C, R v

A conviction is unsafe where newly available medical evidence fundamentally contradicts the evidential basis on which the prosecution put the case and shows that the defendant had no opportunity to commit the alleged offence. Where the full evidence would have made conviction impossible, the appeal must be allowed.

The prosecution’s disclosure duty is engaged when it obtains material from a confidential third-party file for review. Failure to identify and disclose material capable of assisting the defence is a serious breach.

The appellant had been convicted at St Albans Crown Court in 1994 of raping his daughter and sentenced to ten years’ imprisonment. His earlier appeal against conviction had been dismissed.

The prosecution had relied on medical evidence suggesting that penetration occurred in May or June 1990, when the appellant still had access to the complainant. Following a reference by the Criminal Cases Review Commission, further medical material disclosed an examination in January 1991 showing a normal prepubertal vagina. The central issue was whether that evidence rendered the conviction unsafe.

1. Appeal allowed. The conviction was unsafe. The newly disclosed January 1991 examination was critical evidence. It showed that the injury found in 1993, on which the prosecution case had depended, must have occurred after January 1991.
2. That conclusion destroyed the prosecution case as presented at trial. The appellant had separated from the family in June 1990 and thereafter had no unsupervised contact with the complainant. It was common ground that he had no opportunity to commit an offence after January 1991. Had the full medical evidence been before the jury, no jury could properly have convicted.
3. The court regarded the non-disclosure as serious. The defence had reasonably sought access to the local-authority file, and the prosecution had undertaken to review it for material requiring disclosure. The relevant document was apparently on that file but was not disclosed. The court also expressed concern that the doctors who gave evidence did not reveal the intervening examination.
4. The court would invite the Director of Public Prosecutions to consider measures to prevent repetition, to provide any possible explanation to the appellant, and to consider whether action concerning those involved was appropriate. The court apologised to the appellant for his wrongful conviction.

• Court of Appeal (Criminal Division): Following a Criminal Cases Review Commission reference, allowed the appeal and held the conviction unsafe: [2003] EWCA Crim 1246.
• Earlier appeal: The appellant’s original appeal against conviction was dismissed; no citation is stated in the judgment.
• Crown Court at St Albans: Convicted the appellant of rape on 10 August 1994 and imposed a ten-year sentence.