Thompson v R

Where fresh expert evidence is relevant and has probative value on disputed facts or the interpretation of an accused’s conduct, a conviction is unsafe if the court cannot conclude that the jury’s verdict would undoubtedly have survived consideration of that evidence.

A later acquittal on separate allegations does not, by itself, establish that an earlier conviction is unsafe. The court must assess why the later jury may have acquitted and evaluate the new evidence against the issues decided at the earlier trial.

The appellant had been convicted at Reading Crown Court in 2007 of four sexual assaults on two boys. The prosecution case concerned washing, drying and other touching said to have been sexually motivated.

After the convictions, two experts diagnosed the appellant with Asperger’s syndrome. At a later trial at Aylesbury Crown Court on different sexual allegations, he was acquitted after expert evidence was admitted about the condition and its possible effect on his social understanding and behaviour.

The Court of Appeal granted leave to renew the conviction appeal: [2013] EWCA Crim 2264. It admitted the expert evidence under section 23 of the Criminal Appeal Act 1968 and considered whether the 2007 convictions remained safe.

1. Appeal allowed. The four convictions were unsafe and were quashed. The respondent did not seek a retrial.

2. The later acquittals at Aylesbury did not alone resolve the safety of the earlier convictions. The Aylesbury jury might have acquitted because it was not satisfied that the complainants were honest witnesses or had not conspired to make false allegations. If so, it might not have needed to assess the effect of the expert evidence.

3. The expert evidence was nevertheless relevant and of some probative importance to the Reading issues. The appellant’s Asperger’s syndrome could have assisted the jury in deciding both what he did and whether his conduct was sexually motivated. His rule-bound concern with hygiene, lack of sensitivity to resistance, and difficulty understanding the significance of others’ reactions could bear on the alleged washing and drying.

4. The evidence could also have assisted the jury in evaluating alleged touching of the anus and in determining whether the appellant’s manner of answering questions reflected evasiveness or an inappropriate focus on detail. Those matters were material to the interpretation of conduct which was partly admitted and partly denied.

5. The court could not conclude that the 2007 verdicts would undoubtedly have survived the jury’s consideration of the new evidence. The convictions therefore had to be quashed.

• Court of Appeal (Criminal Division): Allowed the renewed appeal against the 2007 convictions and quashed them.
• Crown Court at Reading: The appellant was convicted on 11 May 2007 of four sexual assaults.