In this interesting case the Court of Appeal allowed an extension of 1164 days to admit fresh evidence regarding phone records which due to various circumstances were not available at the time of trial.
A question arose over what position the Court should take if the material had not arisen due to a failure by the Crown of its duty of disclosure and the Court emphasised that:
"27.Much of the argument before us understandably focused upon why the evidence was not adduced at trial and whether the prosecution failed in its duty of disclosure. However, it is well established that even if there is no reasonable explanation for the failure to adduce the evidence at the trial, the interests of justice are a paramount consideration: see e.g. R v Sales [2000] Cr App R 431. The power to receive fresh evidence represents a potentially very significant safeguard against the possibility of injustice. Ultimately the question for this court is whether, in the light of the additional evidence, the convictions are unsafe. That can be tested by asking what impact that evidence might have had on the mind of the jury, or whether there is a real possibility that, if defence counsel had been in the position to use that material at trial, the jury would have arrived at a different verdict."
The Court accordingly went on to hear the evidence "de benese" to decide whether it was such as to render the conviction unsafe.
Further the Court noted that it was no excuse that the Defence had failed to mention mobile telephone evidence or made a request for such evidence at that stage. The Crown knew that the evidence was an area which needed to be investigated thoroughly.
The Judgment is well worth a read with regard to a fair exposition of the difficulties solicitors had in getting the evidence post-conviction and piecing together the appeal and the catalogue of interlinked circumstances which gave rise to the appellants misfortune.
Each case must of course be decided on its own merits and the impact of the material was a fact specific exercise, nonetheless this represents a powerful restatement of the principles of fairness where there had been significant relevant non-disclosure.