Cash, R v

Fresh evidence of a defendant’s severe intellectual disability may render a conviction unsafe where it materially affects the jury’s assessment of knowledge, intention, vulnerability to influence and the significance of lies. Under the Criminal Appeal Act 1968, such evidence may be admitted where the statutory conditions are met, including a reasonable explanation for its absence at trial. A retrial need not be ordered after an unsafe conviction is quashed where the interests of justice, including time already served, the defendant’s vulnerability and likely sentencing consequences, do not require it.

The appellant was convicted on retrial at Southwark Crown Court, by a 10:2 majority, of rape and kidnapping. He had received concurrent sentences of seven years’ imprisonment.

After he had begun serving his sentence, psychological and psychiatric assessments disclosed a severe intellectual disability, with a full-scale IQ of 53. The evidence indicated that his disability had not been recognised by the police, his legal advisers or the court. It also suggested that he was vulnerable to suggestion by his co-defendant and could repeat a false account without appreciating its implications.

With leave of the single judge, the appellant sought to adduce that evidence and contended that its absence had deprived the jury of material relevant to his knowledge, intention, credibility and ability to advance a defence that attributed control of events to the co-defendant. The central issues were whether the fresh evidence should be received, whether the convictions were safe, and whether a retrial should be ordered.

1. Appeal allowed. The court received the fresh psychological and psychiatric evidence. It accepted that the conditions in section 23(2) of the Criminal Appeal Act 1968 were satisfied. The evidence was capable of belief, could afford a ground for allowing the appeal, would have been admissible at trial, and there was a reasonable explanation for the failure to adduce it earlier.

2. The evidence was material to both charges. On the rape count, the prosecution had to establish that the appellant knowingly assisted or encouraged the rape. His severe intellectual disability could have affected the jury’s assessment of whether he understood his co-defendant’s intentions, deliberately facilitated the rape, or merely acted under the co-defendant’s influence.

3. The evidence also bore on the appellant’s account and on the significance of any lies. Although he could give a coherent account and repeat it consistently, the expert evidence indicated that he could have learned and repeated a false story supplied by a dominant co-defendant. A properly informed defence would likely have explored the co-defendant’s control over events and the appellant’s lack of independent appreciation. The jury might then have treated lies as an attempt to protect the co-defendant rather than as proof of the appellant’s guilt.

4. The kidnapping case was stronger because the appellant was said to have helped restrain the complainant. Nevertheless, on a differently conducted defence, the jury might have concluded that he did not knowingly participate in kidnapping but responded to a passenger’s dangerous interference with his driving without proper appreciation of the circumstances.

5. The shared ignorance of the appellant’s true mental deficit rendered both convictions unsafe. A retrial was not in the interests of justice. The appellant had already spent nearly four years in custody, any further sentence would likely be substantially reduced, and imprisonment had been unsuitable for a person whose condition might instead have justified a hospital order. No retrial was ordered.

• Court of Appeal (Criminal Division): Allowed the appeal against convictions for rape and kidnapping, holding them unsafe after admitting fresh evidence of severe intellectual disability. No retrial was ordered.
• Southwark Crown Court: On retrial before Pearlman HHJ, convicted the appellant by a 10:2 majority verdict of rape and kidnapping and imposed concurrent seven-year sentences.