R v Rogers; R v Tapecrown Ltd; R v Beaman
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd CJ |
| Judgment Date | 01 July 2016 |
| Neutral Citation | [2016] EWCA Crim 801 |
| Docket Number | Case Nos: 2015/03299/A3, 2015/04932/A3, 2016/01407/A3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 July 2016 |
[2016] EWCA Crim 801
The Lord Chief Justice of England and Wales
THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
and
Mrs Justice Andrews DBE
Case Nos: 2015/03299/A3, 2015/04932/A3, 2016/01407/A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Pamela Rose (who did not appear in the Crown Court) for the appellant Georgina Rogers
Mr Timothy Cray and Mr L Ingham for the Respondent to the appeal in Georgina Rogers and Beaman
Mr S Cramsie for the appellant Tapecrown
Mr C Badger for the Respondent Environment Agency
Mr Paul Wakerley (who did not appear in the Crown Court) for the appellant Beaman
Hearing date: 5 May 2016
This is the judgment of the court to which we have all contributed:
These three appeals were heard together as they gave rise to general questions as to the circumstances in which s.23 of the Criminal Appeal Act 1968 (the 1968 Act) applies to fresh evidence or other information which an appellant may seek to adduce before this court on an appeal against sentence.
THE GENERAL PRINCIPLES
S.23 of the Criminal Appeal Act 1968
As was made clear in the judgment of Lord Bingham CJ in R v A&B (Informer: reduction of sentence) [1999] 1 Cr App R (S) 52 at 56, the Court of Appeal Criminal Division is, in relation to sentencing, a court of review. Its function is to review sentences passed below and not to conduct a sentencing hearing.
However, it is clear that s.23 of the 1968 Act (as amended) permits the court to receive fresh evidence on appeal against sentence (as that term is defined in s.50 of the Act), provided the conditions set out in the section are met.
"(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice—
(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to—
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
(3) Subsection (1)( c) above applies to any evidence of a witness (including the appellant) who is competent but not compellable.
(4) For the purposes of an appeal under this Part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)( b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court."
There are circumstances, to which we refer at paragraphs 8 to 10, where the court will consider updates to information placed before the sentencing judge without the conditions in s.23 being applied, but otherwise s.23 of the 1968 Act is by its express terms of general application to all sentencing appeals.
In approaching s.23 of the 1968 Act, a court must always have in mind the observations of Lord Judge CJ in R v Erskine [2010] 1 WLR 183, [2009] 2 Cr App R 29, [2009] EWCA Crim 1425 at paragraph 39:
"Virtually by definition, the decision whether to admit fresh evidence is case—and fact-specific. The discretion to receive fresh evidence is a wide one focussing on the interests of justice. The considerations listed in subsection (2) (a) to (d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the "interests of justice" test will be satisfied."
Thus the general principles in relation to the admission of fresh evidence in appeals against conviction will generally apply. In the context of one of the appeals before us (Georgina Rogers), where expert evidence was adduced before the sentencing judge as to whether a dog was dangerous, the principles set out by Lord Bingham CJ in R v Steven Jones [1997] 1 Cr App R 86 apply:
"Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury. If it is said that the only expert witness in an established field whose opinion supports a certain defence was unavailable to testify at the trial, that may be thought (save in unusual circumstances) to reflect on the acceptability of that opinion."
In sentencing appeals the court will scrutinise intensely any application to give a factual explanation that was not before the sentencing court. The terms of the Criminal Practice Direction make clear the procedure which should be followed in relation to establishing the factual basis for sentencing: see R v Thames Water Utilities [2015] EWCA Crim 960, [2015] 1 WLR 4411 at paragraphs 8–12 and 24–25. It is therefore the duty of all advocates to deploy before the sentencing judge all the evidence, information and other material on which they seek to rely.
