Fresh evidence and an appeal out of time
D was convicted of fraud after a Crown Court trial. The prosecution case relied on the company's accounting records and the evidence of the finance director. Two years after conviction, a former employee provides a witness statement saying the finance director asked her to alter the records and that she saw him backdate entries. D's trial counsel had not called an expert accountant who could have shown the records were altered. D wants to appeal out of time. The conviction was two years ago; the notice of appeal was never filed. D has been in custody for part of that time and says he did not know how to appeal.
1. What grounds of appeal arise and how does the court test fresh evidence?
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Grounds. The fresh witness statement from the former employee is capable of undermining the finance director's evidence and showing the records were altered. The failure to call an expert accountant may amount to ineffective assistance, but the court will ask whether counsel's decision was tactical and whether it rendered the trial unfair. The conviction may be unsafe under Criminal Appeal Act 1968 s.2.
Fresh evidence test. Under s.23, the court may receive fresh evidence if it is capable of belief, would have been admissible, and there is a reasonable explanation for not adducing it at trial. The former employee's evidence is new and relevant. The expert evidence may also be fresh if it could not reasonably have been obtained earlier. The court will consider the strength of the new evidence against the prosecution case.
2. What is the procedure for appealing out of time and how should the court approach the extension?
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Time limit. Notice of appeal must normally be given within 28 days of conviction. D is two years late and must apply for an extension of time, explaining the delay. The court will consider the length of delay, the reasons, and the merits; if the grounds are strong, an extension is more likely.
Procedure. D should apply to the Crown Court with the notice of appeal and application for extension. Alternatively, D can apply to the Criminal Cases Review Commission, which can refer a conviction to the Court of Appeal even where appeal rights have been exhausted or time has expired. The CCRC will investigate the fresh evidence and counsel's conduct. D should also consider whether there is a separate appeal against sentence, though none is identified here.