[2025] EWCA Crim 1103

The principles as to extension of time are well known. In R v Hughes[2009] EWCA Crim 841 at [20], it was said that an extension would "be granted only where there is good reason to give it and ordinarily where the defendant will otherwise suffer significant injustice". In R v Thorsby[2015] EWCA Crim 1, it was stated:

In R v N and LE (Vinh Cong) [2013] QB 379 at [86], the court confirmed that an applicant has no general right to advance what is in effect fresh instructions for the purposes of an appeal:

In R v Wilson[2016] EWCA Crim 65, the court reiterated that applications for extensions of time must be supported by an explanation for the delay in making the application and it is not enough to rely simply on the merits of the grounds of appeal.

The Crown correctly points out the current iteration of the grounds of appeal is nearly 6 years out of time. Only ground 2, which essentially repeats the original ground settled by Mr Smith and was refused by the single judge, can be said to be based on a ground that has been brought in time. The need for there to be good reasons for an extension of time is separate and distinct from the need to be there to be good reasons for an applicant to be allowed to vary their grounds. Where an applicant seeks to vary the grounds particularly after the decision of the single judge, the principles to be applied are those set R v James[2018] EWCA Crim 285; [2018] 1 WLR 2749 (see paragraphs 35 and 38). Of particular relevance to the present applications are 38(iii), (v) and (vi):

The test for the admission of fresh evidence is equally well-known. When considering whether to receive new evidence the court shall 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. As we have said, no good reason has been put forward to explain the need for an extension of time to vary the grounds or for the admission of the current iteration of the "fresh evidence" that the applicant wishes to adduce. We have nonetheless, in the broader interests of justice, considered whether and to what extent the applicant's January 2025 grounds have substance.

We start by referring to an application for disclosure. Both by his solicitors and on his own behalf since he has been acting in person, the applicant has applied for extensive orders for disclosure. We are assured by Ms Sumnall (counsel for the prosecution) that she has considered the requests and has satisfied herself that none of the requested documents fall within the principles governing post-conviction disclosure and/or that the documents falling within the principles do not exist. Specifically, she has confirmed that there is no page 2 to what I shall call "Southampton reference". There is no basis upon which we could properly go behind that assurance. As we explained during submissions, an application for leave to appeal is not an opportunity to embark on what would be a cross between a public inquiry and a retrial. So we turn to the January submission.

The January 2025 submission advances nine grounds of appeal. Ground 1 is that there is fresh evidence in the form of witnesses which he seeks leave to call pursuant to section 23 of the Criminal Appeal Act 1968. Much but by no means all of the proposed evidence is either hearsay, opinion or speculation. To the extent that it is not it relates largely to the existence of one or two fireplaces, to which we will return when considering whether the proposed grounds of appeal arguably cast doubt on the safety of the applicant's convictions on counts 1 and 2 or more generally.

Dealing with each witness in turn who is included in the most recent list of those he wishes to call, the first is his brother, Andreas McGrath. Most of the witness statement consists of what appears to be speculation and opinion evidence about the basis for payments from Balrath Capital, a company formed by Conor McGrath and with which Andreas McGrath was not involved. It provides information about the state of the applicant's marriage, which is partial and difficult to reconcile with other information since it asserts that the applicant and his wife separated in 2006 despite their being evidently together in 2015 and 2018 as demonstrated by the evidence in the case including the ages of their four children. In relation to the fireplace, the witness statement asserts there were two fireplaces, one attached in the family home in Ireland and one removed to England by the applicant. The only reason for such evidence not being provided at trial appears to be that Andreas McGrath fell out with the applicant over ownership of some of the items that the applicant had taken from the family home.

