Marginal Non‑Disclosure and the “Evidential Landscape” in Historic Child Sexual Offence Appeals:
Commentary on R v UDS [2025] EWCA Crim 1540

1. Introduction

This judgment of the Court of Appeal (Criminal Division), delivered by Lord Justice Stuart-Smith on 2 December 2025, concerns a historic child sexual offence conviction in which:

critical contemporaneous child protection records existed in 2002 but were not disclosed to the defence at the 2018 trial;
the Criminal Cases Review Commission (CCRC) referred the case back to the Court of Appeal under section 9 of the Criminal Appeal Act 1995; and
the central trial issue was a pure credibility contest over events alleged to have occurred when the complainant was aged 5–6.

The case raises important questions about:

the prosecution’s disclosure obligations in relation to social services and child protection material;
how undisclosed evidence of a child’s “sexualised behaviour” and prior exposure to sexual activity should be assessed in historic sexual offence appeals; and
what it means, in practice, for new or undisclosed material to “change the evidential landscape” so as to render a conviction unsafe.

Because the offence is a sexual offence, the anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply. The complainant is referred to as “V” and the appellant as “UDS”.

2. Factual and Procedural Background

2.1 Allegations and the 2002 investigation

The allegations relate to events in 2001–2002 when V was 5–6 years old (para 7). It was alleged that:

on three occasions, V performed oral sex on the appellant (Counts 1–3: indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960); and
on a further occasion he masturbated in front of her (Count 4) (paras 2, 7).

In August 2002, V (then aged 6) made allegations which were reported to the police by her father (the appellant’s brother). She was interviewed on video under the then applicable Achieving Best Evidence (ABE) procedures on 5 August 2002 (para 7). The original recording was later destroyed; only a two-page “Index of Interview” – a summary – survived.

That Index shows that V gave a detailed description of:

being in a children’s play tent in the appellant’s bedroom;
being told by the appellant to “suck his willy”; and
ejaculatory fluid coming from his penis, which she described as “yellow” and “wee” (paras 7–8, 18).

The appellant was arrested and interviewed on 7 August 2002. He:

accepted that V, her mother and other children often visited his home and played in his bedroom (including in a play tent);
denied any sexual activity; and
reported that V’s father had previously described V as “sex mad” and reported her mixing with older children and behaving in a sexualised way (para 8).

The play tent was forensically examined; no semen was found (para 8). The CPS decided in October 2002 to take no further action due to lack of forensic and medical evidence (para 9). The matter then lay dormant for over a decade.

2.2 Reopening of the case in 2016–2017

In 2016, V – now an adult – asked police to reconsider the case (para 9). She secretly recorded two conversations with the appellant in January 2016, in which he:

accepted that he had kissed V on the lips and cheek; but
consistently denied any sexual abuse (para 10).

On 5 July 2017, V was interviewed again (ABE). She denied:

having ever seen another person’s penis; and
engaging in sexualised behaviour with a childhood friend (B) before the alleged abuse by the appellant (para 11).

The appellant was re-interviewed on 12 July 2017 and again denied all sexual offences (para 12). Following further review, he was charged on 1 December 2017 (para 12).

2.3 Loss and destruction of early materials

By the time of the renewed investigation:

both V’s mother and the appellant’s mother had died (para 13); and
some 2002 materials had been destroyed after being damaged in storage (para 13).

Nonetheless, several contemporaneous 2002 items survived and were available at trial (para 14), including:

the 2002 ABE Index of Interview;
the full record of the appellant’s 2002 interview (ROTI);
the forensic report showing no semen on the tent; and
certain social services documents (CPU4, CP3, FSU/1 and related material) referring to:
- a strategy meeting on 21 August 2002;
- a 16 September 2002 child protection conference; and
- social services’ concern about V’s father’s reaction and his ability to keep V safe (para 14).

Among the agreed facts at trial were important references to 2002 documents recording that:

V “has witnessed her parents having sex” (Agreed Fact 11; para 19); and
in 2002 the investigating officer assessed V’s evidence as “so tainted that the case will not proceed” (Agreed Facts 14–15; para 19).

2.4 The 2018 trial

The core issue for the jury was whether they were sure that the appellant had committed the alleged acts (para 15). There was no forensic corroboration; the case turned almost entirely on competing accounts and credibility.

