Dickens, R. v

Factual and Procedural Background

This is an appeal from a conviction at the Crown Court. The Respondent convicted the Applicant on two counts of rape on 15 September 2023 before Judge Lowe. The Applicant was sentenced to six years' imprisonment on each count, to run concurrently, on 20 October 2023. Trial counsel (Attorney Hayes) made an initial application for leave to appeal which was refused; the Applicant later instructed new counsel (Attorney Judge). At a rolled-up hearing on 26 March 2026 the Applicant sought (i) leave to amend Grounds of Appeal, (ii) leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, and (iii) a renewed application for leave to appeal against conviction. The Court (Lord Justice Stuart-Smith, Judge O'Farrell and Judge Marks) granted leave to amend, refused the applications to adduce fresh evidence (while relying on some information provided by the Applicant in support), gave leave to appeal and dismissed the appeal.

Material facts (not substantially disputed): the Applicant and the Complainant had met online; they spent an evening together with friends (Witnesses F, S and B); there was unprotected vaginal and anal penetration by the Applicant (counts 1 and 2). The Complainant became upset during and after the sexual activity and reported to the police and attended a Sexual Assault Referral Centre (SARC). The prosecution case was that the Complainant was raped; the Applicant's case was that the sexual activity was consensual.

Legal Issues Presented

1. Whether leave should be granted to amend the Grounds of Appeal.
2. Whether fresh evidence should be admitted under section 23 of the Criminal Appeal Act 1968 (including an expert report and schedules of communications).
3. Whether the Applicant's conviction is unsafe having regard to alleged trial defects, in particular: (a) trial counsel's failure to make a Section 41 application under the Youth Justice and Criminal Evidence Act 1999 to adduce evidence of the Complainant's prior sexual history or reason for distress; (b) alleged failures to secure intermediary assistance and reasonable adjustments for the Applicant's neurodiversity; and (c) alleged issues with medical evidence and late disclosure.
4. Whether the trial was unfair because of cumulative deficiencies in defence representation, judicial questioning and aspects of the summing-up.

Arguments of the Parties

Applicant's Arguments (Attorney Judge)

• Ground 1: Trial counsel failed to apply for a Section 41 ruling and thereby prevented the jury hearing an alternative explanation for the Complainant's distress (that she disclosed prior abuse by an uncle), rendering the defence truncated and the convictions unsafe.
• Ground 2: The Applicant's neurodiversity (diagnoses of autism spectrum disorder, ADHD, dyslexia and dyspraxia) required intermediary assistance and reasonable adjustments; failure to secure these and to inform the jury of the diagnosis deprived the Applicant of effective participation and rendered the trial unfair. Counsel's arrangement for a pupil to sit beside the Applicant was inadequate and counterproductive.
• Ground 3: Key medical evidence (SARC nurse notes, annotated body map and photographs) was served late; no rebuttal expert was instructed; agreed facts and the annotated diagram were prejudicial; the Judge made unsupported remarks in summing up (including about marks being "consistent with being gripped by fingers") which unfairly influenced the jury.
• Fresh evidence: seek admission of (i) communications chronologies, (ii) an expert report of Professor Baron-Cohen regarding neurodiversity, and (iii) a VPS timeline said to challenge the Victim Personal Statement.

Respondent's Arguments (Attorney Nelson)

• Ground 1: The tactical decision not to pursue a Section 41 application was reasonable and forensic; there was a real and immediate risk that advancing the Complainant's alleged prior abuse would rebound to the Applicant's prejudice and the Applicant understood and accepted that advice.
• Ground 2: Although the Applicant has diagnoses, the trial material shows no evidence that he was disadvantaged in fact; the Applicant engaged with the process, gave coherent and appropriate evidence and there was no necessity for an intermediary in the circumstances.
• Ground 3: The SARC contemporaneous notes were disclosed sufficiently early and were reliable forensically; there was no realistic basis for obtaining rebuttal medical evidence; the Judge's remarks did not render the conviction unsafe.
• Fresh evidence: the proposed fresh material either lacked probative force or would not have affected safety of the conviction; Professor Baron-Cohen's report did not identify all sources relied upon and did not show the trial unfair.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Day [2003] EWCA Crim 1060	Standard for appeals alleging incompetent legal representation: need to show representation fell below reasonable professional standard and that this led to trial unfairness/unsafe conviction.	The Court applied this two-stage test in assessing allegations about trial counsel's conduct (Ground 1 and cumulative complaints).
R v Clinton [1993] 1 WLR 1181 (CA)	Decision-making by counsel: tactical choices made in good faith after proper consideration will not, without more, render a conviction unsafe; contrast where decisions are taken without proper instruction or against good sense.	The Court accepted counsel's tactical decision not to pursue Section 41 as reasonable after considering risks, applying the Clinton principle.
Re M (a Child) [2012] EWCA Civ 1905	Court's duty to take steps necessary to ensure a litigant has a fair trial.	Used as authority for the court's duty to ensure fair participation, relevant to intermediary/reasonable adjustments analysis.
R (C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin)	Court's inherent power to direct that a defendant be assisted by an intermediary.	Cited in assessing whether an intermediary should have been appointed for effective participation.
R v Cox [2012] EWCA Crim 549	Principles on intermediary support and fair trial participation.	Relied upon in considering the necessity of an intermediary and appropriate adjustments.
R v Thomas [2020] EWCA Crim 117	Further guidance on intermediary appointment and trial fairness.	Considered alongside other authorities in determining whether absence of intermediary rendered conviction unsafe.
R v Pendleton [2001] UKHL 66	Fresh evidence on appeal: ultimate question remains whether conviction is unsafe.	Applied in assessing admissibility and potential effect of fresh evidence (section 23 Criminal Appeal Act 1968).
R v Pabon [2018] EWCA Crim 420	Guidance on fresh evidence and its bearing on safety of conviction.	Used to frame the approach to applications to adduce fresh evidence on appeal.