The exception: the receipt of updated information
The circumstances in which the court will receive updated information not before the trial judge were described by Lord Judge CJ in R Roberts, R v Caines [2006] EWCA Crim 2915, [2007] 1 WLR 1109 at paragraph 44:
"From time to time, the court will be provided with updated information about the offender. This sometimes takes the form of prison reports, sometimes confidential information from the police. The sources vary. The information may serve to show, for example, that the prisoner has provided considerable assistance to the police; sometimes aspects of the mitigation are significantly underlined in a way which may not have been as clear or emphatic in the Crown Court; sometimes the information may indicate that the offender has made significant progress since the sentence began, a feature particularly relevant in cases involving young offenders. The formal procedures for the admission of fresh evidence are not followed. This court simply considers the evidence before it. So, for example, if a young offender has responded positively to his custodial sentence, and his progress is such that it may be counter-productive for him to serve the sentence actually imposed, it may be reduced on appeal, or changed to a non-custodial disposal, without any implied criticism of the decision of the Crown Court. In short, post-sentence information may impact on and produce a reduction in sentence (for a recent example of post-sentence evidence bearing on and explaining aspects of mitigation, with a consequent reduction in the minimum term following conviction for murder, see R v Sampson [2006] EWCA Crim 2669)."
As was explained in R v Beesley and Coyle [2011] EWCA Crim 1021, [2012] 1 Cr App R (S) 15 at paragraphs 33–36, the exception is strictly limited. It will include updated pre-sentence and prison reports on conduct in prison after sentence, but not fresh psychiatric or psychological evidence in support of an argument that a finding of dangerousness ought not to have been made or a hospital order should have been made. In such a case, the court will apply the provisions of s.23: see R v Hughes [2009] EWCA Crim 841 and [2010] EWCA Crim 1026 and R v Vowles [2015] EWCA Crim 45, [2015] 1 WLR 5131 at paragraphs 3 and 4. Compliance with s.23 is necessary for two reasons. First, because it is incumbent on those acting for the defendant to call all the evidence before the sentencing court, persuasive evidence is required to explain why it was not all called. Second, the court must consider whether it is in the interests of justice that it should be admitted notwithstanding that failure. If the advocate representing the applicant before...
To continue reading
Request your trial
-
R v Robert Dawson
...it was unsatisfactory that the factual basis for sentence was not established in accordance with the procedure laid down by this court in R v Rogers [2016] EWCA Crim 801; [2016] 2 Cr App R (S) 36. At [121] Lord Thomas CJ said: “In our judgment the procedure should follow that of a Newton he......
-
R v Stephen Robert Williamson
...may not assist the applicant, as was made clear by the Lord Chief Justice in the recent judgment in Beaman part of the conjoined appeal in R v Rogers [2016] EWCA Crim 801 paragraph 123. There is no obligation upon a judge to accept a defendant's contentions without hearing from him or to al......
-
Anis Abid Sardar v The Crown
...rather than US forces. The extent to which fresh evidence should be admitted on an appeal against sentence was considered by this court in R v Rogers [2016] EWCA Crim 801, [2016] 2 Cr App R (S) 36 referring to the fact that the general principles in appeals against conviction apply also to ......
-
Cameron John Cleland v The Queen
...was not advanced at the time. Each case is likely to be decided on its own specific facts.” 44 In the more recent case of R v Rogers [2016] EWCA Crim 801, [2017] 1 WLR 481 Lord Thomas CJ made clear that where an appellant seeks to argue, on the basis of evidence acquired post-sentence, th......
-
The Safety of Convictions in the Court of Appeal: Fresh Evidence in the Criminal Division Through an Empirical Lens
...of anything that [M] said in the65. [2009] EWCA Crim 1425.66. Ibid [39].67. See R v Grant-Murray [2017] EWCA Crim 1228; R v Rogers [2016] EWCA Crim 801; and R v Bakir [2014] EWCA Crim2420.68. Roberts (n 6) 323.69. Erskine (n 65) [39].70. Ibid.71. Roberts (n 6) 321.72. Ibid 324.73. Ibid 321.......