Dent, R v

In an appeal concerning historic sexual offences, newly available material renders a conviction unsafe only where it could realistically have made a material difference to the verdict. Missing records warrant relief where their potential evidential effect is capable of being determinative. Speculation about what lost records might have shown is insufficient, particularly where the alleged opportunity for offending remains open.

When allegations concern distinct complainants, locations and circumstances, the safety of convictions on one group of counts does not depend on the verdicts on another. A properly favourable direction requiring separate consideration of each count reinforces that conclusion.

R v Dent came before the Court of Appeal following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. Following a retrial at Nottingham Crown Court, the appellant had been convicted of indecent assaults and attempted buggery alleged by residents of two children’s homes.

He contended that non-disclosure undermined one complainant’s credibility; that missing records could have resolved whether an offence against another complainant could have occurred; and that those matters affected the remaining convictions. The Crown conceded that two counts of indecent assault had been prosecuted outside the applicable time limit.

The central issue was whether the disclosed and missing material rendered the convictions unsafe.

1. The appeal was dismissed save that the convictions on counts 2 and 3 were quashed. The Crown conceded that prosecution of those counts was impermissible because the time limit applicable to unlawful sexual intercourse with a girl under 16 could not be avoided by charging indecent assault.

2. The court did not determine conclusively whether there had been non-disclosure concerning CF. Proceeding on the Crown’s pragmatic assumption, the material concerning alleged untruthfulness was either inadmissible opinion or of slight relevance. It could not realistically have made a material difference to the verdict. Alleged sexual promiscuity was inadmissible under Youth Justice and Criminal Evidence Act 1999, section 41.

3. Evidence that a supporting witness had poor memory, or that other witnesses’ social-services records presented a different general picture, likewise did not undermine the safety of the conviction. The material was marginal, did not directly address the critical issue, or was unlikely to have affected the evidence materially even if admissible.

4. The missing Enderleigh records did not render count 4 unsafe. Unlike the missing evidence in R v Sheikh and R v Joynson, their potential was not determinative. The available documents did not exclude the alleged August 1976 incident, and the appellant had not contended that he did not work during that month or lacked the opportunity to offend. The challenge to count 5 depended on count 4 and therefore failed.

5. The SG counts concerned a different complainant, institution and circumstances. Although the counts could have been treated as mutually corroborative, the trial judge directed the jury to consider each count separately. The court was not persuaded that the SG verdicts depended on, or were influenced by, the other allegations.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, quashed convictions on counts 2 and 3 and dismissed the appeal in all other respects: [2014] EWCA Crim 457.

• Crown Court at Nottingham: Following a retrial, convicted the appellant on 13 December 2001 of nine counts of indecent assault and two counts of attempted buggery; sentenced him on 25 January 2002 to seven years’ imprisonment.

• Full Court: Refused leave to appeal against conviction on 14 March 2003.