Summary of Opinion — Appellate Decision (Anonymized)

Factual and Procedural Background

The Appellant was convicted in June 2015 at The Court of rape of the Complainant contrary to section 1 of the Sexual Offences Act 2003 and sentenced in July 2015 to 12 years' imprisonment. The Appellant was released on or about 17 June 2021 under the early release provisions; had the conviction remained in place he would have remained on licence until 17 June 2027. The conviction was referred to this court by Company A (the Criminal Cases Review Commission) on the basis of fresh evidence that the Complainant misled the jury about material matters.

Company A concluded there was a real possibility the conviction would be quashed and referred the case. The court gave leave to adduce and admitted the fresh evidence. The fresh evidence consisted of a witness statement dated 14 September 2023 and a video-recorded interview of the Complainant dated 27 September 2023 in which the Complainant admitted to lying or misremembering on a number of points when she gave her earlier evidence.

The fresh material arose in the context of separate proceedings against another accused, referred to in the opinion as Defendant B, whose allegations were based on the same sequence of events. In view of the Complainant's new evidence, the prosecution in Defendant B's case decided it was not appropriate to rely on the Complainant as a witness of truth and discontinued those proceedings; Defendant B was later tried and acquitted in March 2024 after no evidence was offered.

The prosecution disclosed the new statement and video interview to representatives of the Appellant and informed this court (through Attorney Knight) that the prosecution did not oppose the appeal because it could not rely on the Complainant as a witness of truth and accepted the fresh evidence may have impacted the jury's verdict. The court nevertheless emphasized that the decision to quash a conviction rests with the court itself.

There was an earlier appeal by the Appellant dismissed by the full court on 9 February 2017 (reported in an earlier judgment referenced in the opinion). The Appellant had also earlier applied to Company A for a referral after the 2017 appeal; that earlier reference was rejected and became final in February 2021.

Legal Issues Presented

1. Whether the fresh evidence demonstrating that a material prosecution witness gave false or misleading evidence renders the Appellant's conviction unsafe such that it should be quashed.
2. Whether, in light of the Complainant's revised account (admitted lies and altered description of events), the jury's assessment of consent would have been different and therefore whether the guilty verdict is now to be regarded as unsafe.
3. Whether a retrial is appropriate (noting the prosecution's decision and the court's view on the proper remedy where fresh evidence undermines a witness's credibility).

Arguments of the Parties

Prosecution's Arguments

• The prosecution disclosed the Complainant's 14 September 2023 statement and 27 September 2023 video interview to the Appellant's representatives and Company A.
• The prosecution accepted that the Complainant could not be relied upon as a witness of truth in any further proceedings against the Appellant and that the new evidence might have impacted the jury's verdict; accordingly the prosecution did not seek to oppose the appeal.
• The prosecution drew the court's attention to the discontinuance in Defendant B's case as evidence of the significance of the new material.

The opinion does not contain a detailed account of any further, specific submissions made on behalf of the Appellant in these referral proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A (reported as R v Appellant) [2017] EWCA Crim 338	Referenced as the earlier appellate judgment containing factual background and prior appellate reasoning in the same matter.	The court relied on the earlier report as the source of background facts and to note that the previous appeal had been dismissed on different grounds; the court also contrasted the current fresh evidence with the material available at the time of the earlier appeal.
Case C (Dial)	One of a series of authorities identifying the proper approach to fresh evidence appeals where a material prosecution witness is shown to have lied.	Identified as part of the line of authority culminating in the principle applied by the court to assess whether the lie places the appellant's guilt in reasonable doubt.
Case B v The State of Trinidad and Tobago (reported as Dottin) [2005] UKPC 4	Established the approach that, where fresh evidence shows a material prosecution witness has told a lie, the appellate court must decide whether that realistically places the appellant's guilt in reasonable doubt and thus renders the verdict unsafe.	The court cited the passage from the decision (Lord Brown at [42]) as authoritative of the question to be addressed: whether the fresh evidence (lies by a material witness) renders the conviction unsafe when considered with all the evidence.

Court's Reasoning and Analysis

The court set out and applied the established legal approach to fresh evidence appeals where a material prosecution witness has told a lie: the central question is whether the new evidence realistically places the appellant's guilt in reasonable doubt and therefore renders the verdict unsafe.

The court admitted the fresh evidence (the 14 September 2023 witness statement and the 27 September 2023 video-recorded interview) and carefully compared the Complainant's earlier evidence (including her original Achieving Best Evidence interview and her trial testimony) with her later accounts. The court identified multiple and significant changes between the accounts, many of which the Complainant accepted were deliberate lies given to the jury for reasons relating to how she thought she would be perceived.

Key differences identified by the court included:

• The Complainant's later account that there had been a "party atmosphere" at the outset, that she had behaved in a sexually provocative or flirtatious manner, and that she had knowingly and willingly taken drugs and alcohol — whereas at trial she described an atmosphere of threat, coercion and incapacitation;
• Admissions that she had put pornography on the computer and had sat on the Appellant's lap while "grinding" — matters she had denied at trial;
• An admission that she had, contrary to her trial evidence, asked for condoms to be used;
• Admissions about suggesting or arranging for an escort (relating to discussion of procuring another female) and that she had told the Appellant she was a prostitute — matters inconsistent with her trial evidence;
• Other, material changes of detail at the start of the sexual activity which the court considered significant to the issue of consent.

The court found that these discrepancies were not trivial; some were deliberate lies and others were said to be the result of misremembering. The court concluded that the fresh evidence would have created a different picture for the jury about the circumstances in which the sexual activity began and therefore about the critical issue of consent.

Although the Complainant's revised account continued to assert that she was the victim of very serious sexual offending and she did not retract the allegations of offending, the court considered that the changed portrayal of the initial stages of events (and other admitted falsehoods) were material to the jury's assessment of whether the Appellant had been guilty of rape. The prosecution's acceptance that it could not rely on the Complainant and its decision not to oppose the appeal were noted and were of assistance, but the court exercised its independent judgment in determining whether the conviction was unsafe.

Applying the legal test from the line of authority culminating in the decision cited as Case B (Dottin), the court concluded that, on the basis of the fresh evidence, the conviction was unsafe.

Holding and Implications

HOLDING: The conviction is quashed.

Implications and immediate consequences:

• The Appellant's conviction for rape is quashed and these proceedings are concluded.
• There will be no retrial (the court recorded that there was no application for a retrial in the circumstances).
• The anonymity order protecting the identity of the Complainant remains in force; otherwise, there are no further reporting restrictions arising from this judgment.
• The Appellant's licence period arising from the prior conviction will come to an end as a consequence of the quashing of the conviction.
• The court expressed regret at the history of the case, noting the unfortunate consequences for the Appellant of events that only became apparent in September 2023, and acknowledged the appropriate conduct of the prosecution, police and Attorney Knight in disclosing and dealing with the new material.
• No broader legal rule was purposedly established by this decision beyond the established approach to fresh evidence showing a material witness has lied; the court applied settled authority to conclude the conviction was unsafe.

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Judicial author: Judge Edis. Acknowledgements recorded to Attorney Marshall and Attorney Knight for their roles in the proceedings as set out in the opinion.