Prosecution evidence included (para 16):

V’s 2017 ABE interview;
the 2002 Index of Interview summary;
evidence from V’s father and other family members about what V had said in 2002 and their reactions;
evidence from the investigating officer; and
the 2016 audio recordings of V’s conversations with the appellant.

The defence case rested on the appellant’s denials and on material suggesting:

V’s 2002 account was “tainted” and inconsistent;
forensic and medical tests were negative; and
V had written later to a boyfriend stating that she had “lied, exaggerated, put on fake tears” and that she had limited memory of events (para 17).

The 2002 Index of Interview contained striking material, including (para 18):

V saying she was scared to talk about “what I told dad … sex what happened with my brother … I did it to [the appellant] … I kissed him on the lips before. Dad told me not to only on the head.”
V describing being in the tent where the appellant told her to “suck his willy”; she described the penis and the ejaculation (“a bit of toilet, wee, dropped off his willy”; “yellow” stuff came out).
V saying: “I asked for sex to happen … I asked for sex. He said ‘oh yes’. I sucked his willy. Sucked his thumb and then kiss kiss kiss.”

In cross-examination at trial (para 20):

V denied ever witnessing family members engaging in sexual activity;
she accepted having played sexualised games with B, but said this was after the abuse by the appellant; and
she denied kissing people on the lips before the abuse.

Her father said he did not recall telling V, at around age 6, that she should not kiss people on the lips (para 20).

In closing speeches (paras 21–22):

The prosecution argued that there was no reliable evidence of V displaying sexualised behaviour before abuse by the appellant, and invited the jury to consider how a six-year-old could describe the alleged acts unless they had happened.
The defence argued that V was “a mixed-up kid”; that the allegations could be a construct based on what she had seen or been told; and referred in particular to the agreed fact that V had witnessed her parents having sex, which could have exposed her to male genitalia and sexual activity.

2.5 Sentence and first appeal

On 6 July 2018, the appellant was convicted (by a 10–2 majority) on all four counts (para 2). He received a special custodial sentence under section 236A of the Criminal Justice Act 2003 – a form of extended sentence for certain serious offences – totalling 10 years (9 years’ custodial term plus 1 year extended licence) after an Attorney General’s reference (para 3).

He appealed his conviction, arguing in essence that the destruction of the original 2002 ABE recording and loss of parts of the police file meant a fair trial was impossible (paras 23–24). The Court of Appeal (Fulford LJ, May and Swift JJ) dismissed that appeal on 12 July 2019 (para 4), holding that:

despite the loss of material, the defence had “substantial” material with which to test V’s credibility;
the trial judge had given “impeccable” directions to the jury on the prejudice caused by the lost records; and
the trial remained fair and the conviction safe (paras 24–25).

2.6 CCRC application and reference

In April 2024 the appellant applied to the CCRC (para 26), alleging failure of disclosure in relation to documentation from a child protection conference held on 16 September 2002. He contended that:

these materials would be relevant to whether V had engaged in sexualised behaviour or witnessed sexual activity before the alleged abuse by the appellant; and
they might therefore undermine the prosecution’s central proposition that V’s detailed description of oral sex could only be explained by the abuse having occurred.

The CCRC’s enquiries uncovered:

within the CPS file: the minutes of the 16 September 2002 initial child protection conference and a “Social Work Pro Forma” for that conference – referred to in the case as the “UM10 documentation” because they were (in name, but not in substance) item 10 on the unused material schedule (para 27); and
from South Wales Police (but not in the CPS file): minutes of a 16 December 2002 review child protection conference, three related reports, and a letter from DS Hicks summarising the 16 September 2002 conference (para 28).

The appeal proceeded on the basis – accepted both by the CCRC and the Court of Appeal – that:

the UM10 documentation was in the CPS file and should have been disclosed, but was not, despite defence requests (para 27); and
the additional December 2002 materials were retained by the police but never made available to the CPS, and therefore could not have been disclosed (para 28).

The CCRC concluded that this non-disclosed material could affect the safety of the conviction and referred the case back to the Court of Appeal. The Court expressly accepted that the CCRC had correctly applied its statutory “real possibility” test and that its assessment was “reasonable” (para 33).

