Frost-Smith & Ors, R v

A conviction founded substantially on a complainant’s identification evidence may be unsafe where significant post-trial allegations materially alter the available assessment of that complainant’s credibility. The question is whether the new material would have given the defence a substantial opportunity to test reliability, confabulation, mistake or motive, and whether its availability may have changed the course of the trial or the jury’s verdicts.

That conclusion may apply to all jointly tried defendants where the new material concerns the principal complainant’s credibility generally and the court cannot safely identify which allegations would still have produced guilty verdicts.

The appellants were convicted at Maidstone Crown Court before HHJ Simpson and a jury on 10 July 1996 of sexual offences against two young girls. The medical evidence established that both girls had suffered prolonged sexual abuse. The principal issue at trial was whether the individual defendants had participated in it.

Following the convictions, the principal complainant made extensive further allegations against numerous additional persons and described further incidents, including allegations inconsistent with aspects of her earlier accounts. The Criminal Cases Review Commission referred Bond’s conviction. Frost-Smith and Cook were subsequently granted leave to appeal because the new material bore on the complainant’s credibility in respect of all defendants.

The central question was whether the post-trial material rendered the convictions unsafe.

1. The appeals were allowed. The court set aside the guilty verdicts against all three appellants. It declined to order a retrial because of the lengthy periods of imprisonment already served.

2. There was no dispute that the two girls had been seriously and repeatedly abused. Nor was there criticism of the trial judge’s summing-up. The decisive issue was whether the appellants had been correctly identified as participants in the abuse.

3. The extensive post-trial interview materially changed the evidential position. It introduced allegations against many further identified people, described additional incidents, and transformed the alleged role of the complainant’s mother from a person who disbelieved complaints into an active participant or witness. It also created substantial inconsistencies with the earlier accounts, particularly concerning abuse at Huntley Avenue.

4. Those matters would have afforded the defence a significant opportunity to cross-examine on reliability, confabulation, mistake and the identification of alleged abusers. The material was not adequately answered by the fact that the jury had heard an allegation that numerous unnamed men had been involved in one incident. Before trial, the complainant had said that she had disclosed all her complaints; the later allegations were therefore capable of changing both the conduct and outcome of the trial.

5. The point was acute for Cook, who had not featured in the first interview and was named after an upsetting encounter in a shop. Bond and Cook might have benefited from their relatively peripheral alleged involvement. Although the court hesitated over Frost-Smith because of his position in the household and the allegations made against him from the outset, it could not safely determine which, if any, of the charged incidents would still have resulted in convictions had the new material been available.

• Court of Appeal (Criminal Division): In [2003] EWCA Crim 3435, allowed the appeals, quashed the appellants’ convictions, and made no order for retrial.

• Maidstone Crown Court: On 10 July 1996, HHJ Simpson and a jury convicted the appellants of sexual offences against the two complainants.

• Criminal Cases Review Commission: Referred Bond’s conviction after considering that the complainant’s later allegations might cast doubt on the safety of the conviction. Frost-Smith and Cook later obtained leave to appeal on the same credibility issue.