Blackwell, R v

A conviction is unsafe where admissible fresh evidence materially undermines the reliability of the central prosecution witness and raises a realistic alternative explanation for the alleged offence. This is especially so where the trial proceeded on an uncontested assumption that an assault occurred and the only live issue was identification. The appellate court must assess the new evidence with the trial material as a whole. If that assessment creates serious doubt about whether any assault occurred, the conviction cannot stand.

The appellant was convicted at Northampton Crown Court in 1999 of indecent assault. The prosecution case treated the assault as undisputed, and the trial issue was whether the complainant had correctly identified the appellant as her attacker.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, fresh evidence became available. It concerned the complainant’s subsequent similar allegations, evidence suggesting that some were false and that injuries might have been self-inflicted, and material bearing on her credibility.

The Crown did not oppose the appeal on the fresh-evidence ground. A separate non-disclosure ground and further grounds were not pursued or determined.

1. Appeal allowed; conviction quashed. The court concluded that the conviction was unsafe.

2. The trial had proceeded on the basis that the complainant had undoubtedly suffered a serious assault. Her evidence was nevertheless indispensable: without it there was no case, and identification was the only issue presented to the jury.

3. The fresh material was admissible and had to be considered with the trial evidence as a whole. It included later allegations with striking similarities to the allegation in this case, police conclusions that some later allegations were false, and evidence capable of supporting self-infliction of injuries. It also included material bearing on the complainant’s truthfulness and reliability.

4. That material raised serious doubt not merely about identification, but about the trial’s unchallenged premise that an assault had occurred. It provided a substantial basis for the alternative conclusion that no assault occurred and that the injuries were self-inflicted. The conviction was therefore unsafe.

5. The court did not determine the separate complaint of non-disclosure because allowing the appeal on the fresh-evidence ground made that unnecessary. The additional grounds were not pursued.

Further observation

The court observed that section 1(2) of the Sexual Offences (Amendment) Act 1992 continued to protect the complainant’s anonymity. The appellate power in section 3(4) did not apply, and no other relevant power was available to lift the restriction for the benefit of a person against whom the complainant might make similar allegations in future. The Crown indicated that the relevant information would be recorded for future police investigations.

The appellant was also to be reimbursed from central funds for the additional costs of pursuing the proper appeal.

• Court of Appeal (Criminal Division): By judgment dated 12 September 2006, [2006] EWCA Crim 2185, the court allowed the appeal following a Criminal Cases Review Commission reference and quashed the conviction.

• Court of Appeal: On 22 March 2001, the full court increased the appellant’s sentence from three to five years’ imprisonment and refused his renewed application for leave to appeal against conviction. The grounds now relied on were not then advanced.

• Crown Court at Northampton: On 7 October 1999, the appellant was convicted by a majority verdict of indecent assault and sentenced to three years’ imprisonment.