
3. The relevance and impact of fresh expert neuro-psychiatric evidence on the issue of the Defendant's dishonesty.
4. The effect of the changed legal test for dishonesty established by the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 on the appeal.

Arguments of the Parties

Appellant's Arguments

• The fresh evidence from a neuro-psychiatrist expert report dated 23 July 2018 and accompanying statement was relevant to the question of dishonesty, as it demonstrated behavioural effects from the Defendant’s 2005 brain surgery impacting her perception of her own conduct.
• The Defendant argued that had the jury been aware of these effects, they might have entertained a reasonable doubt as to her dishonesty.
• It was submitted that the law on dishonesty remains unsettled following the Supreme Court’s decision in Ivey, potentially benefiting the Defendant’s case.
• The Defendant contended that there was a material difference between the earlier expert reports available before trial and the later report, particularly regarding the utility of the evidence to the jury.

Respondent's Arguments

• The Crown resisted both the extension of time and permission to appeal, filing a respondent’s notice.
• It was argued that the earlier expert evidence was substantially similar in essence to the fresh evidence and had been considered at trial.
• The Crown maintained that the fresh evidence would not have assisted the jury on the key issue of dishonesty and might have undermined the Defendant’s defence.
• The change in the legal test for dishonesty under Ivey did not assist the Defendant, as the objective test was met by the jury’s verdict.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered the renewed applications and agreed with the earlier single judge’s refusal of all applications. The court emphasized the following points:

• The Court of Appeal’s earlier decision on sentence found no basis to reduce the Defendant's responsibility for the offending, which was deliberate and sustained during a senior police role.
• The fresh expert evidence was essentially similar to earlier expert reports available before trial, which had considered the impact of brain surgery on personality and understanding of right and wrong.
• Trial counsel had strategically chosen not to rely on the earlier expert evidence as it was unlikely to assist the jury on dishonesty and could have undermined the defence.
• The difference between the experts lay in whether the evidence would assist the jury, not in the medical opinion itself; the court sided with the view that the evidence would not assist but could undermine the defence.
• The change in the law under Ivey to an objective test of dishonesty did not aid the Defendant, as the jury’s verdict already reflected dishonesty by ordinary standards.

In sum, the court found no compelling reason to admit the fresh evidence or extend time for appeal.

Holding and Implications

The court REFUSED the applications for extension of time, admission of fresh evidence, and permission to appeal.

The direct effect is that the Defendant’s convictions and sentence stand as determined. No new legal precedent was established by this decision, and the court reaffirmed the application of the objective test for dishonesty under Ivey in the context of fresh evidence applications.