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On an appeal based on fresh evidence, the Court of Appeal must decide whether the convictions remain safe. It must not decide guilt as a primary fact-finder. Credible fresh evidence which the trial jury did not hear may make a conviction unsafe where it could reasonably have led to a different verdict. The inquiry is fact-specific, so comparisons with factually different appeals are ordinarily unhelpful. Applying section 23 of the Criminal Appeal Act 1968, the court admitted new medical evidence. It quashed the convictions because the jury had been invited to treat the medical evidence as establishing sexual abuse, whereas the fresh evidence showed that the relevant findings were neutral or non-specific.

The appellant was convicted at Chelmsford Crown Court on 29 September 1997 of anal rape and three indecent assaults on M, then aged nine. The prosecution medical evidence was presented as supporting the conclusion that M had been sexually abused, and the judge placed considerable emphasis on it in the summing-up.

Following a reference by the Criminal Cases Review Commission, the appellant relied on fresh, unchallenged medical evidence. It showed that the genital findings previously treated as suggestive of abuse were normal or non-specific, while the anal fissures could have resulted from either penetration or constipation. A previous appeal had been unsuccessful, but its grounds were irrelevant. The central issues were whether the fresh evidence should be admitted under section 23 of the Criminal Appeal Act 1968 and whether the convictions remained safe.

1. Appeal allowed. The court admitted the fresh medical evidence under section 23 of the Criminal Appeal Act 1968 and quashed all four convictions.

2. Following Pendleton [2001] UKHL 626, the court’s task was not to decide whether the appellant was guilty. It had to determine whether the convictions were safe. The test was necessarily fact-specific.

3. The fresh evidence was credible and could not have been adduced at trial because medical knowledge had materially developed. The prosecution accepted that the findings concerning the hymen and labia were neutral. Dr Rouse also accepted that his present conclusion differed radically from his trial opinion. The anal fissures remained capable of either an innocent or a sexual explanation.

4. The Crown could not isolate the anal evidence from the other findings. At trial, the doctors, the prosecution and the judge had invited the jury to treat the medical evidence cumulatively as establishing sexual abuse. The judge therefore suggested that the real issue was who had committed the abuse. If the medical findings were in truth neutral or non-specific, that approach was fundamentally invalidated.

5. Although the complainant’s account had features capable of supporting it, and the jury had seen the principal witnesses, the medical evidence had been presented as practically decisive in establishing abuse. Applying the approach in Bain [2007] UKPC 33, the fresh evidence might reasonably have led the jury to a different verdict. The court was therefore unable to regard the convictions as safe.

• Court of Appeal (Criminal Division) — On a reference by the Criminal Cases Review Commission, the court allowed the appeal and quashed the convictions: [2010] EWCA Crim 1379.
• Court of Appeal (Criminal Division) — An earlier appeal was unsuccessful; the judgment states that its grounds were not relevant to this appeal.
• Chelmsford Crown Court — On 29 September 1997, the appellant was convicted of anal rape and three indecent assaults.