Ackerley v Her Majesty’s Attorney General of the Isle of Man (Isle of Man)

In a second criminal appeal, the Privy Council does not act as a second Court of Criminal Appeal. Its task is limited to deciding whether the lower appellate court applied the correct safety test and could reasonably conclude that the conviction remained safe. It will not rehear evidence, reassess credibility, or revisit evidential weight and inferences except in exceptional circumstances. Fresh expert evidence about autism must be assessed for its actual impact on the conviction. General procedural criticisms or evidence about autistic communication do not justify quashing where they had no material effect. Autism may explain conduct, memory, or statements, but it does not alter whether the alleged act was criminal. The evidence must be assessed as a whole.

The appellant was convicted of indecent assault following a summary trial before the High Bailiff. His appeal to the Staff of Government (Appeal Division) was dismissed. The Appeal Division admitted fresh reports concerning his autism, including evidence from Professor Baron-Cohen, but concluded that the conviction was safe.

Before the Board, the appellant argued that insufficient account had been taken of his autism, including its possible effect on procedural safeguards, his statements to the police, and the late emergence of his account that he had accidentally fallen on the complainant. The central issue was whether the fresh expert evidence made the conviction unsafe or required the Board to re-examine the Appeal Division’s assessment.

The Board advised Her Majesty that the appeal ought to be dismissed.

1. Limited scope of review. On a second criminal appeal involving fresh evidence, the Board’s function is limited. It must consider whether the lower appellate court applied the correct safety test and could reasonably conclude that the conviction remained safe. It does not act as a second Court of Criminal Appeal and will not ordinarily rehear issues concerning the weight of evidence or the inferences drawn from it, save in exceptional circumstances. This approach was applied in Dial v The State (Trinidad and Tobago) [2005] UKPC 4, [2005] 1 WLR 1660, and supported by Stafford v The State [1999] 1 WLR 2026 and Nyron Smith v The Queen (Jamaica) [2008] UKPC 34, 74 WIR 379.
2. Fresh evidence and procedural criticisms. The Appeal Division had admitted and carefully considered the fresh expert evidence. Criticisms concerning interrogation, consultation with an advocate, the role of an appropriate adult, questioning, and seating arrangements did not affect safety because they had no material bearing on the evidence relied upon or the conclusions reached.
3. Expert evidence. Expert evidence could explain the possible effects of autism on communication, memory, social behaviour, and truthfulness. It could not assess the general evidence or express an opinion on guilt, which were functions of the court. The Appeal Division was therefore entitled to disregard those parts of the report that exceeded the proper limits of expert evidence.
4. Assessment of the evidence. The courts below were entitled to accept the complainant’s evidence and reject the suggestion that she had mistaken an accidental fall over the duvet for repeated digital penetration. Autism could explain socially inappropriate behaviour or delayed and fragmentary recollection, but it did not weaken otherwise compelling evidence of the alleged act. Repeated denials were not necessarily truthful, and the whole of the evidence had to be assessed.
5. The Appeal Division had applied the correct test and its conclusion that the conviction was safe was fully open to it. The Board would not duplicate that process or substitute its own assessment of the evidence.

1. Privy Council: Further appeal dismissed. The Board advised that the appeal ought to be dismissed.
2. Staff of Government (Appeal Division), Isle of Man: Appeal against conviction dismissed after admission and consideration of fresh expert evidence concerning autism.
3. High Bailiff: The appellant was convicted of indecent assault following a three-day summary trial.