FA, Re

Fresh evidence said to amount to a complainant’s retraction will not render a conviction unsafe unless it creates sufficient anxiety about the conviction’s safety. The court must assess the reliability of the alleged retraction in light of all the fresh evidence. Where the complainant remains firm that her trial account was true, and the evidence of retraction is seriously undermined, the safety threshold is not met.

The applicant was convicted at Croydon Crown Court of sexual offences against KK, his niece, and received a total sentence of nine years’ imprisonment.

More than two years after conviction, he sought an extension of time to apply for leave to appeal against conviction. He relied on alleged fresh evidence that KK had told family members that her allegations were false and had signed a note recording that assertion.

KK denied making the alleged retraction. She maintained that her trial evidence was true and said that her mother had urged her to lie to the police. The central issue was whether the fresh evidence created sufficient anxiety about the safety of the convictions.

1. The referred application was rejected. The alleged fresh evidence did not create sufficient anxiety about the safety of the applicant’s convictions.

2. The court assessed the purported retraction by reference to its reliability. The written note was materially compromised by FA’s evidence. FA accepted that its opening words were not spoken by KK, although her affidavit had said otherwise. She could not reliably explain the circumstances or date of the telephone call, or the circumstances in which KK was said to have signed the note.

3. FA also accepted that she had waited until a carer was absent before raising the note with KK because the supervisor would not have permitted it. JA could not assist with when he signed the note or whether KK’s signature was then present. SA was not called.

4. KK had profound difficulties but gave clear and firm evidence that she had not withdrawn her trial account, had not spoken the words in the note, and had been pressed by her mother to lie. Her evidence, together with the substantial damage to the credibility of FA and JA, meant that the applicant could not clear the necessary hurdle.

• Court of Appeal (Criminal Division): Rejected the referred application for an extension of time to seek leave to appeal against conviction on fresh-evidence grounds.
• Crown Court at Croydon: The applicant was convicted on 26 March 2010 of a number of offences. On 30 September 2011 he was sentenced to a total of nine years’ imprisonment.