Court's Reasoning and Analysis

The Court set out procedural outcomes at the outset: leave to amend granted; applications to adduce fresh evidence refused (some supporting information relied upon); leave to appeal given; appeal dismissed.

Ground 1 (Section 41): the Court examined the defence strategy and contemporaneous records. It accepted that the Trial Judge and others had repeatedly flagged the need for a Section 41 application if the Defence Statement paragraphs explaining the Complainant's distress were to be advanced. The Court reviewed the sidebar note signed by the Applicant recording his agreement not to pursue Section 41 and contemporaneous messages showing the Applicant's understanding. The Court concluded that Attorney Hayes' advice declining a Section 41 application was a reasonable tactical decision because advancing the prior-abuse explanation carried a real and substantial forensic risk that it would rebound and damage the defence. The Court found no convincing evidence that the Applicant failed to understand the advice; accordingly Ground 1 failed.

Ground 2 (Neurodiversity / intermediary / reasonable adjustments): the Court reviewed psychiatric and intermediary reports (Dr Kennedy; court-appointed intermediary report) and the expert report sought to be adduced (Professor Baron-Cohen). The Court applied the Criminal Procedure Rules and authority on intermediary appointments and fair trial participation. It found (i) the intermediary report was not persuasive on the necessity of a conventional intermediary, (ii) the Applicant engaged closely with the case preparation and gave generally coherent, responsive evidence at trial, (iii) three experienced judges had observed the Applicant and found no significant inability to understand the process, and (iv) the unconventional measure of seating a pupil beside the Applicant did not render the trial unfair. The Court accepted that the Trial Judge should have informed the jury of the Applicant's autism before his evidence and in the summing up, but concluded that absence of such direction did not produce a real risk of an unsafe conviction on the material before the Court.

Ground 3 (Medical evidence): the Court analysed the SARC nurse's contemporaneous notes, the A&E record, agreed facts and the annotated head/neck chart. It found the SARC findings were contemporaneous and reliable for forensic purposes; the A&E record's different focus did not undermine the SARC record. The Court accepted that the Judge's comment that some marks "appear consistent with being gripped by fingers" was unsupported by medical evidence and should not have been made, but held that this did not render the convictions unsafe because the central question was when and by whom the marks were made and the available evidence supported that they were not self-inflicted.

Fresh evidence (section 23 applications): the Court applied the statutory factors (capable of belief, may afford ground for allowing the appeal, admissibility at trial, explanation for failure to adduce). It refused leave for (i) the schedules of communications (concluding they demonstrated close engagement rather than confusion and would not affect the safety of conviction), (ii) Professor Baron-Cohen's report (valuable expertise but did not show that the potential difficulties materially manifested at trial), and (iii) the VPS Timeline (no real inconsistency with the Victim Personal Statement and of peripheral relevance). The Court therefore refused the fresh evidence applications.

Cumulative assessment: the Court evaluated whether the matters, singly or cumulatively, rendered the conviction unsafe. Having considered each ground and the aggregate, the Court concluded there was no real risk that the convictions were unsafe. The Court emphasised that this case was essentially one person's account against another's and that credibility difficulties for the Applicant (e.g., claims about condom use, initiation of anal sex, and explanations for neck marks) were matters upon which the jury could properly reach a verdict.

Holding and Implications

APPEAL DISMISSED

Disposition: the Court granted leave to amend the Grounds of Appeal; refused the applications to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 (but relied on some supporting information from the Applicant's materials); granted leave to appeal; and dismissed the appeal on its merits.

Consequences: the Applicant's convictions and concurrent sentences remain upheld. The Court found no sufficient basis to quash the convictions or order a retrial. The opinion does not establish a novel legal principle; it applies existing authorities on counsel competence, intermediary/adjustment duties, admissibility of fresh evidence and Section 41, and does not purport to create new precedent beyond the application of those principles to the facts of this case.