Warren, R v

Fresh evidence which exposes relevant non-disclosed material and materially undermines the credibility of a complainant central to the prosecution case may render a conviction unsafe if the jury might well have reached a different verdict. Questions about a complainant’s previous fabricated allegation of sexual assault concern the truth of her statements, rather than her past sexual behaviour. They therefore fall outside the restrictions in section 41 of the Youth Justice and Criminal Evidence Act 1999.

The appellant was convicted at Bristol Crown Court of rape and sentenced to four years’ imprisonment. He was acquitted of related charges of threats to kill and attempted grievous bodily harm. An earlier application for leave to appeal, based on alleged inconsistency in the verdicts, was refused on paper and not renewed.

The Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995, to be treated as an appeal under section 1 of the Criminal Appeal Act 1968. Its investigation revealed undisclosed material concerning prior allegations made by the complainant, including evidence of a retracted and admitted false allegation. The central issue was whether that fresh evidence, admissible under section 23 of the Criminal Appeal Act 1968, made the rape conviction unsafe.

1. Appeal allowed; conviction quashed. The fresh evidence met the requirements of section 23 of the Criminal Appeal Act 1968 and was admitted. The Crown did not resist the appeal and did not seek a retrial.

2. The prosecution case turned fundamentally on the complainant’s credibility. The new material showed that she had made and later withdrawn an earlier allegation of assault, and that she had made a detailed allegation of an aggravated burglary which the police treated as fabricated after the alleged assailant had a valid alibi. There was also material concerning her employment tribunal complaint, although that was of limited significance when viewed alone.

3. The prosecution had failed to disclose relevant and important material. In particular, the defence had not been given the complainant’s admission that the earlier allegation had been fabricated, or material explaining that the police record of the incident as “no crime” meant that no offence had occurred.

4. Had the false allegation formed part of the trial material, cross-examination upon it could and would have been permitted. Applying R v T & H [2001] EWCA Crim 1877, the Court held that questions about prior fabrication of allegations of sexual assault are questions about statements, not questions about past sexual behaviour restricted by section 41 of the Youth Justice and Criminal Evidence Act 1999.

5. Viewed cumulatively, the fresh evidence could have materially undermined the complainant’s credibility. The jury might well have reached a different verdict. The conviction was therefore unsafe. A defence costs order was made for the period before legal aid was granted.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, treated as an appeal under section 1 of the Criminal Appeal Act 1968, the Court allowed the appeal and quashed the conviction.

• Crown Court at Bristol: On 30 January 2003, the appellant was convicted of rape by a 10:2 majority and sentenced to four years’ imprisonment. He was acquitted of the related charges of threats to kill and attempted grievous bodily harm.

• Earlier appeal process: An application for leave to appeal against conviction, based on alleged inconsistency of verdicts, was refused on paper and was not renewed.