3. The Undisclosed Material

3.1 Initial Child Protection Conference – 16 September 2002

The minutes of this multi-disciplinary meeting (para 29) and the accompanying social work pro forma (para 30) recorded, in summary, that:

V’s parents and extended family exhibited “a lack of support and disbelief” in relation to V’s disclosures (para 29(i));
V had slept in her parents’ bedroom since birth, sharing a double bed with her mother while her father slept in a single bed in the same room (para 30(i));
the parents were having sexual intercourse while V was present in the bedroom, believing her to be asleep (paras 29(iii), 30(i));
when asked by her father if she ever saw them having sex, V hid her face, shook her head, and did not answer (para 30(i));
V’s parents regarded the allegations against the appellant as “extremely unlikely” and believed they might instead derive from an incident about two years earlier in which V and her friend B were caught “exploring each other’s genitals” (para 30(ii));
V told the social worker that:
- the appellant made her happy because he bought her presents;
- her friend B made her sad because they touched each other’s “wee wee”, after which her father forbade further contact; and
- a young cousin made her sad by asking to see her “wee wee”, which she only allowed him to see over her pants (para 30(iii));
V’s father kissed V on the lips. When the social worker questioned the appropriateness of this, he decided she was “too old to be kissed on the lips” and said he would in future kiss her on the forehead (para 30(iv));
the social work “risk analysis” noted both the sexual activity in the parents’ bedroom and the incident with B, and suggested that the father’s reaction to the children’s genital exploration was “quite extreme” given that it might be normal childhood exploration (para 30(v)–(vi)).

3.2 Review Child Protection Conference – 16 December 2002

The minutes of this review conference recorded that:

after the decision not to charge the appellant, V gave her father a card saying “sorry” (para 31).

3.3 DS Hicks’ report

A police report from DS Hicks on the 16 September 2002 conference (para 32) recorded that:

V “sleeps in the same bedroom as her parents and appears to have seen them having sex”; and
there had been “revelations regarding V and other children experimenting and touching each other’s genitalia”.

3.4 CCRC’s assessment of the significance

The CCRC (para 34) considered that:

V’s ability, aged six, to give a detailed account of oral sex and ejaculation was central to the trial;
V and her father maintained at trial that she had not witnessed sexual activity within the family and had not been sexually active with B before the appellant’s alleged abuse (para 34(ii));
the undisclosed evidence supported the contrary propositions – namely that V did witness parental intercourse and was engaged in sexualised behaviour with B before the alleged abuse (para 34(iii));
the material corroborated the appellant’s earlier account that V’s father did not initially believe the allegations and partly attributed them to the incident with B (para 34(iv)); and
taken together, the undisclosed material might well affect the safety of the conviction (para 34(v)).

4. Summary of the Court of Appeal’s Decision

The renewed appeal, heard following the CCRC reference, focused solely on the non-disclosure of the child protection materials and their impact on the safety of the conviction.

The appellant argued that:

this was a “pure credibility case” (para 37);
any evidence supporting an alternative explanation for V’s sexual knowledge – or undermining her and her father’s credibility – could have been decisive; and
the undisclosed material provided such support by showing prior sexualised behaviour, exposure to sexual activity, and inconsistency in V’s and her father’s evidence (paras 35–40).

The Crown argued that:

much of the underlying point (that V may have witnessed her parents having sex) was already before the jury, for example via Agreed Fact 11 (para 41–42);
the additional details did not establish a realistic alternative explanation for V’s specific description of oral sex and ejaculation; and
the new material was at best of marginal probative value and could not undermine the overall safety of the conviction (para 42).

The Court of Appeal held that:

while the CCRC had reasonably concluded that the case merited referral, and while the non-disclosure was accepted, the new material did not – either individually or cumulatively – “cast doubt on the safety of the appellant’s conviction” (para 47);
the appeal must therefore be dismissed (para 47).

Central to this conclusion was the Court’s view that:

the defence already had “substantial” material to challenge V’s credibility (para 43, echoing the earlier 2019 judgment);
the trial judge had given exemplary directions on the prejudice caused by missing or destroyed material (para 43);
the jury had heard and apparently believed V under rigorous cross-examination (para 44); and
the new material did not “bridge the gap” between general sexual awareness or childhood exploration and the specific, detailed allegations made by V (paras 40, 44–46).

