Larkin, R. v

Under section 23 of the Criminal Appeal Act 1968, fresh evidence should not be admitted where there is no reasonable explanation for failing to adduce it at trial and it could not provide a ground for allowing the appeal.

A possible inconsistency on a peripheral matter will not render a conviction unsafe if it does not shed light on the real issue at trial. A complaint that a summing-up inadequately presented the defence will fail where, read as a whole, the jury had the defendant’s consistent account in an interview transcript and the judge addressed the additional material points.

The appellant was convicted at a retrial in the Liverpool Crown Court of two counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003. The jury returned majority verdicts of guilty after the first trial had failed to reach verdicts.

He appealed on the basis that the judge had prevented cross-examination of the complainant on a school Pupil Log. He also renewed an application to adduce fresh evidence concerning his alleged attendance at a cadet camp, and sought to add a ground alleging that the summing-up had not fairly summarised his evidence.

The central issues were whether the excluded Pupil Log or proposed fresh evidence could affect the safety of the convictions, and whether the summing-up fairly put the defence case before the jury.

1. Appeal dismissed. The first ground was abandoned after the court refused an adjournment to obtain a transcript of the complainant’s retrial evidence. The two renewed applications for leave to appeal were refused.
2. The Pupil Log concerned the complainant’s behaviour at school on 21 April. The court held that, even if her retrial evidence had been inconsistent with the log, that inconsistency would not assist on the real issue: whether the appellant had sexual intercourse with her on the relevant mornings. Defence counsel had also been permitted to cross-examine her about whether her behaviour that day differed from normal. There was therefore no sensible basis for an adjournment or for pursuing that ground.
3. On the proposed fresh evidence, the court applied section 23 of the Criminal Appeal Act 1968. There was no reasonable explanation for failing to obtain evidence of the dates of the appellant’s cadet camps at either trial. More importantly, evidence that he had not attended the earlier camp would not establish that he had not given the complainant a lift home, and the alleged conversation in the car was only of limited relevance to the charged conduct. The evidence could not afford a ground for allowing the appeal.
4. The proposed challenge to the summing-up had no prospect of success. Although the judge’s factual summary was concise and devoted more time to the complainant’s evidence, the jury had the appellant’s interview transcript, which was consistent with his trial evidence. The judge directed them to it and separately referred to the two matters said not to appear in the interview. The defence case had therefore been sufficiently put.

1. Court of Appeal (Criminal Division) — in [2010] EWCA Crim 2850, dismissed the conviction appeal and refused the renewed applications for leave to appeal.
2. Liverpool Crown Court — the first trial resulted in no verdict. At the retrial, the appellant was convicted by majority verdicts of two counts of sexual activity with a child and sentenced to concurrent terms of five years’ imprisonment.