L, R v

Fresh medical evidence does not render a conviction unsafe merely because it would now make previously supportive medical evidence neutral. Its likely effect must be assessed in the context of the case at trial and the evidence central to the verdict.

Where the defence accepted that sexual abuse had occurred and disputed only the identity of the perpetrator, neutral medical evidence did not displace a conviction founded principally on the complainant’s credibility and other non-medical evidence.

The appellant was convicted in the Crown Court in 2002 of sexual offences against his niece, including rape, and received concurrent sentences with a total term of 12 years’ imprisonment. A renewed application for leave to appeal against conviction was refused by the Full Court in 2006.

Following a reference by the Criminal Cases Review Commission, he appealed on fresh medical evidence and on previously undisclosed material concerning the complainant’s father. The fresh evidence indicated that the documented hymenal findings would now neither support nor refute the allegations. The central issue was whether that evidence made the convictions unsafe.

1. Appeal dismissed. The fresh medical evidence did not undermine the safety of the convictions.

2. Modern medical learning and the RCPCH report would have enabled the defence to submit that the recorded findings were neutral rather than supportive of sexual abuse. The court accepted that this would have been more favourable to the appellant. It did not, however, establish that the original examination or diagnosis was unsound. Neither reviewing doctor had examined the complainant, and the absence of fuller records did not show that the examination had failed to meet the standards now identified as best practice.

3. The materiality of the evidence was decisive. At trial the defence did not contend that no sexual abuse had occurred. It alleged that any abuse had been committed by the complainant’s father. The medical evidence was agreed background evidence and did not determine the identity of the offender. The jury’s essential task remained the assessment of the complainant’s credibility, with some support from other non-medical evidence.

4. The court distinguished S,B,C,R v R [2012] EWCA Crim 1433, in which medical evidence was central to the conviction. Here, treating the medical evidence as neutral would not have altered the jury’s central evidential task or displaced the conviction.

5. In light of counsel’s concession that the remaining ground could not cure the failure of the medical-evidence ground, the court did not review it in detail.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, dismissed the appeal against conviction.
• Criminal Cases Review Commission: Referred the convictions on, among other matters, fresh medical evidence and previously undisclosed police material.
• Court of Appeal (Criminal Division) (Full Court): Refused the appellant’s renewed application for leave to appeal against conviction on 12 January 2006.
• Crown Court at [place removed]: Convicted the appellant on 4 December 2002 of sexual offences, including rape.