Next, Sean McGrath, in respect of whom we have to deal with two witness statements, one dated 28 February 2023 and a further statement dated 28 February 2025. The witness statement dated 28 February 2023, seeks to explain why he did not give evidence at the applicant's trial. It is said that the only location that was available from which he could give evidence was his brother's Conor's home and that he was never told why that was the case. This is to be seen in the context of the response from Mr Tyrone Smith KC who, while agreeing that Sean McGrath was uncomfortable using the same video link that was to be provided for Conor McGrath at Somerville House (Conor McGrath being a prosecution witness) that was not the reason why Sean McGrath was not called. Inquiries had been made for him to give his evidence from elsewhere but, according to a further statement, Sean McGrath was told that no other facilities were available.

According to Mr Smith, there were several negatives to calling Sean McGrath. The applicant still wanted him to be called but Sean McGrath then indicated that he did not wish to be called. As a result, on 5 December 2018 Mr Smith informed the judge that Sean McGrath was not to be called and that the applicant agreed to that course of action. Subsequently, the applicant has produced the second statement from Sean McGrath, dated 28 February 2025. No explanation is provided for the late provision of this statement. In it the witness asserts that money received by the applicant's wife which was used when applying for remortgage was "an advance corporate fee payment from Conor McGrath’s UK company for medical services that the applicant's wife was to deliver to [the company] but which she ultimately failed to deliver." The second purpose is said to be "to explain that the McGrath family have been in the ownership of two very similar red fireplaces for many years."

On the first topic the witness statement gives Sean McGrath's belief about what was in his brother's Conor's mind when monies were paid to the applicant's wife and asserts that Conor believes that the evidence given at the Crown Court was incomplete. The second topic includes evidence about the existence of various antiques including two 18th century red Rococo fireplaces that were originally in Somerville House, one of which remains there and the other of which the applicant took to Garden Bothy in pieces.

The next witness is Mr John Perry, who says that his witness statement is dated 3 March 2023. Mr Perry says that he has known the extended McGrath family since approximately 2001. He states there were two very similar red marble antique fireplaces, the first of which is still fitted in Somerville House and the second of which was taken by the applicant to Scotland when he went to work there. Although it is his understanding that the second one was stolen from the Garden Bothy he evidently has no personal knowledge and says nothing about storage of the fireplace in England. The text of this statement appears to be the same as the statement previously advanced under ground 4 of Mr English’s July 2023 grounds which are now withdrawn. There is no explanation for this duplication of text or the different dates.

The next witness is Mr Niall Woods whose witness statement is dated 17 February 2023. Mr Woods says that he supplied the applicant and fitted at Somerville House a red Rococo fireplace some 20 years before (ie circa) 2003 and that he supplied but did not fit a similar Rococo fireplace to the applicant at his Dublin apartment. It is not clear when this second fireplace was supplied to the applicant.

The next witness is Mr Joseph O'Brien, whose witness statement is dated 26 February 2022. Mr O'Brien is the executor of the applicant's mother. He asserts that the Somerville House fireplace has been in position for 50 years (cf the witness statement of Mr Woods). He says that he saw a second similar fireplace stored at Somerville House in pieces (not in the applicant's flat) and that he later saw it in the Garden Bothy in a short shipping container although the date for that is not given. Yesterday or this morning we were given a further witness statement from Mr O'Brien who continues to assert his close connection with the McGrath family. It is not otherwise necessary to deal with his last statement.

It is to be noted that, according to the most recent list, the applicant no longer pursues the calling of Lorcan Donnellan, Florin Alexa, Kathryn Mullen, Imran Hamid and Brian Hamell who he had previously said he wished to call.

