Fulton, R v Kenneth

A conviction is unsafe where clear post-trial medical evidence casts doubt on expert evidence which the trial judge identified as exceptionally powerful support for the prosecution case. In that circumstance, the conviction must be quashed. A retrial need not be ordered where it is inappropriate and is no longer pursued by the prosecution.

The appellant had been convicted at Teesside Crown Court, by a majority of 10:2, of five counts of indecent assault on a child and sentenced to concurrent terms of three years’ imprisonment. His application for leave to appeal against conviction had previously been refused by the full court.

The Criminal Cases Review Commission referred the case back to the Court of Appeal. The central issue was whether later medical evidence casting doubt on the trial evidence of two doctors made the convictions unsafe. The prosecution had initially contemplated a retrial but no longer sought one.

1. The convictions were quashed. The Court held that clear medical evidence obtained after the trial cast doubt on the views of the two doctors who had given evidence for the prosecution.

2. The trial judge had directed the jury that, if they accepted those doctors’ evidence, it provided exceptionally powerful support for the allegation that the child had been abused in the manner described. Although error in the doctors’ evidence would not itself establish that no abuse occurred, the later doubt undermined evidence presented as a powerful corroborative feature of the prosecution case.

3. In those circumstances, the convictions could not safely stand. The Court therefore quashed them.

4. A retrial was inappropriate. The prosecution no longer pursued it, so no further order was required beyond quashing the convictions.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the Court quashed the convictions: [2007] EWCA Crim 2787.
• Full court: The appellant’s earlier application for leave to appeal against conviction was refused.
• Crown Court at Teesside: The appellant was convicted by a majority of 10:2 of five counts of indecent assault and received concurrent sentences of three years’ imprisonment.