5. Analysis

5.1 Legal framework: safety of conviction and CCRC references

Although the judgment does not set out the statutory provisions in detail, the legal framework is clear:

Under the Criminal Appeal Act 1968, the Court of Appeal must allow an appeal against conviction if it considers the conviction unsafe.
Under the Criminal Appeal Act 1995, the CCRC may refer a case to the Court of Appeal if there is a “real possibility” that the conviction would not be upheld.

The Court (para 33) expressly:

acknowledges that the CCRC correctly applied its lower “real possibility” threshold; but
emphasises that the ultimate decision on safety is for the Court, applying its own, higher standard.

This case thus implicitly re-affirms the distinction between:

the CCRC’s gatekeeping function; and
the Court’s final determination of safety, which may – as here – uphold a conviction even after a reasonable CCRC reference based on non-disclosure.

5.2 The earlier appellate decision as an internal precedent

Although no external authorities are cited in the text provided, the Court heavily relies on its own earlier decision in the appellant’s first appeal (Fulford LJ, May and Swift JJ) as a kind of internal precedent or baseline.

In that earlier decision, the Court found that:

the defence had “significantly more material to be deployed during cross-examination than is often the case during the trial of sexual allegations of this kind” (para 24); and
the trial judge’s directions on lost material were “impeccable” and preserved fairness (para 25).

This earlier judgment considered the impact of:

destruction of the original 2002 ABE recording;
lost or damaged police records; and
the investigating officer’s view that V’s 2002 evidence was “so tainted that the case will not proceed” (para 19, 24–25).

In the present appeal, Lord Justice Stuart-Smith explicitly situates the new non-disclosure argument “in context” (para 43), taking as a starting point that:

the defence already had ample cross-examination material; and
the Court had already determined that the trial was fair despite missing materials.

Thus, while the earlier decision does not technically create a binding precedent for other cases, it functions as an internal benchmark against which the impact of the newly discovered material must be measured. The Court effectively asks: “Does this new material, over and above the already-considered lost evidence, now make the conviction unsafe?” Its answer is no.

5.3 The nature of the non-disclosure: CPS vs. police failings

The judgment distinguishes two categories of non-disclosed material:

UM10 documentation (within the CPS file) – the 16 September 2002 conference minutes and pro forma, which:
- were listed in name on the unused material schedule; but
- were not in fact supplied to the defence despite requests (para 27).
Additional child protection conference materials (within police records only) – the 16 December 2002 review conference minutes, related reports, and DS Hicks’ letter, which:
- were retained by the police;
- were never supplied to the CPS; and therefore
- could not be disclosed by the prosecutor (para 28).

This distinction is significant for future practice:

It underlines the duty of the CPS to actively review and disclose material on its file that may assist the defence or undermine the prosecution.
It also highlights the importance of effective liaison between police and prosecutors to ensure that third-party materials (such as social services records) actually find their way into the prosecution’s possession and onto the disclosure schedule.

However, for the purpose of the appeal, the Court treats all of this undisclosed material as a single category of new evidence and focuses on its substantive probative value rather than apportioning blame between agencies.

5.4 The Court’s legal reasoning: why the conviction remained safe

5.4.1 Context: a credibility-only case with substantial available material

The appellant’s core submission was that this was a “pure credibility case” (para 37) in which:

the jury had to choose between V’s account and the appellant’s denials;
the majority verdict suggested the issue was finely balanced; and
any extra support for the appellant or extra inconsistency in V’s and her father’s evidence could have tipped the scales.

The Court accepts the importance of context but stresses two points (paras 43–44):

Existing cross-examination tools – The defence already had a range of powerful material:
- the 2002 Index of Interview (showing early contradictions and complexity in V’s account);
- the negative forensic evidence;
- the investigating officer’s 2002 assessment that V’s evidence was “so tainted” that the case would not proceed;
- V’s later letter admitting lying and exaggeration to a boyfriend; and
- Agreed Fact 11, recording that V “has witnessed her parents having sex”.
The Court reiterates the earlier observation that the defence had “significantly more material” than is typical in such cases (para 43).
Quality of the judicial directions – The earlier Court had praised the trial judge’s “impeccable” direction to the jury on the prejudice caused by lost/destroyed evidence. This direction required the jury to take into account the potential disadvantage to the defendant when assessing whether the prosecution had proved its case beyond reasonable doubt (para 25, repeated at para 43).