There are some fundamental difficulties in the way of all of this evidence. It is not necessary to concentrate on all those difficulties but the following major points emerge. First, despite the matter being raised at two previous hearings there are no Gogana statements. This is a serious omission in circumstances in which all of the witnesses have long-standing connections with the applicant and there is no very obvious reason why the evidence of those who are not the applicant's brothers could not reasonably have been called at trial and there is no explanation why it was not. Second, these statements are relied on primarily in support of the applicant's case that he did not lie when he said that a fireplace had been stolen during the reported burglary. The existence or otherwise of the second fireplace (the other one being in the Irish home) was an issue that was significantly litigated at trial. All of the witnesses whose evidence the applicant wishes to adduce are either related to the applicant or are long-standing friends or acquaintances of the applicant. All would have been able to give their evidence about the fireplaces in the same terms at the trial although the applicant’s bad relations with his brothers meant that one was a prosecution witness and another would not have been willing to give evidence. There is no reasonable explanation why the evidence could not have been collected and adduced at trial and it is not therefore fresh evidence.

There is however an even more fundamental question which is whether, even if the evidence of the witnesses were to be accepted, their evidence would afford a ground for allowing an appeal. The issue about the reported theft of the fireplace was only one aspect of the prosecution's case and evidence on counts 1 and 2. Taking the fireplace in isolation, there was evidence upon which the prosecution were entitled to rely in relation to the fireplace including first, the terms of the emails he sent to the police before and when attaching a picture of what proved to be the Somerville fireplace. The first email said he would send "pictures of the items taken" and the subsequent email attached the picture of the Somerville fireplace. Second, there was evidence of a sale of a fireplace in April 2015 to a dealer (Mr Paul Chesney) which, if it was accepted to be another fireplace than the one in respect of which he claimed, would imply the existence of not two but three fireplaces. Quite apart from that, the evidence adduced at trial in support of counts 1 and 2 was very powerful. There was no doubt that the applicant alleged that there had been a burglary, and that he tried to blame Florin Alexa. Nor is there any doubt that at the time he was in desperate financial straits. He needed and would try to use the insurance claim as security for a further loan from his bank. The evidence on counts 1 and 2 included evidence about the awkward access to and the small size of the cellar from which a large number of items were said to have been stolen, the exposed nature of the property and the configuration of the kitchen window through which access was said to have been gained to the house. It also included evidence that a remarkable number of items that had been included in the insurance claim were found still to be in possession of the applicant or the applicant's wife as summarised at paragraph 189 of the prosecution's opening at trial. We note in passing that the applicant's evidence to the jury was that he had a number of items that were identical to those that had been stolen. That explanation was evidently rejected as untrue. By way of example there was evidence that a painting of Cannes which the applicant said was his and had been stolen was found in the possession of its true owner. That was the second painting that the applicant claimed to have been stolen, with the applicant having changed his story about the first allegedly stolen picture when it was found still to be hanging in the Garden Bothy and also by way of example, a pair of distinctive sapphire drop earrings, matching those for which the applicant had claimed, were submitted to Bonhams for sale in 2016 by the applicant's wife. These were only two examples out of a large number on which the prosecution were entitled to, and did, rely.

Given the weight of the other evidence on counts 1 and 2 and the jury's evidence rejection of the applicant's version of events at trial, we reject the submission that the witness evidence that the applicant wishes to adduce, even if taken at face value, can arguably cast doubt on the safety of the applicant's convictions for counts 1 and 2. In these circumstances, the test for admission of fresh evidence is not met and we refuse the application under ground 1 so far as it relates to evidence about fireplaces.

Turning to the evidence of Sean McGrath, we are satisfied that the reason why no further evidence was given by Sean McGrath at trial was because a tactical decision was taken not to call him as explained by Mr Smith KC, whose account is corroborated by the transcript of the hearing on 5 December 2018. His evidence about the fireplaces does not afford any ground for allowing an appeal for the reasons just given. His evidence about what he believes to have been in his brother’s Conor's mind is inadmissible speculation. It does not and could not reasonably render the appellant's conviction on any count unsafe. The jury heard extensive evidence about the nature of the payments by Balrath Capital to the applicant's wife and evidently rejected the applicant's account. That evidence included, first, that Mrs McGrath gave evidence that she had never worked for Balrath Capital in any capacity, which was accepted by the applicant. Second, Conor McGrath stated that the idea he would pay that much money in advance for work that may never have been done was a "commercially fantastical" idea. Third, none of the money was declared as income to Mrs McGrath's accountants or to HMRC. Fourth, part of the money paid from Balrath was a one-off purchase of a car of the applicant's. Fifth, part of the money was a loan from Conor McGrath to the applicant, part of which was paid back. Sixth, part of the money was Conor McGrath buying a Rolex watch from the applicant which was confirmed in text messages and in evidence.

