How they influenced the decision: The Court treated these cases as establishing a disciplined method: (i) decide admissibility under section 23; then (ii) decide for itself whether the convictions are unsafe, using (but not being confined by) possible jury impact as a “check”. This methodology is central to understanding why the Court could find the convictions involving complainant C unsafe even though she continued to assert non-consent in her later accounts.

3.2 Legal Reasoning

A. Receiving fresh evidence under section 23

The Court stepped through the statutory framework:

• section 23(1): the Court may receive evidence not adduced at trial if necessary or expedient in the interests of justice.
• section 23(2): the Court must have regard “in particular” to capability of belief, whether it may afford a ground of appeal, admissibility at trial, and reasonable explanation for not adducing it earlier.

On the section 23(2) factors, the Court found:

• Admissibility: The evidence would plainly have been admissible at trial as bearing on complainant C’s credibility—identified as “the main issue” on those counts.
• Explanation for absence: The changed account emerged only in 2020–2021.
• Capability of belief: Although mental-health concerns existed, the 2021 caution interview and the complainant’s live evidence were found rational and comprehensible; the evidence was capable of belief.

B. The “unsafe” verdict inquiry

The Court then applied the Barker/Ahmed approach: the essential question is whether the fresh material causes the Court to doubt the safety of the verdicts.

Two features drove the Court’s conclusion on counts 3 and 4:

• (1) Centrality of the impeached details to consent and belief in consent.
  The trial had focused on complainant C’s narrative of physical positioning and active resistance (e.g., the applicant “on top”, her legs straight, pushing thighs down while he tried to lift them). The judge’s summing-up specifically directed the jury to consider these matters on consent and reasonable belief. The prosecution similarly relied on the consistency of her account.
• (2) Deliberate falsity, not mere inconsistency.
  The complainant accepted she had lied to police, friend, and the jury, and that she did so deliberately because she wanted the authorities “to do what [she] thought should be done” and feared she would not be believed if she told the truth (including her position “on top”). She also accepted exaggerating the applicant’s aggression.

The Court acknowledged a crucial nuance: a complainant may be raped regardless of relative physical position; however, in this trial the specific narrative elements were not peripheral—they were framed as key indicators of consent/resistance and credibility. Once those central features were shown (by the complainant’s own admissions) to be deliberate fabrications, the Court concluded the convictions on rape and assault by penetration could not be regarded as safe.

C. Why count 2 survived

The Court distinguished count 2 (complainant B) on orthodox compartmentalisation principles:

• The conviction rested on a separate complainant whose account was consistent.
• Although the jury had been directed on “mutual support” between complainants, the jury’s acquittal on count 5 (complainant A) showed it could discriminate between complainants and was not “overborne” by mutual-support reasoning.
• Accordingly, the fresh evidence about complainant C did not undermine the safety of the finding on complainant B.

D. Extension of time

The Court expressed “misgivings” about delay but granted an extension in the interests of justice, noting the disclosure timeline (May 2022), intervening proceedings, and practical difficulties obtaining historic trial material after the original solicitors ceased operating. The Court’s willingness to extend time underscores that where substantial fresh evidence goes to safety—especially in serious offences—delay may be outweighed by the integrity of the conviction.

3.3 Impact

• Reinforcement of the modern “safety-first” approach.
  The decision operationalises R v Barker [2021] EWCA Crim 603 in a fact-sensitive sexual offences context: once fresh evidence is admitted, the Court’s task is not to speculate about a hypothetical jury, but to decide whether it doubts the safety of the conviction.
• Materiality of “detail” in credibility cases.
  The judgment illustrates that apparently “positional” or “mechanistic” details can be case-determinative where the trial was fought on credibility and where the judge and advocates elevated such details as key indicators of consent/resistance.
• Deliberate fabrication is qualitatively different from ordinary inconsistency.
  The Court treated admissions of intentional deception (to police, third parties, and the jury) as especially corrosive—particularly where the deception was motivated by achieving a desired criminal justice outcome.
• Limits of “mutual support” reasoning.
  The Court’s refusal to unsettle count 2 indicates that fresh evidence undermining one complainant will not automatically contaminate verdicts on other complainants; appellate courts will look to trial dynamics, internal jury discrimination (e.g., mixed verdicts), and the independence/consistency of evidence.

4. Complex Concepts Simplified

• “Fresh evidence” (section 23 Criminal Appeal Act 1968): evidence not heard at trial which the Court of Appeal may admit if it is necessary/expedient in the interests of justice. The Court pays particular attention to whether it is believable, would have been admissible, and why it was not previously adduced.
• “Unsafe” conviction (section 2 Criminal Appeal Act 1968): the statutory test for allowing an appeal against conviction. A conviction may be “unsafe” even if guilt is still possible; the question is whether the appellate court has sufficient doubt about the reliability of the verdict in light of all circumstances (including fresh evidence).
• “Jury impact” as a check, not a rule: the Court may ask what difference the evidence might have made to the jury, but that is only a tool to test the Court’s own conclusion; it is not the legal test.
• “Mutual support” direction: where multiple complainants allege similar wrongdoing, a jury may in some circumstances consider whether one account supports another. The risk is contamination; the safeguard is careful directions and the jury’s ability to assess each count separately.
• ABE interview: “Achieving Best Evidence” interview, a recorded police interview often used in sexual offence cases; it can be played to the jury as the complainant’s evidence-in-chief.

5. Conclusion

Joseph v Rex demonstrates a rigorous application of the post-Barker framework: when fresh evidence reveals that a complainant deliberately fabricated central elements of the trial narrative—particularly on matters explicitly tied to consent and reasonable belief—the Court of Appeal may conclude the resulting sexual offence convictions are unsafe and must be quashed. At the same time, the judgment delineates limits: where a separate complainant’s evidence remains consistent and the jury’s mixed verdicts show count-by-count discrimination, “fresh evidence” undermining one complainant will not necessarily unsettle other convictions.