Building on this, the present Court concludes that the baseline trial was fair; the question is whether the new material, superimposed on that baseline, undermines the safety of the conviction.

5.4.2 The “evidential landscape” and the need to “bridge the gap”

At para 43, the Court explicitly frames the appellant’s case as a contention that the new information “changes the evidential landscape” so that the conviction is now unsafe. This phrasing encapsulates a key principle:

For non-disclosure to render a conviction unsafe, the new material must do more than incrementally assist the defence; it must realistically alter the overall evidential picture facing the jury.

Mr Cotter KC, for the appellant, candidly accepted that the new material did not “bridge the gap” in the sense of showing that V had another experience capable of explaining her detailed description of oral sex and ejaculation (para 40). The highest he could put it was that:

the new material provided “points of consistency and comfort” for the appellant’s account; and
it introduced “inconsistency and discomfort” for V and her father, thereby potentially undermining their credibility (para 40).

The Court accepts this characterisation but holds that such incremental support is insufficient:

It is not enough for the defence to say, “this would have helped us a bit”;
The question is whether, in the context of all the evidence and the trial as conducted, the new material could realistically have led the jury to a different conclusion.

In doctrinal terms, the judgment reinforces an already familiar but sometimes misunderstood principle: not every breach of disclosure, even if serious and regrettable, will render a conviction unsafe; the ultimate test is materiality to the verdict.

5.4.3 Prior exposure to sexual activity: parents’ intercourse in the bedroom

The defence argued that the undisclosed details about V sleeping in her parents’ bedroom, while they had intercourse in her presence, were critical because they:

supported an inference that V had seen sexual activity and male genitalia;
contradicted V’s trial evidence that she had not witnessed her parents doing anything sexual; and
bolstered the argument that her sexual knowledge could have arisen independently of the appellant’s alleged abuse (paras 35(i), 36, 38).

The Court’s response is twofold (para 44):

Much of the point was already before the jury – Agreed Fact 11 stated that V had “witnessed her parents having sex”, and the defence relied on this in its closing speech (para 22, 42). The new material adds detail (e.g. the sleeping arrangements and V’s reaction when questioned) but does not fundamentally change the proposition that V may have been exposed to parental sexual activity.
No evidential basis for a specific alternative explanation – Even with the new material, there remains no basis for asserting that V saw, or could have learned about, oral sex or ejaculation from observing her parents. Counsel still could not (and did not) claim that he could properly put to V that she had acquired the specific knowledge underpinning her complaint from that source (para 44).

The Court is, in its own words, “not remotely persuaded” that the new information about V’s sleeping arrangements “casts doubt on the safety of the appellant’s conviction” (para 44).

5.4.4 Childhood sexual exploration with B

The undisclosed material showed that:

when V was about 4, she and her friend B had been caught “exploring each other’s genitals” (para 30(ii)); and
V herself told the social worker that B made her sad because they touched each other’s “wee wee” (para 30(iii)).

The defence relied on this to argue that:

V had engaged in sexualised behaviour at a very young age, independently of any alleged abuse by the appellant (para 35(ii)); and
this undermined her assertion at trial that such play with B only occurred after the appellant’s abuse (para 36, 39).

The Court, however, takes the view that:

the behaviour in question occurred when V was around 4; and
there is nothing in the material to suggest that such childhood exploration – between two very young children – could explain her detailed description, aged 6, of oral sex and ejaculation by an adult male (para 45).

Accordingly, the Court finds that the new information about B’s involvement does not cast doubt on the safety of the conviction (para 45).

5.4.5 Kissing on the lips: sexualised behaviour or ordinary affection?

The undisclosed material also showed that:

V’s father routinely kissed her on the lips until social workers questioned its appropriateness (para 30(iv));
he then agreed she was “too old” for such kisses and would in future kiss her on the forehead (para 30(iv)).

The defence argued that this:

corroborated the appellant’s account of V being kissed on the lips;
undermined V’s evidence that she had not been kissed on the lips before the abuse (para 20, 37); and
provided another strand of sexualised behaviour within the family environment.

The Court’s response (para 46) is that:

the appellant had always accepted that he kissed V on the lips; and
the fact that her father (and perhaps others) did so too does not materially support an argument that V was sexually experienced or predisposed to fabricate allegations of the seriousness and specificity made in this case.

