Williams-Rigby & Anor, R v

On an appeal relying on fresh evidence, the question under section 23(2) of the Criminal Appeal Act 1968 is whether the conviction is safe, not whether the accused is guilty. A useful check is whether the evidence, if heard at trial, might reasonably have affected the jury’s decision.

A conviction may also be unsafe through the cumulative effect of prejudicial material and an unjustified inhibition of the defence. A properly directed jury may use independently made, essentially similar allegations as mutual support, but must decide each count separately.

The appeals arose from Operation Care, an investigation into historic sexual-abuse allegations at a residential community home near Liverpool.

Williams-Rigby was convicted at Liverpool Crown Court in 1999 of offences against four former residents. On appeal, the court received fresh evidence from two former residents who shared a dormitory with two accepted complainants.

Lawson was convicted at Liverpool Crown Court in 2000 of 17 counts of indecent assault. His appeal raised, among other matters, the use of a document identifying other staff under investigation, the threatened use of Williams-Rigby’s convictions under section 74 of the Police and Criminal Evidence Act 1984, and fresh evidence concerning one complainant.

1. Both appeals were allowed. In Williams-Rigby’s case, the fresh evidence was capable of belief, would have been admissible at trial, and there was a reasonable explanation for its earlier absence. It directly undermined the evidence of BS and MO, and MO’s evidence may have supported the jury’s assessment of ML and WM. All remaining convictions were therefore unsafe.

2. The court applied the safety approach stated in R v Pendleton [2002] 1 Cr App R 441. The appellate issue was the safety of the convictions, rather than guilt. The court was satisfied that the fresh evidence might reasonably have affected the trial jury’s decision.

3. In Lawson’s case, the challenge to the good-character direction failed. The direction made the relevance and importance of good character clear. The court also held that the similar-fact direction concerning essentially similar allegations made during night walks was properly available, although the acquittals on the other counts meant that the point did not determine the appeal.

4. However, the conviction on count 29 could no longer be regarded as safe if the fresh evidence concerning that complainant were accepted. More importantly, the naming of numerous other staff in the Scene 22 material may have distorted the trial. The threatened use of Williams-Rigby’s convictions also inhibited Lawson’s defence, despite serious reservations about the relevance and fairness of admitting them under section 74 of the Police and Criminal Evidence Act 1984. Those matters, cumulatively, rendered the convictions unsafe.

5. The Crown stated that it would not seek retrials if the appeals succeeded.

• Court of Appeal (Criminal Division) — In the jointly heard appeals, the court allowed both appeals and held the convictions unsafe: [2003] EWCA Crim 693.
• Liverpool Crown Court — Williams-Rigby was convicted in August 1999 and sentenced to 12 years’ imprisonment. A prior appeal reduced the sentence to 10 years and quashed two time-barred convictions. Lawson was convicted in May and June 2000 of 17 counts of indecent assault and sentenced to seven years’ imprisonment.