Anwar, R. v

Where fresh evidence materially affects the credibility of a complainant whose account was central to a conviction, the conviction cannot be treated as safe merely because the evidence is consistent with post-traumatic stress disorder. If the evidence is also capable of another explanation, its significance and the complainant’s truthfulness are matters for a jury to assess after hearing the relevant psychiatric and factual evidence.

Having received fresh evidence under section 23 of the Criminal Appeals Act 1968, the appellate court must allow the appeal if the verdict is unsafe.

The appellant was convicted at Luton Crown Court of rape and sentenced to eight years’ imprisonment. His defence at trial was that the complainant had consented to sexual intercourse.

On his conviction appeal, the court received an agreed bundle containing evidence of later incidents involving the complainant and letters in which she said that her trial account had been false and that the intercourse had been consensual. The Crown relied on psychiatric reports diagnosing post-traumatic stress disorder and contended that the later conduct was consistent with that condition.

The central issue was whether the fresh material rendered the conviction unsafe.

1. Appeal allowed. The court received the fresh evidence under section 23 of the Criminal Appeals Act 1968. The evidence was capable of substantially affecting the complainant’s credibility. It included later allegations of rape followed, in some instances, by assertions of consent, and letters recanting the allegation in this case.

2. The court treated the evidential approach stated in R v RT and MA [2002] 1 WLR 635 as relevant to whether earlier statements could properly be put to a complainant. The court also considered R v E [2004] EWCA 1313, concerning allegations made after a conviction.

3. The psychiatric evidence did not preserve the safety of the conviction. The complainant’s subsequent conduct might be consistent with post-traumatic stress disorder, but it was not shown to be consistent only with that condition. Whether that conduct supported the complainant’s truthfulness, or instead damaged her credibility, was for a jury to decide after hearing the psychiatric evidence and the complainant’s evidence.

4. The verdict could therefore not be regarded as safe. The court quashed the conviction and ordered a retrial on the single count. A fresh indictment was to be preferred and the appellant rearraigned within two months at a court designated by the Presiding Judge of the South Eastern Circuit.

• Court of Appeal (Criminal Division): Allowed the conviction appeal, quashed the conviction and ordered a retrial: [2007] EWCA Crim 3226.
• Luton Crown Court: On 21 October 2005, convicted the appellant of rape and sentenced him to eight years’ imprisonment.