Quite apart from the inadmissible and hearsay nature of Sean McGrath's proposed evidence about his brother's intentions and the absence of any reasonable explanation as to why such evidence, to the extent that it might be ruled admissible, was not adduced at trial, we reject the submission that the evidence may arguably afford any ground for allowing an appeal against either part or all of his convictions. For these reasons the proposed "fresh" evidence does not satisfy the requirements of section 23. Leave is refused on ground 1.

Grounds 2 and 3 may be taken together. Ground 2 is that the judge erred in refusing to adduce evidence of a bad character of a prosecution witness, Kevin McCarthy. Ground 3 is that Kevin McCarthy's misconduct continued following his convictions and during his contact with the applicant from 2012 to 2015. It is to be noted that ground 2 was originally put forward by trial counsel Tyrone Smith KC and became ground 4 of the applicant's grounds for which leave was refused by the single judge. In our judgment, the single judge was right to refuse leave on the predecessor to count 2 for the reasons he gave, and ground 3 adds nothing.

The applicant continues to assert that almost everyone with whom he came into contact was dishonest and responsible for both the burglary and the fraudulent mortgage application. He now wishes to assert that the guarantee of a loan facility of £7,000 for Mr Florin Alexa (his builder's foreman) was fraudulently completed by someone dishonestly accessing his phone; that Mr Alexa stole nearly £8,000 from him by a Pay Pal credit transfer; and to insinuate that the St Albans mortgage broker who arranged all of his transactions and with whom it is said he was in a relationship at the time, must have acted dishonestly in securing the loans because they were of no advantage to anyone but the professional and building contractors to whom the monies were paid. We note in passing that we were told, and accept, that the Crown made clear that the applicant's relationships were no part of the prosecution case.

The applicant attempted to persuade the jury that he was the victim of a large-scale fraud perpetrated on him by the bank, the bank's employees and building contractors. In the course of the trial he suggested that the fake accounts which had his fingerprint on them were not his responsibility but may have been prepared by or in conjunction with a man called "Steffan". The jury did not believe him. As was said during submissions, the trial was not a dress rehearsal. The jury had ample evidence to justify the rejection of the applicant's case including the inconvenient fact that the fake accounts for 3 years were produced after Ms Measure had asked the applicant to produce 3 years’ finalised accounts and the applicant had said that he would do so. Furthermore, it was the applicant's case at trial that he could not say whether it had been Mr McCarthy whose convictions he wanted to put in or a Mr Stringer who had introduced him to Steffan. In those circumstances, the judge was right to refuse leave to adduce Mr McCarthy's previous convictions.

In his submissions on ground 3 the applicant relies upon the statement of Mr Alexa dated 6 October 2017. An earlier iteration of his submissions had sought permission to rely upon that evidence as fresh evidence. No such application has been made in the January 2025 submissions. No explanation has been given that would justify treating the statement as fresh evidence and it was self-evidently available at the trial. The various bank and similar documents had all preceded the trial. They could have been deployed then had the applicant so wished if there anything in them. No reasonable explanation has been provided for why they were not. Had an application been made we would have refused it. In our judgment, there is no substance in ground 3 that could even arguably undermine the safety of the conviction on count 7 or generally. Grounds 2 and 3 represent no more than an attempt to reargue issues that were properly ventilated at trial. Leave is therefore refused on both grounds.

