D v R.

On a post-conviction application for confidential third-party material, the Court of Appeal should follow a procedure equivalent to that in Criminal Procedure Rules Part 28. The court must give the person to whom the material relates notice and a proper opportunity for representation. It must take proper account of confidentiality and Article 8 privacy rights.

Such applications after conviction are wholly exceptional. An applicant must give a detailed and convincing explanation for the earlier failure to pursue appropriate investigation. The court should not undertake the exercise without very good reason.

The applicant, aged 17 at the relevant time, was convicted of rape at the Crown Court at Luton and sentenced to five years’ imprisonment. He sought an extension of time and leave to appeal on the conditional basis that records held by the hostel where he and the complainant lived might show previous false allegations by the complainant.

The application concerned directions for obtaining that third-party material under section 23(1) of the Criminal Appeal Act. The hostel and complainant were notified. The hostel lodged the requested material with the court, and it was subsequently disclosed to both parties. The central issue was the procedure the Court of Appeal should adopt where confidential third-party material is sought after conviction.

1. No order was made. The requested material had been lodged with the court and disclosed to the Crown and the applicant’s advisers. The court therefore did not need to determine whether either the Crown or the defence had been at fault before trial.

2. Section 23(1) of the Criminal Appeal Act provided the jurisdictional basis for an order to produce material connected with the proceedings. Where confidential third-party material is sought in this court, an equivalent procedure to that in Part 28 of the Criminal Procedure Rules should be followed.

3. The procedure must protect the Article 8 rights of the person to whom the material relates. Following the approach in R (on the Application of TB) v The Combined Court at Stafford [2006] EWHC 1645 (Admin), that person must have notice and a proper opportunity to make representations. The responsibility for securing procedural fairness lies with the court, not with the record-holder alone.

4. An application of this kind after conviction should be wholly exceptional. The court will require a detailed and convincing explanation for the earlier failure to undertake appropriate investigation. It should not be assumed that the court will embark on the exercise without very good reason.

5. The court noted Brushett [2001] Crim LR 471 as authority that disclosure should be granted where the subject of the records had previously made false allegations, or had engaged in sexual activity with another adult. It did not decide whether those circumstances existed here.

• Court of Appeal (Criminal Division): In connection with a proposed application for leave to appeal against conviction, the court determined the proper procedure for seeking confidential third-party material and made no order because the material had been disclosed.
• Crown Court at Luton: The applicant was convicted of rape on 21 October 2009 before Judge Mensah and was sentenced to five years’ imprisonment.