Solomon, R v

Under section 23 of the Criminal Appeal Act 1968, the absence of a reasonable explanation for not adducing evidence at trial does not prevent its admission on appeal. The court may admit it where justice requires, but deliberate tactical withholding will ordinarily make admission exceptional.

Exceptional circumstances may arise where later-discovered evidence plainly shows that convictions materially overstate the offences committed, the offender has served the resulting sentences, and admission is needed to correct an inaccurate criminal record. A fundamentally different case may likewise be advanced on appeal only exceptionally.

R v Solomon was a reference by the Criminal Cases Review Commission concerning convictions in 1993 for two rapes, indecent assault, buggery and attempted buggery. The appellant had previously failed in an application for leave to appeal.

A later police search found a video recording of the incident. The Crown accepted that it showed consensual sexual activity with both complainants, although it also showed indecent assaults. The appellant sought to rely on that recording as fresh evidence and to advance a case inconsistent with the case run at trial, where he had asserted that no sexual activity occurred.

The issues were whether the recording should be admitted under section 23 of the Criminal Appeal Act 1968, notwithstanding its deliberate tactical suppression, and whether the appellant could change his case on appeal.

1. Appeal allowed in part. The court admitted the video recording, permitted the appellant to advance his new case, quashed the convictions for rape, buggery and attempted buggery, and substituted one conviction for indecent assault in respect of each complainant. Concurrent sentences of two years’ imprisonment were imposed for those substituted offences.

2. Section 23(1) of the Criminal Appeal Act 1968 gives a discretion to receive fresh evidence where necessary or expedient in the interests of justice. The court must have regard to the matters in section 23(2), including whether there is a reasonable explanation for failing to adduce it at trial. The recording was capable of belief, could afford grounds for allowing the appeal, and would have been admissible on the relevant issue.

3. There was no reasonable explanation for the failure to produce the recording at trial. The appellant had deliberately withheld it for tactical reasons while advancing a false case that no sexual activity had occurred. Fresh evidence deliberately withheld in that way will be admitted only in quite exceptional circumstances.

4. Those circumstances nevertheless existed. The recording had been found independently by the police and used in a later prosecution. It plainly showed that the appellant had been wrongly convicted of the more serious sexual offences, for which he had served substantially heavier sentences. Admission was necessary to correct a criminal record that would otherwise inaccurately represent his offending and future risk.

5. The same exceptional circumstances justified allowing the appellant to change his case on appeal. The recording established consent to the sexual activity and showed vaginal penetration rather than buggery, while also disclosing indecent assaults.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal in part, admitted fresh evidence, quashed four convictions and substituted two convictions for indecent assault: [2007] EWCA Crim 2633.

• Court of Appeal (Criminal Division): The appellant’s renewed application for leave to appeal against conviction was dismissed on 6 April 1995.

• Central Criminal Court: On 12 January 1993, the appellant was convicted of two counts of rape, one count of indecent assault, buggery and attempted buggery.