Ground 4 is that "there is evidence to show that count 6 and 7 were entirely misrepresented” at trial. The evidence is in the form of "home repossession proceedings K000WD201 currently in the Watford County Court". The document upon which the applicant wishes to rely is an amended defence and counterclaim of the applicant who is the first defendant in possession proceedings brought by Lloyds Bank against the applicant and his estranged wife, which the applicant appears to have signed on 4 June 2024. It alleges breach of duty on the part of Lloyds Bank or those for whom the bank are said to be responsible. More generally, he relies upon the assertion that the mortgage taken out from Lloyds in 2013 was redeemed in 2015 and replaced by a larger mortgage. Neither the document nor his assertion about the redeeming of the mortgage in 2015 undermines the safety of his conviction, which was based upon his fraudulent misrepresentations in procuring the 2013 mortgage. We leave out of account the demonstrable fact that, when the bank was concerned that it may be lending on the security of Clarence Road when it was not habitable, the applicant sent the bank photographs of the kitchen at Luton Hoo Garden Bothy (where he was living during the building works to Clarence Road) representing that that was the kitchen at Clarence Road and that it showed that Clarence Road qualified as habitable. Leave is refused on ground 4.

Comparison of handwriting is properly the subject of expert evidence which is not available. There is nothing demonstrable in the absence of such evidence. In addition, the comparison document on which the applicant relies (CACD1-1708) is a previously undisclosed document dated 8 February 2012 that could, if the applicant had wished, been deployed at trial. The applicant's case at trial was that the Southampton reference was genuine and had been filled out and sent by someone at Southampton. He now wishes to assert that it was filled out by the bank and then sent to the hospital. Quite what input the hospital had in this version is unclear. In any event, the applicant's case ignores a significant part of the Crown's case on this document, which was that as he was no longer employed by Southampton General it could not have been properly provided at all. When a reference is supplied by the hospital, a file copy is kept on the employee's HR file. The applicant's file did not contain this document. Further evidence was that the fax number on the top of the document was not that of the HR Department but that of the Oral and Maxillofacial Out-patient Unit. It did not separate out the basic salary and the banding supplement as the banding supplement is likely to change it is always an important factor in mortgage applications and is separated out in this fashion. That was the evidence of the witness Elizabeth Brown.

For these reasons, which essentially adopt those more fully set out at paragraph 78 to 80 of the respondent's latest skeleton and in the first two Respondent's Notices, the comparator document does not qualify for admission as fresh evidence and this ground is no more than an attempt to re-argue the merits of count 6, where the jury had ample evidence on which to convict and did so after hearing the case and evidence that the applicant wished to advance. Leave is refused on ground 5.

Ground 6. This ground is an extension of ground 5, namely that there is evidence about the size of his salary at Southampton Hospital. The applicant seeks to adduce the evidence from various payslips in support of both grounds 5 and 6. None of this is fresh evidence. All could have been available and deployed at trial. There is no explanation why they were not. Accepting that the payslips indicate that the appellant's gross pay was not far from £93,000, and that an email from Natasha Measure dated 19 November 2012 shows that she knew he was now working at the Royal National Orthopaedic Hospital, the basis for count 6 remains that the Southampton reference was forged and was forged by or on behalf of the applicant. There was ample evidence to support that conclusion. The jury heard the applicant's account and did not believe him. That was a course that was properly open to them and is not undermined by the deployment of his payslips. Leave is refused on ground 6.

