Bryan v R.

A conviction is unsafe where credible fresh evidence establishes the truth of the accused’s central account and destroys an essential factual premise of the prosecution case. Where the prosecution case depended on an alleged rape by a stranger, evidence proving that the complainant and accused had previously met was capable of undermining the verdict fundamentally.

The court also stressed that a detailed defence statement under the Criminal Procedure and Investigations Act 1996 assists both sides by directing necessary investigation and disclosure applications. In a Criminal Cases Review Commission reference, the prosecution must address agreed fresh evidence urgently and realistically.

The appellant was convicted of rape at the Inner London Crown Court and sentenced to six years’ detention in a young offender institution. His account was that he had met the complainant before their consensual sexual intercourse and had given her the telephone number of his friend, Ricardo Johnson.

At trial, the prosecution case was that the complainant had been raped by a stranger. The jury heard that a number stored under the name Omar had been found on her telephone, but there was no independent evidence that it was Johnson’s number or that the complainant’s father had called it.

After an earlier refusal of leave to appeal, recorded at [2007] EWCA Crim 63, the Criminal Cases Review Commission obtained fresh evidence. Johnson confirmed that the complainant’s father had called his telephone seeking Omar. School records and further evidence also raised questions about the complainant’s account of attending school on the day concerned. The central issue was whether that new evidence rendered the conviction unsafe.

1. Appeal allowed. The court quashed the rape conviction and ordered the appellant’s immediate release. The uncontested fresh evidence established that the complainant’s father had called Ricardo Johnson’s telephone, which had been stored in the complainant’s telephone under the name Omar.

2. That evidence admitted of no rational explanation other than that the appellant and complainant had met and that he had supplied the number. It therefore strongly corroborated the account the appellant had given from his second police interview. It destroyed the sensible basis for the prosecution contention that they had been strangers and that the appellant’s account was untrue.

3. The judge’s trial directions had repeatedly identified the appellant’s account as unsupported. Had the jury known that Johnson’s evidence corroborated the appellant, the directions and the assessment of the competing accounts would necessarily have been different. The earlier Court of Appeal would likewise have had no basis to speculate about how the appellant might have learned of the father’s call.

4. The school evidence was a further material matter. The complainant accepted that she had been absent from school for a substantial part of the day, contrary to the picture presented at trial. The court did not need to resolve every issue concerning the accuracy of the register or collusion. The telephone evidence alone was sufficient, and the fresh evidence separately or cumulatively made the verdict unsafe.

5. In additional observations, the court stressed the practical value of a detailed defence statement under Criminal Procedure and Investigations Act 1996, including its role in prompting investigation and applications for specific disclosure. It also stated that, on a Criminal Cases Review Commission reference, the prosecution must respond promptly and assess agreed fresh evidence with urgency.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the conviction and ordered the appellant’s immediate release: [2009] EWCA Crim 2291.
• Criminal Cases Review Commission — referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995 after obtaining fresh evidence.
• Court of Appeal (Criminal Division) — refused leave to appeal against conviction on 17 January 2007: [2007] EWCA Crim 63.
• Inner London Crown Court — convicted the appellant of rape and imposed six years’ detention in a young offender institution.