The Court therefore concludes that this aspect of the non-disclosure also does not affect the safety of the conviction (para 46).

5.4.6 The “sorry” card

The December 2002 conference minutes recorded that V gave her father a card saying “sorry” after she learned no charges would be brought against her uncle (the appellant) (para 31). The appellant contended that this might be read as an apology for making false allegations (para 35(iv)).

Although the judgment does not separately analyse the card in great detail, it is implicitly treated as equivocal:

it might indicate regret for the stress caused, regardless of the truth of the allegations; or
it might, as the appellant suggested, hint at doubt about her own allegations.

Given the absence of direct discussion, it is clear that the Court regarded the card as too ambiguous and insubstantial to impact the overall assessment of safety. It is subsumed into the general conclusion that none of the new material “either singly or in combination” undermines the conviction (para 47).

5.5 Impact and significance

5.5.1 Non-disclosure of child protection records does not automatically render convictions unsafe

This case confirms that non-disclosure of social services and child protection conference material, even if significant and even if discovered via a CCRC investigation, does not automatically render a conviction unsafe. The decisive question remains whether the new material realistically:

undermines the credibility of key witnesses to a degree that might have changed the verdict; or
provides a plausible alternative explanation for the central incriminating evidence (here, the complainant’s sexual knowledge).

Here, the Court acknowledges that:

the material should have been disclosed;
it could have been used to challenge aspects of V’s and her father’s evidence; but
it did not, in the Court’s view, cross the threshold of materiality required to render the conviction unsafe (para 47).

5.5.2 Sexualised behaviour and prior sexual knowledge in child complainants

The judgment is particularly instructive on how courts may approach evidence of a child complainant’s prior sexualised behaviour and exposure to sexual activity in historic child sexual offence cases.

It suggests that:

factors such as:
- seeing parents having intercourse (without more);
- sleeping in the same room as parents who have sex; and
- age-typical genital exploration between young children;
will generally be regarded as low-grade or non-specific in terms of explaining a young child’s ability to describe adult sexual acts in precise detail.

In other words, to materially affect the safety of a conviction, alternative sources of sexual knowledge need to be sufficiently specific, temporally relevant and closely aligned with the alleged acts. General sexual awareness or borderline sexualised behaviour will often be insufficient.

5.5.3 The high threshold for overturning convictions post-CCRC reference

The case also illustrates the high bar for quashing convictions even after a CCRC reference:

The CCRC’s role is to identify a “real possibility” that the Court of Appeal may find a conviction unsafe. That threshold was met here.
The Court of Appeal’s role is to make a final, independent judgment on safety, applying its own higher standard. It concluded that the threshold for quashing the conviction was not met.

This reinforces that:

CCRC reference is not a forecast of success; it signals that the case merits fresh judicial scrutiny, not that it will necessarily result in a quashed conviction.

5.5.4 Practical implications for defence and prosecution

For the prosecution:

The case is a reminder of the need for scrupulous review of all material held by the CPS, particularly social services and child protection records flagged on schedules such as “UM10”.
It highlights the importance of ensuring that police fully supply third-party materials to prosecutors so that they can be properly scheduled and considered for disclosure.

For the defence:

Even without full conference minutes, the defence in this case already had Agreed Fact 11 and other indications that V had witnessed parental sex. The Court notes that defence counsel could have cross-examined V’s father on this but chose not to (para 44).
The case underscores the strategic importance of exploiting what is known at trial, while also rigorously pursuing disclosure where documents are signposted but not produced.

6. Complex Concepts and Terms Explained

6.1 Achieving Best Evidence (ABE) interview

An ABE interview is a video-recorded interview conducted with vulnerable or intimidated witnesses (often children), designed to comply with Home Office guidance on obtaining reliable evidence in a manner suitable for use in court. In this case:

V was interviewed under ABE procedures in 2002 (the recording was later destroyed) and again in 2017 (para 7, 16(i)).
The 2002 ABE was known only through the “Index of Interview” summary, which became an important trial document (paras 7, 18).

6.2 Special custodial sentence under section 236A Criminal Justice Act 2003

A special custodial sentence for certain offenders of particular concern (section 236A of the Criminal Justice Act 2003) involves:

a custodial term of imprisonment; and
an additional “extended” period on licence, during which the offender is subject to supervision and may be recalled to prison.

