The Court of Appeal has very strict rules about evidence that was not used at trial. This fact sheet looks at those rules and considers how you should prepare an application to produce “fresh” evidence.

The Application Form

If you want to rely on fresh evidence in your appeal you will need to fill out an application form called Form W. On the form you will need to (1) name the witness giving the evidence, (2) say what evidence the witness can give, and (3) explain why the evidence was not given at trial. The evidence should be in the form of a witness statement, which you can attach to the form.

If the fresh evidence is a written document, there should still be a statement should be from somebody to “exhibit” (produce) the evidence. For example, if person A has sent messages to person B on facebook, and person C wants to use them in his appeal, there should be a statement from person B confirming the fact that s/he received those messages

The Criteria

The Court will consider 4 things when deciding whether or not to “receive” fresh evidence. They are set out in the Criminal Appeal Act, which uses some quite technical language. In Plain English the 4 things amount to this: (1) is the evidence believable? (2) could the evidence be a reason for allowing the appeal, (3) could the evidence have been used in the trial? (4) is there a reasonable explanation for the evidence not being used at the trial?

Is the evidence believable?

The way in which the Court decides whether the fresh evidence is “capable of belief” (believable) depends upon what type of evidence is involved. For example: if the evidence is from an expert witness (let’s say a fingerprints expert) then the Court will probably accept that it is believable. In such cases this first hurdle is likely to be crossed quite easily.

If, however, you are looking to rely on “evidence of fact” (somebody saying that something happened, or that it did not happen) then the Court will look very closely at whether it is believable. If it is obviously not believable then the Court will probably reject it without giving it a  hearing. If it is unsure then the witness might need to come to Court to answer questions.

Could the evidence be a reason for allowing the appeal?

The way in which you answer this question is really important. It is all very well if the fresh evidence is believable if it could never be a reason for allowing the appeal. You need to explain to the Court of Appeal why the fresh evidence makes the conviction “unsafe”.

In doing so you need to think about how the fresh evidence is relevant to the issues in your case. What were the issues between the prosecution and the defence at the trial? Is this evidence relevant to those issues? If so, why and how? Might the jury might have reached a different verdict if they had heard the evidence? These are the sorts of questions that the Court of Appeal will be asking itself, so answer them at an early stage.

Could the evidence have been used at your trial?

Some types of evidence are “inadmissible”, i.e. they cannot be used in Court. For example: “hearsay” evidence (what someone heard), or evidence about someone’s sexual history, might be inadmissible. It can be difficult to say whether evidence is admissible so it is best to try and get some advice from a lawyer if  possible. If that isn’t possible you should still do your very best to say why you think that the evidence could be used.

Is there a reasonable explanation for the evidence not being used at your trial?

Even if you have got over all of the previous hurdles, this one can be the trickiest of all. The court will want to know whether the person giving the fresh evidence was spoken to at the time of your trial. If they weren’t, why not? If they were, why was the evidence not used? If a decision was taken not to use that witness, then you almost certainly cannot use them now, although that is not to say that you cannot try. 

If the witness was not spoken to at the time of the  trial the Court will look very closely at whether – with reasonable efforts – you might have been able to find it. You therefore need to set out very clearly why you say you could not have found the evidence. 

© Appeals Barrister