The Court of Appeal ("CoA") partially allowed an appeal, quashing two convictions for serious sexual offences by a then young offender due to fresh evidence that a complainant deliberately provided a false account at trial. A conviction for sexual assault relating to a separate complainant was upheld.
Details
Trial and Sentencing
A young person (the "Applicant"), aged 17 at the time of the offences, was convicted in December 2014 of three offences involving three complainants aged between 14 and 16: sexual assault of complainant B (count 2), assault by penetration of complainant C (count 3), and rape of complainant C (count 4). The Applicant was sentenced to a total of six years' detention, comprising concurrent terms of six months for count 2, three years for count 3, and six years for count 4.
The prosecution case in respect of counts 3 and 4 was that on 21 May 2014, the Applicant took complainant C, then aged 15, to his mother's house where he penetrated her vagina with his fingers and then penis without consent, or a reasonable belief in consent. Complainant C gave a detailed account in interview describing the Applicant getting on top of her, holding her down, and using force to position her while she resisted and repeatedly told him to stop. In respect of count 2, the Applicant was found to have touched complainant B's leg without consent in a sexual manner.
Court of Appeal Decision
In March 2024, the Applicant applied for an extension of time of approximately nine years and three months to appeal against conviction and to admit fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968.
The fresh evidence arose from complainant C contacting the police in December 2020 stating that she had "lied in court" and made the incident "sound much worse than what it was". In police interview in March 2021, complainant C admitted she lied about the Applicant getting on top of her, and stated that rather she got on top of the Applicant, having felt pressured to do so. She also admitted to having exaggerated the level of aggression shown by the Applicant.
The CoA, applying R v Barker and R v Ahmed, confirmed that the primary question was whether the fresh evidence caused it to doubt the safety of the verdict, rather than what effect the evidence would have had on the jury. The CoA found that the positions of the Applicant and complainant C were "of central importance" to the issues of credibility and consent, and concluded that the convictions on counts 3 (assault by penetration) and 4 (rape) were unsafe and quashed them accordingly. The prosecution did not seek a retrial.
However, the conviction on count 2 was upheld, as it related to a separate complainant whose account had been consistent, and whose evidence the jury was able to assess independently.
The CoA granted the necessary extension of time to allow the appeal, despite "some misgivings", on the basis that the Applicant was not informed of complainant C's changed account until May 2022, and then had to find new solicitors due to the closure of his original solicitors' firm.
Commentary
This decision provides several lessons for youth justice practitioners. Firstly, the case starkly illustrates the long-term consequences of wrongful convictions for children. The Applicant was 17 at the time of offending, and received a substantial six-year custodial sentence. The convictions for the most serious offences were not quashed until 11 years later, during which time the Applicant served his sentence and had to live with the consequences of convictions.
Secondly, the case stresses the importance of robust scrutiny of complainant evidence, even where the complainant is a child, their account appears internally consistent and the case concerns serious sexual offences. The CoA was careful to acknowledge these sensitives but nevertheless concluded that the deliberate falsehoods told by complainant C rendered the convictions unsafe.
Thirdly, practitioners advising former youth defendants should note that the CoA was willing to grant a very substantial extension of time to an allow an appeal on the basis of fresh evidence where there was a reasonable explanation for the delay (in this case, the late disclosure of complainant C's changed account to the Applicant and practical difficulties instructing new solicitors).
Finally, the CoA's decision to uphold the conviction on count 2 is a reminder that evidence undermining one complainant's credibility will not necessarily undermine convictions based on the evidence of other complainants. The rules on cross-admissibility and contamination between counts can be complex, and youth justice practitioners should ensure that they carefully explain these principles to their clients in multi-complainant cases.