The appellant ultimately received a total of 10 years under this provision (9 years’ custody plus 1 year extended licence) for Counts 1–3, with 2 years concurrent on Count 4 (paras 2–3).

6.3 Attorney General’s reference under section 36 Criminal Justice Act 1988

Under section 36 of the Criminal Justice Act 1988, the Attorney General may refer a sentence to the Court of Appeal if it appears to be unduly lenient. Here:

the Attorney General referred the original 8-year sentence (7 years’ custody + 1 year licence);
the Court of Appeal substituted a longer sentence of 10 years (9 + 1) (para 3).

6.4 Abuse of process applications

An application to stay proceedings as an abuse of process asks the court to halt a prosecution on the basis that trying the defendant would be unfair or would undermine the integrity of the criminal justice system – for example, because of extreme delay or loss of critical evidence.

In this case, the appellant twice applied to stay the trial as an abuse of process due to:

the destruction of the 2002 ABE recording; and
loss of parts of the police file (para 23).

Both applications were refused by the trial judge; the first appeal then tested, and upheld, the fairness of that decision.

6.5 “Tainted” evidence

The investigating officer recorded in 2002 that V’s evidence was “so tainted that the case will not proceed” (Agreed Fact 15; para 19). “Tainted” in this context generally refers to concerns that:

a child’s account may have been influenced by others;
there may have been repeated questioning or suggestive interviewing; or
the reliability of the child’s memory or narrative has been compromised.

By the time of trial, the officer could not recall precisely why she had used that term (para 19). The existence of this assessment, however, gave the defence a significant line of attack on V’s credibility.

6.6 The Criminal Cases Review Commission (CCRC) and references under section 9 Criminal Appeal Act 1995

The CCRC is an independent body tasked with investigating potential miscarriages of justice. It may refer a conviction back to the Court of Appeal if it considers there is a “real possibility” that the conviction would not be upheld.

In this case (paras 26–28, 33):

the CCRC investigated the appellant’s complaint of non-disclosure;
it obtained new child protection documentation;
it concluded that the case met the statutory test for referral; and
the Court accepted that this conclusion was reasonable, but ultimately upheld the conviction.

6.7 The “evidential landscape”

The phrase “evidential landscape” is used by the Court (para 43) to describe the totality of the evidence before the jury. When new evidence or undisclosed material emerges, the question is whether that new material changes the evidential landscape in a way that:

significantly weakens the prosecution case; or
materially strengthens the defence case;

such that the conviction can no longer be considered safe.

In R v UDS, the Court concludes that the new child protection records, while relevant, do not so alter the evidential landscape as to undermine the verdict.

7. Conclusion

R v UDS [2025] EWCA Crim 1540 is a careful and nuanced decision at the intersection of:

historic child sexual offending;
non-disclosure of social services and child protection records; and
the CCRC’s role in uncovering and presenting new material long after trial.

Its key lessons can be summarised as follows:

Non-disclosure alone is not enough – Even serious failings in disclosure will not automatically render a conviction unsafe; what matters is the effect of the new material on the overall evidential picture.
The “evidential landscape” test – The Court emphasises that new material must significantly change the evidential landscape, not merely offer incremental support, to justify quashing a conviction.
Child’s prior sexual knowledge must be specifically probative – Evidence that a child has witnessed adult sexual activity or engaged in age-typical exploration with other children is not, without more, a sufficient alternative explanation for a detailed account of oral sex and ejaculation.
Robust trial directions and existing defence material matter – Where the defence already has substantial material to challenge credibility, and the judge gives exemplary directions on missing evidence and delay, the bar for showing resulting unfairness is high.
CCRC’s gatekeeping role vs. Court’s final judgment – The case illustrates that a reasonable CCRC decision to refer does not predetermine the outcome; the Court may still conclude that, even with the newly uncovered evidence, the conviction remains safe.

In the broader legal context, the judgment refines – rather than radically alters – established principles on disclosure and appeals based on new evidence. Its particular contribution lies in its careful calibration of how evidence of a complainant’s sexualised behaviour and exposure to sexual activity is to be weighed in assessing the safety of historic child sexual offence convictions.

Marginal Non‑Disclosure and the “Evidential Landscape” in Historic Child Sexual Offence Appeals: Commentary on R v UDS [2025] EWCA Crim 1540