Pepperell, R. v

Fresh evidence should be admitted under Criminal Appeal Act 1968 where the statutory considerations are met. The appellate court must then decide whether the evidence, if heard at trial, might reasonably have affected the jury’s decision.

Mutual support between complainants depends upon the independence of their accounts. Where credible fresh evidence raises a realistic possibility of direct or indirect contamination, it may render convictions unsafe. Whether to order a retrial remains a public-interest decision. Seriousness must be balanced against delay, the defendant’s health and age, the practical fairness of a further trial, and future risk.

The appellant was convicted at Cardiff Crown Court of five counts of indecent assault and three counts of inciting a child to commit an act of gross indecency. The allegations concerned two complainants and historic events. The prosecution relied in part on the potential for their accounts to support each other.

On appeal, the appellant sought leave to adduce fresh evidence from Anna Marie Thomas. Her evidence was capable of showing that one complainant had discussed her allegations with the other and had encouraged her to report a similar allegation. The central issues were whether the evidence should be received, whether it made the convictions unsafe, and whether a retrial would be in the public interest.

1. Appeal allowed. The court received Ms Thomas’s fresh evidence, held that the convictions were unsafe, and made no order for a retrial.
2. Under section 23(2) of the Criminal Appeal Act 1968, the evidence was capable of belief. There was a reasonable explanation for its absence at trial: it was disclosed to the appellant at the end of, or immediately after, the trial and his solicitor acted promptly. The remaining statutory requirements were also met.
3. The fact that two people had made sexual-abuse allegations was important at trial because their evidence could potentially support each other. The jury had been directed in terms similar to those approved in R v Crawford [2008] EWCA Crim 1863. Such support depended on the jury being sure that neither account had been directly or indirectly contaminated.
4. The fresh evidence raised a possibility that one complainant had spoken about her allegations and encouraged the other to support her by reporting a similar allegation. Had the jury heard it, contamination would have required careful consideration and a tailored direction.
5. Applying R v Pendleton [2002] 1WLR 72, the court held that the evidence might reasonably have affected the jury’s decision. The historic nature of the allegations, the appellant’s resulting difficulty in answering them, the death of a potentially relevant witness, and evidence from his adult children formed the necessary context. The convictions were therefore unsafe.
6. A retrial was not in the public interest. Although the allegations were serious, the appellant’s age, severe ill health, limited life expectancy, the further delay and consequent forensic disadvantage, and the absence of a realistic future risk outweighed the case for a further trial.

• Court of Appeal (Criminal Division): in [2009] EWCA Crim 1327, allowed the appeal against conviction after admitting fresh evidence, found the convictions unsafe, and made no order for a retrial.
• Crown Court at Cardiff: the appellant was convicted on 10 December 2008 of five counts of indecent assault and three counts of inciting a child to commit an act of gross indecency. He was sentenced on 29 January 2009 to five years’ imprisonment.