Rose v R. (Rev 1)

Fresh evidence advanced on an appeal against sentence must be assessed for credibility, its capacity to provide a ground of appeal, and compliance with section 23 of the Criminal Appeal Act 1968. Where a factual basis was determined at a Newton hearing, the evidence provides a ground only if it creates a sensible possibility that the evidence accepted at that hearing was false. The appellate court must then decide whether the acceptable evidence undermines the safety of the finding. If it does not, the appeal must be dismissed. If it does, the Court of Appeal must determine the issues arising from the basis of plea itself, because it has no power to remit the matter for a further Newton hearing.

The appellant had pleaded guilty to rape of a child contrary to section 5(1) of the Sexual Offences Act 2003. A Newton hearing determined that the complainant had not consented and that the appellant had possessed a knife. He was sentenced to 30 months’ detention.

On an out-of-time appeal against sentence, the appellant relied on alleged fresh evidence. The complainant had made apparent admissions to his former solicitor that her earlier evidence was false. The prosecution contended that those admissions were made to placate the appellant and were themselves untrue. The Court received evidence from the appellant, his sister, his former solicitor, the complainant and her friend. The central issue was whether the fresh evidence created a sensible possibility that the evidence accepted at the Newton hearing had been false.

Disposition

1. Appeal dismissed. The Court held that the fresh evidence did not provide a ground of appeal and did not undermine the safety of the factual findings made at the Newton hearing.
2. The Court adopted the approach in Malook [2011] EWCA Crim 254. Under section 23 of the Criminal Appeal Act 1968, it must first decide whether the proposed evidence is capable of belief, may afford a ground of appeal, and satisfies section 23(2). If fresh evidence is received, the question is whether the acceptable material undermines the safety of the earlier Newton hearing. If it does, the Court must decide the issues arising from the basis of plea itself because it cannot remit the matter for a further Newton hearing.
3. In this case, the relevant threshold was whether the evidence gave rise to a sensible possibility that the complainant’s and her friend’s Newton-hearing evidence was false. Although the Court admitted the appellant’s evidence as capable of belief, it rejected the alleged retraction as untrue. It accepted that the complainant had sought to placate the appellant after feeling worried and intimidated by his approach. Her explanation for the apparent admissions to the solicitor was compelling.
4. The Court also found the friend’s evidence consistently supported the original account. The contemporaneous complaints, the limited opportunity for collusion, and the separate but mutually confirmatory accounts made a fabricated account highly improbable. Nothing therefore undermined the sentencing judge’s conclusion that this was submission under threat rather than freely given consent.
5. Obiter guidance. The former solicitor’s approach to a child witness, though well intentioned, was unwise and open to misinterpretation. Given the risk of a miscarriage of justice, the prudent course would have been to advise the client to apply to the Criminal Cases Review Commission.

• Court of Appeal (Criminal Division) Dismissed the appeal against sentence, holding that the fresh evidence did not undermine the Newton-hearing findings: [2011] EWCA Crim 579.
• Crown Court at Snaresbrook Following a Newton hearing, HHJ Wilkinson rejected the appellant’s account that the sexual activity was consensual and that he had not possessed a knife. On 15 April 2005, the appellant was sentenced to 30 months’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.