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Fresh expert evidence may be received in the interests of justice, but the decisive question remains whether, in its light, the conviction is unsafe. A revised scientific understanding may expose an earlier expert conclusion as too confident. It does not make a conviction unsafe unless it undermines the evidential basis on which the verdict rested.

A defendant is entitled to a fair opportunity to obtain expert evidence. That entitlement does not permit an appeal to become a second trial because a later expert might express a more favourable view.

The appellant was convicted at Chelmsford Crown Court of ten counts of rape and six counts of indecent assault upon his stepdaughter, and received ten years’ imprisonment with an extended licence period of five years.

At trial, agreed paediatric evidence was that physical findings showed repeated penetration. On appeal, fresh expert evidence and later medical guidance challenged the certainty of that conclusion, particularly in relation to pubertal development. The appellant also relied on material suggesting that the complainant’s brother had accessed child pornography.

The central issue was whether the fresh medical evidence, and the other material, rendered the convictions unsafe.

Decision

1. Leave to appeal was granted, but the appeal was dismissed. The court admitted and accepted Dr Stimmler’s fresh evidence, yet held that it did not undermine the safety of the convictions.

2. Under Criminal Appeal Act 1968, section 23, the court may receive fresh evidence where justice requires it. The ultimate question is whether the convictions are unsafe in the light of that evidence. The court applied the approach stated in Dial and another and the State of Trinidad and Tobago [2005] UKPC 4 and R v Hakala [2002] EWCA Crim. 730.

3. The new evidence showed that the trial experts’ conclusion had been too dogmatic. The medical evidence should have been expressed as consistent with repeated rape, rather than as demonstrating it. However, the evidence remained consistent with the complainant’s account. It did not undermine her credibility or the jury’s assessment of her evidence. The court therefore held that the revised medical view did not affect the verdict’s safety.

4. The court reaffirmed that scientific evidence may require caution because research can change. It applied the guidance in R v Harris [2006] 1 Cr.App.R 5 and R v Cannings [2004] 2 Cr.App.R 7. Fresh evidence may justify appellate intervention, including where it could have been obtained at trial, but only where it strikes at the fundamental basis of the conviction.

5. The appellant had a fair opportunity to obtain expert evidence, as required by European Convention on Human Rights, article 6. That right did not entitle him to discard the evidence of his own expert and seek a more favourable expert opinion on appeal. The court relied on R v Pendleton [2002] 1 WLR 72 in stressing that an appeal is not a second trial.

6. The undisclosed material about the complainant’s brother did not affect the safety of the verdict. It did not rationally support an inference that he had committed the offences, and its deployment could have led to disclosure of the appellant’s previous conviction.

1. Court of Appeal (Criminal Division) Granted leave to appeal and dismissed the appeal against conviction.

2. Chelmsford Crown Court Convicted the appellant on 3 December 2004 of ten counts of rape and six counts of indecent assault, and imposed ten years’ imprisonment with a five-year extended licence period.