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Erorh, R. v
Factual and Procedural Background
The Appellant (then aged 17) was tried in November 2020 before Judge Lodge and a jury at The Crown Court and convicted of wounding with intent for an incident on 14 March 2020 outside a restaurant called After Hours in The City. The victim (hereafter "Victim") survived the injury and, on 5 March 2021, Judge Lodge imposed an extended sentence of 14 years (10 years custody and a 4-year extended licence). The Victim died of his injuries on 21 June 2021. The Appellant was re‑tried on a charge of murder (alternative: manslaughter) before the same judge at The Crown Court and, on 4 October 2024, a jury acquitted him of both charges. The Appellant now seeks leave to appeal the 2020 conviction, primarily seeking admission of fresh evidence from an eyewitness (hereafter "Witness") who gave evidence at the second trial but not the first, and an extension of time to bring the application.
Legal Issues Presented
- Whether the 2020 conviction for wounding with intent is unsafe in light of the Appellant's acquittal at the second trial.
- Whether fresh evidence (the Witness's second‑trial testimony) should be received under section 23 of the Criminal Appeal Act 1968.
- Whether an extension of time to apply for leave to appeal should be granted.
Arguments of the Parties
Appellant's Arguments
- The second trial revealed materially new grounds: the Witness's evidence, not called at the first trial, supports the Appellant's claim of self‑defence.
- The Appellant promptly applied for leave after gaining the relevant knowledge; an extension of time is therefore justified.
- Application under section 23 Criminal Appeal Act 1968 to admit (1) the transcript of the Witness's evidence and (2) a statement from the Appellant's solicitor explaining why the Witness was not called previously.
Prosecution's Arguments
- The Witness's evidence should not be admitted under section 23 because no reasonable explanation has been given for failing to adduce it at the first trial; the Witness was available to the defence then.
- Even if admitted, the Witness's evidence is inconsistent and weak in places and should not render the conviction unsafe; the first trial and conviction were fair.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Erskine and R v Williams [2009] EWCA Crim 1425 | Trial process must not be subverted; preserve integrity of statutory system when admitting fresh evidence. | Cited to emphasise caution in admitting evidence available at trial and to underline exceptional nature required to admit such evidence. |
| R v Mushtaq Ahmed [2010] EWCA Crim 2899 | Approach to assessing safety of conviction with fresh evidence; ultimate responsibility lies with Court of Appeal to decide safety. | Applied as the governing approach for evaluating whether fresh evidence renders a conviction unsafe. |
| Pendleton [2001] UKHL 66; [2002] 1 Cr App R 34 | House of Lords guidance rejecting that jury impact test is determinative; assists in testing court's view. | Referenced within Mushtaq Ahmed framework to explain the limited role of "jury impact" as a test. |
| Dial [2005] UKPC 4; [2005] 1 WLR 1660 | Authority on court's assessment of fresh evidence and jury impact test. | Referenced to support the proposition that the court must form its own view on safety. |
| Burridge [2010] EWCA Crim 2847 | Recent consideration of fresh evidence principles by the Court of Appeal. | Used as part of the survey of authority supporting the court's approach to fresh evidence. |
| Stafford v DPP [1974] AC 878 | Authority on the limited role of jury impact when assessing fresh evidence. | Cited to show precedent for what the jury impact test represents in appellate review. |
| R v Hakala [2002] EWCA Crim 730 | Statement that the essential question is whether, in the light of fresh evidence, convictions are unsafe. | Reinforced the court's focus on the single question of safety when fresh evidence is considered. |
Court's Reasoning and Analysis
The court applied section 23(1) and (2) of the Criminal Appeal Act 1968, considering the four statutory factors: (a) capability of belief, (b) potential to afford a ground for allowing the appeal, (c) admissibility at trial, and (d) reasonable explanation for failure to adduce at trial.
The court examined available material de bene esse, including a contemporaneous police note (Officer Crofts) that recorded the Witness speaking to police on the evening of the incident and disclosure of that note to the defence before the first trial. The Appellant's solicitor (Attorney Subero) provided a Gogana‑type statement explaining limited follow‑up in 2020 and recounting difficulties in engaging the Witness; the court found that explanation weak but accepted Attorney Subero's evidence as honest and not indicative of a deliberate tactical decision.
The court concluded the Witness's evidence is capable of belief despite some inconsistencies with CCTV and some hostility to police. The evidence concerns the early part of the altercation not captured on CCTV and is not contradicted by other eyewitnesses. The court found the evidence may afford a ground of appeal on the central issue of self‑defence and would have been admissible at the first trial. Given the unusual circumstances (a second trial where the Witness's evidence was tested and led to acquittal), the court exercised its discretion to admit the evidence as fresh under section 23.
Having admitted the evidence, the court extended time for the application and granted leave to appeal. Applying the Mushtaq Ahmed approach, the court evaluated whether the fresh evidence rendered the 2020 conviction unsafe. The court accepted that the Witness's evidence was central and powerful on the issue of self‑defence, noted the acquittals at the second trial as demonstrating the evidence's persuasive effect, and concluded there was doubt as to the safety of the first conviction. The court emphasised that, apart from the fresh evidence, there was no basis to criticise the fairness of the first trial.
Holding and Implications
CONVICTION QUASHED
Direct consequences: the court allowed the appeal, quashed the 2020 conviction for wounding with intent, admitted the Witness's second‑trial evidence as fresh evidence, extended time for the application, and granted leave to appeal. The prosecution informed the court it did not seek a retrial; the court noted there would be no retrial. The opinion does not purport to establish a new general rule beyond applying established authority and emphasises the decision rests on the specific and unusual facts of this case.
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