Pilley, R. v

Factual and Procedural Background

The Appellant was tried at the Crown Court at The City before Judge Knowles and a jury. The trial ran from October 2022 to May 2023 and lasted approximately seven months. The Appellant was convicted of two counts of fraudulent trading (section 993 Companies Act 2006), one count of being concerned in an arrangement facilitating criminal property (section 328 Proceeds of Crime Act 2002), and one count of fraud by misrepresentation (sections 1 and 2 Fraud Act 2006). On 4 July 2023 the Appellant was sentenced to a total of 13 years' imprisonment. The Appellant applied for an extension of time to seek leave to appeal against his convictions, relying principally on fresh psychological evidence concerning a post‑trial diagnosis of ADHD and alleged cognitive impairment. An earlier separate ground relating to an alleged jury irregularity was previously refused; this judgment addresses only the ground based on fresh psychological evidence and the application under section 23 of the Criminal Appeal Act 1968.

Legal Issues Presented

1. Whether the court should receive fresh expert psychological evidence under section 23 of the Criminal Appeal Act 1968.
2. Whether, having regard to that fresh evidence, the Appellant's convictions are unsafe (i.e. whether any diagnosed ADHD and/or cognitive impairment rendered the trial unfair).
3. Whether an extension of time to seek leave to appeal should be granted to permit reliance on that fresh evidence.

Arguments of the Parties

Appellant's Arguments

• The Appellant relied on fresh expert evidence that he has ADHD and associated cognitive impairment, diagnoses not known at trial, which disadvantaged him in preparing for trial, giving instructions and particularly when giving evidence in his own defence.
• Evidence of ADHD could have supported an evidential defence (inattention to detail) and justified procedural adjustments (e.g. an intermediary, adapted pacing, tailored directions) that might have assisted the jury's evaluation of his conduct and state of mind.
• Trial counsel (Attorney Laidlaw) stated that knowledge of the diagnoses would have influenced preparation and might have led to advice that the Appellant not give evidence, or to calling expert evidence instead.

Respondent's Arguments

• The Respondent submitted that any disability was modest and that the totality of evidence showed the Appellant participated effectively in the trial, so the convictions are safe.
• The Respondent relied on fresh expert reports (Attorney Brody) asserting ADHD symptoms were mild, there was no clinically significant intellectual impairment, and the Appellant's business achievements and trial performance were inconsistent with severe impairment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out the statutory test in section 23 Criminal Appeal Act 1968 and the factors at s23(2) (capable of belief; may afford ground for allowing appeal; would have been admissible; reasonable explanation for failure to adduce earlier). The court considered the fresh evidence de bene esse and reviewed written reports and oral evidence from the competing experts and from trial counsel.

It was common ground that the Appellant has ADHD, but the experts disagreed on severity, the existence of clinically significant intellectual impairment, and the extent to which any conditions affected trial participation. Attorney Young diagnosed ADHD with combined presentation and, in later testing, reported borderline IQ with weaknesses in processing speed and non‑verbal reasoning, opining these would probably have disadvantaged the Appellant in a prolonged, document‑heavy trial and that demeanour could be misinterpreted. Attorney Brody accepted ADHD but assessed symptoms as mild, rejected clinically significant intellectual impairment, questioned the validity of some testing and relied on the Appellant's functional achievements and trial performance to conclude no material effect on trial participation.

The court criticised Attorney Brody's methodology insofar as he sought to overturn clinical assessment without being able to conduct an independent clinical assessment, observing that his role effectively involved evaluative clinical judgments despite his stated limitations. The court nevertheless did not need to resolve every expert dispute. Proceeding on a basis broadly favourable to the Appellant (accepting significant ADHD symptoms and some below‑average functioning in specified domains), the court nonetheless identified reasons for caution about aspects of Attorney Young's testing and conclusions, noting inconsistencies between some test results and the trial transcripts where the Appellant used certain words appropriately.

The court placed significant weight on real‑world functional evidence: the Appellant's role founding and running a substantial group of companies (Company B), his commercial successes and sustained functional performance. The court accepted Attorney Laidlaw's evidence that knowledge of the diagnoses would have affected preparation and decisions about whether the Appellant should give evidence, but treated retrospective counsel evidence cautiously and concluded it was at least doubtful the trial could have been conducted materially differently in a way likely to change the outcome. The court examined the trial transcripts: the Appellant gave detailed evidence over 18 days, his examination in chief set out his case at length, and judge interventions were directed to clarity rather than hostility.

Weighing the clinical evidence alongside extensive non‑expert evidence of functioning and the nature of the prosecution case (substantial documentary material and recordings), the court concluded that even on the most favourable view to the Appellant the fresh evidence did not establish that he was unable to participate effectively or that adaptations would realistically have altered the trial's outcome. The separate fraud (count 4) was noted as unaffected by the new evidence and relevant to the jury's assessment.

Holding and Implications

The court refused to receive the proposed fresh evidence and refused the applications for leave to appeal and for an extension of time.

Consequences and implications as stated by the court:

• The convictions are held to be safe; no fresh evidence is admitted and no arguable basis for appeal remains.
• No retrial will be ordered and the interim reporting restriction lapses so proceedings may be reported in full.
• An application for costs by the Respondent (Company A) was raised; the court ordered the Respondent to file the costs application and bill within 14 days and allowed 14 days for the Appellant's response, with the court to decide the costs issue on the papers in due course.
• No new precedent was established; the decision applied established principles (s23 CAA 1968 and the test whether a conviction is unsafe) to the facts of this case.