Forhad Alam [2019] EWCA Crim 1510

Fresh evidence was allowed in this appeal by way of mobile phone analysis. At the trial, where the applicant relied on alibi, an expert said that there was no data usage on his mobile phone at the relevant time. The expert was only prepared to accept that this was consistent with a WiFi network being used rather than it was likely that it was.

Following the trial, the defence retrieved the phone and obtained an expert report. This showed that at the relevant time the Snapchat multimedia messaging app on the phone had been in heavy use. The new evidence supported the defence of alibi.

Held: the Court was satisfied as to the credibility and admissibility of the new evidence. The explanation of why it was not adduced at trial was far from perfect, but there was no suggestion it was a tactical decision. It would remain a mystery why the applicant did not tell his representatives that he was using his phone during the relevant period. The identification of the applicant was tainted and not very strong. It would be unjust not to receive the evidence, and the conviction was unsafe and was quashed. As the applicant had served the custodial part of his sentence, a re-trial was not ordered.