Ground 7 is that:

Ground 8 is that:

In support of count 6 the prosecution relied at trial upon two letters that were said to come from Conor McGrath’s company Balrath Capital Ltd. The first was described during the trial as "the shorter" or "the short letter". It was dated 15 February 2012 and carried a fax header saying that it was faxed on 16 February 2012. It purported to be signed by Conor McGrath's assistant. By its terms it offered Mrs McGrath the post of medical officer to the company, working three days per week at £500 per day, to start as soon as possible, for a year, extendable if desired. The second letter was also dated February 2012 and also purported to offer the position of medical officer to the company at a rate of £500 for a minimum of 3 days per working week. It was signed by Mr Sean McGrath, Mr Conor McGrath's assistant and Mrs McGrath. In evidence the assistant said she could not say whether the signature was hers or not. It was said that the shorter letter was a fake and misleading and that it had been fraudulently relied upon by the applicant to support inflated projected earnings for Mrs McGrath of £78,000 (3 x 52 x 500). Conor McGrath's evidence was that he had not seen either letter at the time, having first seen them in 2018 shortly before trial. As already mentioned, his evidence was that Balrath could never have sustained such rates of remuneration and certainly could not afford to make substantial advance payments for work not yet carried out. It was this suggestion that he described as "fantastical and financially bizarre". If his assistant had signed the letter she should not have done so. He confirmed there had been discussions between Balrath and Mrs McGrath and there had been an offer made to Mrs McGrath although he continued to maintain that he had not seen either of the Balrath letters that were the subject of count 6. Mrs McGrath's evidence was that the rate of pay was in keeping with what locums earn and there was nothing about the letter that caused her concern.

The applicant now says that it was Conor's evidence that there had never been a contract between Mrs McGrath and Balrath and he wishes to undermine Conor McGrath's evidence by reference to documents which, it is common ground, were not disclosed or deployed at the trial. We have summarised Conor's evidence as it was summed-up to the jury. Turning to the documents on which the applicant wishes to rely, the first (H1) is an unsigned letter dated 3 October 2012. It is in the name of Conor McGrath as CEO of Balrath and is addressed to Mrs McGrath. It states:

The applicant submits that these documents undermine the prosecution’s case against him. We disagree. First, we feel unable to place any weight upon these documents. As we have said, the first document (H1) is unsigned. The second document purports to be signed but it appears that Mrs McGrath disowns what purports to be her signature. Third, there is no information about how or when these documents were created or by whom or for what reason. Mrs McGrath is a doctor and there is no information available to us to indicate that she is or was competent to undertake a consultancy where her duties were industry evaluations and feasibility studies. Fourth, it formed no part of Mrs McGrath's case, or the applicant’s, that she was retained or ever worked pursuant to such a consultancy and it is plain from her social media messages that she denies that the purported invoice for £50,000 was from her. Fifth, these documents formed no part of the prosecution case which in relation to Balrath depended on the submission of the documents J1470 and J2299. It was the submitting of those two documents in support of projected earnings which was said to be fraudulent. Even if the reference to finding H2 to H4 is a reference to Conor finding the documents in folders that he held in relation to the applicant, that does not impinge upon the prosecution’s case that the assertion that Mrs McGrath had real earning potential with Balrath was untrue and fraudulent. As we have already said, Mrs McGrath in fact carried out no work for Balrath in any capacity. Leave is therefore refused on ground 8.

Ground 9 is that:

Where the prosecution rely upon cross-admissibility the judge is required to give a direction to assist the jury in their approach. Where the prosecution does not rely upon cross-admissibility there is no automatic requirement that a cross-admissibility direction be given in addition to the standard direction on separate consideration of separate counts (see R v AHC[2022] EWCA Crim 925 at [28]). The prosecution did not rely upon cross-admissibility in this case and no cross-admissibility direction was given. Is it arguable that the failure to give a cross-admissibility direction renders the applicant's convictions unsafe? In our judgment, it is not.

The judge's written direction to the jury, which is to be found at X15 and following, gave the conventional direction on separate consideration of separate counts. She then set out in relation to each count the evidence that was relied upon by the prosecution to prove the case. The direction was clearly formulated and there was no duplication of the evidence between counts. The clear inference was that when giving separate consideration to each count in turn the jury should have regard only to the evidence upon which the prosecution relied to prove that count under consideration. In our judgment, that was amply sufficient on the facts of this case.