Gilder, R. v

Factual and Procedural Background

1. The Plaintiff waived anonymity so that he could speak publicly about the impact of sexual offending; consequently statutory reporting restrictions did not apply.

2. On 10 November 2023, at The Court before Judge Shaw and a jury, the Applicant (then aged 40) was convicted of two counts of rape (section 1, Sexual Offences Act 2003) and one count of assault by penetration (section 2, Sexual Offences Act 2003), all offences alleged to have been committed against the Plaintiff. On 27 February 2024 the Applicant was sentenced to eight years' imprisonment on each count, to run concurrently.

3. Shortly before sentencing, Judge Shaw received an anonymous note purporting to be from a juror alleging that a named Juror was Facebook friends with the Plaintiff. The note was referred to the Registrar who informed counsel.

4. The Applicant filed an appeal out of time and sought an extension of time and, if granted, leave to appeal against conviction. The original grounds included lack of an intermediary and the alleged jury irregularity arising from the anonymous note. The Registrar referred the matter to the full court because of the jury irregularity ground.

5. On 16 January 2025 the applications came before Judge Edis sitting with Judge Lavender and Judge Leonard, who directed the Criminal Cases Review Commission ("the Commission") to investigate the alleged jury irregularity under section 23A of the Criminal Appeal Act 1968, refused leave on the remaining ground and adjourned the applications pending the Commission's investigation.

6. The Commission interviewed all jurors, conducted more detailed interviews with the named Juror and the Plaintiff, and reported finding no evidence of juror irregularity: no juror admitted sending the note or recalled relevant undisclosed information; the named Juror and the Plaintiff each denied any connection; the Juror's Facebook account was dormant since 2015 and did not list the Plaintiff as a friend. The Commission's report and statements were disclosed to the Applicant with permission from Judge Edis.

7. By a skeleton argument filed 13 October 2025 the Applicant (now unrepresented by his original counsel) challenged the adequacy of the Commission's investigation and, on 3 December 2025, lodged an application to vary his grounds of appeal to add four fresh grounds a week before the hearing.

Legal Issues Presented

1. Whether the Applicant should be granted an extension of time and leave to appeal against conviction.
2. Whether the alleged juror irregularity (the anonymous note and alleged Facebook connection) occurred and, if so, whether it renders the convictions unsafe.
3. Whether the Applicant should be permitted to vary his grounds of appeal shortly before the hearing to rely on four fresh grounds.
4. Whether the proposed fresh evidence meets the statutory tests for reception of fresh evidence on appeal under section 23 of the Criminal Appeal Act 1968.
5. Whether the Applicant can successfully argue that interview evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984.
6. Whether alleged investigative failures in 2004 or alleged unfair trial conduct by the trial judge give rise to an arguable appeal.

Arguments of the Parties

Applicant's Arguments

• The Commission's investigation was defective and failed to disprove the alleged Facebook connection because it did not perform a historical forensic examination of Facebook data, did not analyze mutual connections, did not record several juror interviews, contained a note-taking error and showed a predisposition to regard a Facebook screenshot as fabricated.
• The Applicant sought to vary grounds to add four fresh grounds: (a) fresh evidence undermining the Plaintiff's credibility; (b) the trial judge should have excluded the Applicant's police interview under section 78 PACE; (c) material errors in the 2004 police investigation; and (d) unfair judicial intervention and an unbalanced summing-up.
• The Applicant relied on statements from family and from his Partner, and on social media material and other investigations conducted since trial, to support the fresh grounds.

Prosecution's Arguments

• The Commission acted appropriately and found no juror irregularity; disclosure of its report was permitted.
• Much of the proposed fresh evidence would not have been admissible at trial without further legal argument (notably allegations concerning tax and sexual behaviour requiring reliance on statutory gateways such as section 100 Criminal Justice Act 2003 and sections 41(3) or (5) Youth Justice and Criminal Evidence Act 1999).
• The Applicant's delay in seeking to vary grounds a week before the hearing prejudiced the prosecution's ability to respond and prevented the court from seeking observations from trial counsel; no good reason was advanced for the delay.
• The trial judge's directions and summing-up were balanced; no arguable appeal arises from them.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in stages.

1. Juror irregularity: The court reviewed the Commission's investigation, which interviewed all 11 jurors and conducted detailed interviews with the named Juror and the Plaintiff. The Commission found no admission of sending the note, no recollection by jurors of undisclosed relevant information, and no evidence of a Facebook connection. The Juror's account was dormant since 2015 and did not list the Plaintiff as a friend; the Plaintiff confirmed he had checked his account. The court concluded the Commission acted appropriately and that no juror irregularity had been established.
2. Variation and fresh grounds: The court noted the Applicant sought to abandon original grounds and to rely on four entirely fresh grounds a week before the hearing. The court reminded itself of the high hurdle for fresh grounds per R v James and Criminal Practice Directions 2023 para 10.4.5, considering delay, reasons for delay, what former lawyers knew, and the interests of justice.
3. Fresh evidence (section 23 Criminal Appeal Act 1968): The court applied the statutory considerations—whether evidence appears capable of belief, may afford a ground for allowing the appeal, would have been admissible at trial, and whether there is a reasonable explanation for failure to adduce it at trial. The court examined the proposed statements from family and the Partner and concluded family witnesses' evidence about house layout had been open at trial and no explanation was given for not calling it then. Much of the Partner's material consisted of matters known before June 2025 or matters that would face admissibility hurdles.
4. Admissibility concerns: The court agreed with the prosecution that certain suggested evidence (alleged tax matters; evidence of sexual behaviour) would not have been admissible at trial without satisfying statutory gateways (section 100 Criminal Justice Act 2003; sections 41(3) or (5) Youth Justice and Criminal Evidence Act 1999).
5. Section 78 PACE ground: The court noted the Applicant's mental health was known at trial, no challenge to the interview was made then, and neither the admission of the interview nor counsel's failure to challenge it had been advanced earlier when fresh counsel reviewed the case. The court emphasized that a breach of the code does not automatically render evidence inadmissible; the s78 touchstone is fairness. There had been no opportunity to obtain waiver and trial counsel's observations as required by McCook.
6. Delay and prejudice: The court found no good reason for the late wholesale change of grounds, that the delay prejudiced the prosecution's ability to respond and prevented obtaining trial counsel's observations, and that most matters were known before the late application.
7. Merits: Even assessing the merits on the material before it, the court considered the fresh grounds did not give rise to an arguable appeal against conviction. The court found the trial judge's directions and summing-up balanced and detected no unfairness.

Holding and Implications

Final Ruling: The court refused permission to rely upon the fresh grounds and refused the applications for an extension of time and for leave to appeal against conviction.

Implications: The direct effect is that the Applicant's attempt to vary grounds and to bring an out-of-time appeal is rejected and the convictions and sentence stand. The court found no merit in the jury irregularity ground and did not set any novel legal precedent; it applied established statutory tests and authority (including R v James and R v McCook) to refuse the late fresh grounds.