Aslam, R v

On a conviction appeal based on fresh evidence, the Court of Appeal must determine whether the conviction is safe. It must assess the force of the new material for itself, while keeping distinct the question of safety from the question of guilt.

The court should not conduct a surrogate retrial. It may refuse rebuttal evidence where receiving it would require a credibility contest better determined by a jury. Fresh evidence which materially undermines the complainant’s credibility on matters central to the original trial may render the conviction unsafe.

The appellant had been convicted at Manchester Crown Court of 16 counts of rape of his wife. The prosecution case depended substantially on the complainant’s account. The defence was that sexual intercourse was consensual and that the allegations were fabricated.

On a conviction appeal by leave, the appellant relied on fresh evidence. It concerned whether the complainant’s mother and sister had lived at the matrimonial home during the indictment period, alleged admissions by the complainant that she had lied, and evidence bearing on her motivation and credibility. After hearing the directed witnesses, the Crown sought leave to call the complainant in reply.

The central issue was whether the fresh evidence undermined the safety of the convictions.

1. Appeal allowed. The cumulative fresh evidence required the court to hold that the convictions were unsafe.

2. Applying Pendleton [2002] 1 WLR 72, the court’s task was to assess the force of the new evidence and determine the safety of the conviction. It was not to determine guilt or retry the case.

3. The court refused the Crown leave to call the complainant. Her evidence would have required the court to resolve a contest of credibility between her and the new witnesses. That would have drawn the court into the jury’s proper function, particularly as it had not heard the appellant’s evidence on the issue of residence.

4. Authentic documentary evidence, reinforced by the evidence of four witnesses, clearly established that the complainant’s sister lived at the matrimonial home for substantial parts of the indictment period. Her mother also lived there for a shorter period. That evidence materially contradicted the complainant’s trial evidence and bore on the parties’ respective credibility and on the practical likelihood of repeated rapes in the accommodation without the relatives’ knowledge.

5. The court accepted evidence from two witnesses that, shortly after conviction, the complainant admitted making false allegations. It also accepted evidence from a refuge worker which strongly suggested that, before trial, the complainant was contemplating giving a false or embellished account in order to secure contact with her children. These matters substantially undermined credibility which had been central at trial.

• Court of Appeal (Criminal Division): Allowed the conviction appeal in [2014] EWCA Crim 1292 after receiving fresh evidence.
• Manchester Crown Court (HHJ Gee): Convicted the appellant on 20 December 2010 of 16 counts of rape and imposed concurrent sentences of nine years’ imprisonment. The sentence was later increased to 13 years following an Attorney General’s reference.