This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Learn how appellate courts in England and Wales handle new evidence on appeal, including the legal tests for admitting fresh evidence in criminal and civil cases, procedural requirements, time limits and practical guidance for presenting evidence that may affect the safety or correctness of judgments.
When a case has been decided in a lower court - whether in criminal or civil proceedings - it may be possible to bring new evidence before an appellate court. Appellate courts generally review legal decisions rather than re‑try facts. However, under specific legal tests and statutory provisions, they can consider fresh or additional evidence that was not presented at the original trial if it meets strict criteria. This article explains how appellate courts in England and Wales handle new evidence, the legal framework involved, procedural requirements, time limits, and common questions for readers with and without legal backgrounds.
1. Why New Evidence Matters on Appeal
Appellate courts are established to ensure justice and correct mistakes made at trial. Normally, appeals focus on legal errors, procedural mistakes or challenges to how the law was applied. In both criminal and civil cases, appellate judges are not tasked with re‑hearing all evidence or acting as a second jury. However, the legal system recognises that new evidence - information that was not available, or could not reasonably have been obtained at the time of trial - may meaningfully affect the safety or correctness of a decision.
Considerations of new evidence help prevent wrongful convictions or unjust civil outcomes where later discovered information casts doubt on the original decision.
2. The Legal Basis for Considering New Evidence in Criminal Appeals
In criminal appeals, the key provision is section 23 of the Criminal Appeal Act 1968. This statutory rule empowers the Court of Appeal (Criminal Division) to receive evidence that was not adduced at trial, but only where the court thinks it is “necessary or expedient in the interests of justice”.
When deciding whether to admit new evidence, the court must have regard in particular to:
- whether the evidence appears capable of belief;
- whether it may provide a basis for allowing the appeal;
- whether it would have been admissible at the original trial on an issue that is the subject of the appeal; and
- whether there is a reasonable explanation for not adducing it at trial.
The Court of Appeal has considerable judicial discretion, but it applies these factors to balance two competing principles: preserving finality in criminal trials and recognising that justice may require considering genuinely fresh material that could affect the correctness of the conviction.
3. What Counts as “New or Fresh Evidence”?
New evidence is evidence that:
- was not presented at the original trial;
- could not reasonably have been obtained with reasonable diligence beforehand; and
- could have influenced the outcome if admitted at trial.
These principles are reflected in longstanding case law on fresh evidence in appeals and apply similar concepts in civil contexts. For example, the Ladd v Marshall criteria in civil appeals require that new evidence would probably have had an important influence on the result and is credible, and that it could not have been obtained with reasonable diligence for use in the original proceedings.
New evidence may take various forms, including:
- additional scientific or forensic data (e.g., DNA or expert reports);
- previously unavailable witness statements;
- documents not discovered before trial; or
- new legal or factual material that casts doubt on the reasoning of the initial judgment.
However, courts are cautious. They generally will not admit new evidence if it merely supplements matters that were available originally but not used, or if it could have been raised at trial by exercising reasonable diligence.
4. Procedure for Admitting New Evidence on Appeal
a. Application and Permission
Before the Court of Appeal will consider new evidence, an appellant must usually:
- seek permission (leave) to appeal if required;
- file detailed supporting material demonstrating the nature of the new evidence, why it was not presented at trial and why it matters.
In criminal appeals, permission to rely on new evidence is part of the broader appeal process under the Criminal Appeal Act 1968. In civil appeals to the Court of Appeal (Civil Division), permission is also necessary to adduce fresh evidence; the court will assess whether the new evidence meets the relevant criteria and whether its inclusion would be fair in light of procedural rules.
b. Written Evidence and Witness Attendance
If new evidence is admitted, the appellate court frequently first examines written statements. If the evidence is credible and potentially material to the appeal, the court may require that the witnesses attend the hearing to give oral evidence. This ensures fairness and allows cross‑examination, particularly in criminal cases where fresh evidence could affect the safety of the verdict.
c. Balancing Finality and Justice
Appellate courts avoid re‑trying every case with new material because that undermines the finality of litigation. The criteria for fresh evidence therefore require a reasonable explanation for the failure to present it earlier. Mere oversight or tactical decisions in trial are not usually sufficient.
5. New Evidence and Miscarriages of Justice
In criminal law, where new evidence has significant implications for innocence or guilt, the Criminal Cases Review Commission (CCRC) may become involved when ordinary appeal routes are exhausted. The CCRC is an independent statutory body established under the Criminal Appeal Act 1995 and can refer cases back to the Court of Appeal if it considers there is a real possibility that the conviction would not be upheld in light of new evidence or argument. This power provides an additional mechanism for handling evidence that emerges after appeals have been decided.
The CCRC plays a key role in identifying potential miscarriages of justice grounded in evidence unavailable or overlooked during trial and appeal stages, and its referrals often involve substantial or groundbreaking material that could affect verdicts or sentences.
6. Time Limits and Practical Considerations
Strict time limits apply to lodging appeals and seeking permission to present new evidence. In criminal appeals, a notice of appeal generally must be lodged within 28 days of conviction or sentencing unless leave to extend time is obtained. Courts expect timely, reasoned applications for the inclusion of fresh evidence as part of the appeal process.
Practical considerations include:
- comprehensive preparation of the evidence and explanation for its lateness;
- explaining why it could not have been obtained earlier with reasonable diligence;
- demonstrating its potential to affect the outcome or safety of the conviction.
Failure to satisfy these elements usually results in the court refusing to admit the new evidence. Appellate courts are mindful that permitting new evidence too freely could encourage litigation designed to circumvent trial procedures.
7. Common Questions About New Evidence on Appeal
Q: Can new evidence be admitted if it was available at trial but not used?
Generally no. Fresh evidence must not have been obtainable with reasonable diligence at the time of trial. Evidence merely overlooked is unlikely to meet the criteria.
Q: Does new evidence guarantee a successful appeal?
No. Even if admitted, the appellate court must decide whether the new evidence, alongside the trial record, demonstrates legal or factual grounds that undermine the safety or correctness of the decision.
Q: Can new expert opinions be introduced at appeal?
Yes, but they still must satisfy statutory criteria, including credible believability and justification for non‑presentation at trial. Appellate courts apply strict scrutiny to expert evidence to avoid undermining the original process.
Summary
Appellate courts in England and Wales can consider new evidence under well‑defined legal criteria designed to balance finality with fairness. In criminal cases, section 23 of the Criminal Appeal Act 1968 provides express authority for courts to receive fresh evidence that might affect the safety of a conviction, provided it was previously unavailable, credible, admissible, and explained. Civil appeals apply analogous principles, notably the Ladd v Marshall tests. An independent body - the Criminal Cases Review Commission (CCRC) - can also refer cases involving new evidence back to appeal courts where appropriate. Successfully handling new evidence on appeal requires careful preparation, persuasive explanation, and strict compliance with procedural rules.
