Anderson, R. v

On a late application for leave to appeal against conviction, the decisive question is whether the conviction is unsafe. A conviction will not ordinarily be reopened merely because a later advocate identifies possible imperfections in a historic summing-up. This is particularly so where the directions were agreed, proper and fair when given. The applicant must show that the directions were plainly wrong or otherwise establish an arguable basis for finding the conviction unsafe.

The applicant was convicted at Luton Crown Court in 1995 of indecent assault on a male and sentenced to three years and six months’ imprisonment. His appeal against sentence failed. About 16 years later, after an unsuccessful approach to the Criminal Cases Review Commission, he sought an extension of time, leave to appeal against conviction, and leave to call fresh evidence.

He initially relied on a proposed report about childhood memory and evidence from the later trial of two school officials. The expert evidence was abandoned. The remaining grounds contended that the later evidence showed errors in directions concerning specimen counts, recent complaint and evidence from another pupil. The central issue was whether any ground arguably demonstrated that the conviction was unsafe.

1. The applications were refused. The applicant gave no satisfactory explanation for the approximately 16-year delay. More importantly, neither the proposed fresh material nor the criticisms of the summing-up provided an arguable basis for concluding that the conviction was unsafe.
2. The judge’s directions had been appropriate on the evidence and in accordance with proper and fair practice at the time of trial. A subsequent account given in separate proceedings did not make those directions wrong. The alleged inconsistencies were more apparent than real, and did not undermine the directions on specimen counts or recent complaint.
3. The evidence of another pupil was clearly admissible to rebut the applicant’s case that no other child had complained of his behaviour. The applicant identified no evidential basis for a direction on contamination or collusion. There was therefore no material non-direction.
4. The court reiterated that the appellate test is the safety of the conviction. A detailed forensic examination of a historic summing-up will rarely justify setting aside a conviction where the directions were agreed and were proper at the time, unless they were plainly wrong.
5. Obiter, the court expressed doubt whether the unusual decision in R v JH and R v TG [2006] 1 Cr App R 10 would be decided similarly following later criticisms of Professor Conway’s methodology. It also stated that lawyers seeking public funding for expert evidence must disclose relevant Court of Appeal decisions indicating that the evidence may not be received.

• Court of Appeal (Criminal Division): By judgment [2012] EWCA Crim 1785, refused the applicant’s renewed applications after refusal by the single judge.
• Luton Crown Court: In 1995, convicted the applicant of indecent assault on a male and imposed a sentence of three years and six months’ imprisonment. A subsequent appeal against sentence failed.