S & Ors v R.

On an appeal involving fresh evidence, the Court of Appeal must evaluate that evidence in the context of the whole case and decide for itself whether the conviction is safe. It does not decide by predicting the jury’s response.

Medical evidence presented as independent scientific support may render convictions unsafe where later evidence shows it was neutral and the jury may have used it to reinforce the complainant’s credibility across linked counts. Conversely, neutralised medical evidence does not make a conviction unsafe where it does not undermine the complainant’s account and other reliable evidence supports guilt. A failure to follow safeguards when replaying video evidence requires an assessment of actual prejudice. Fresh admissions may be received under Criminal Appeal Act 1968 where reliable and necessary in the interests of justice.

Four unconnected appeals from convictions for sexual offences against children were referred by the Criminal Cases Review Commission under the Criminal Appeal Act 1995. Each appeal involved fresh medical evidence arising from changed knowledge and practice concerning physical signs said at trial to support sexual abuse.

In B, C and S, the parties accepted that the trial medical evidence was incorrect or should now be treated as neutral. The issue was whether the resulting loss of apparent independent corroboration rendered the convictions unsafe. R also relied on revised medical evidence, an alleged defect in the replay of the complainant’s video interview, and the complainant’s later retraction and reaffirmation. The Crown sought to adduce evidence of R’s later admissions to prison and probation officers.

1. The appeals of B, C and S were allowed and their convictions were quashed. R’s appeal was dismissed. The court received the relevant fresh evidence under section 23 of the Criminal Appeal Act 1968. It applied the safety test itself, rather than asking what the jury would probably have done.

2. In B, C and S, the medical evidence had been presented by experienced professionals as strong support for penetration or repeated sexual abuse. The fresh evidence established that the findings were normal variants, non-specific, or incapable of reliably bearing the significance attributed to them at trial. The court could not be confident that the juries would have convicted without evidence which appeared to provide dispassionate scientific confirmation of the complainants’ accounts. That risk extended beyond the penetration counts because a jury could use apparent corroboration of one allegation to strengthen its assessment of the complainant’s truthfulness on the remaining counts.

3. In R, the revised medical evidence did not undermine the complainant’s evidence. The persistent hymenal notch continued to support the possibility of a healed traumatic injury, although it was not conclusive of penetration. The court also held that the judge’s failure to give two safeguards identified in R v Rawlings; R v Timothy Broadbent [1995] 1 WLR 178, when part of the video interview was replayed, caused no identifiable prejudice. The trial had been short, the evidence was recent, and the jury declined an invitation to be reminded of cross-examination.

4. The complainant’s post-trial retraction did not undermine the original evidence. It was made years later under family pressure and was subsequently disavowed.

5. The court admitted the Crown’s fresh evidence of R’s admissions. It found the contemporaneous records and the probation officers reliable, and concluded that the admissions were made free from material situational pressure. Taken with the complainant’s evidence and the modified medical evidence, they were compelling proof of guilt. R’s conviction was safe.

• Court of Appeal (Criminal Division): On Criminal Cases Review Commission references under the Criminal Appeal Act 1995, the court quashed the convictions of B, C and S, and dismissed R’s appeal.
• Full Court: B’s appeal against conviction was dismissed on 20 August 1999. C’s renewed applications for leave to appeal against conviction and sentence were refused on 14 December 2010.
• Crown Court: B was convicted at Preston on 21 December 1994; C at Inner London on 17 February 2005; S at Truro on 15 February 2002; and R at Stafford on 28 August 2003.