Lawson, R. v

Fresh evidence should be received under Criminal Appeals Act 1968 where it is admissible, capable of belief and sufficiently material to afford a ground for allowing an appeal. A conviction is unsafe where the evidence materially undermines the prosecution’s use of medical evidence and the credibility evidence on which it depended.

Its effect on separate convictions must nevertheless be assessed independently. A credibility issue relevant to a rape allegation does not automatically render convictions for distinct sexual assaults unsafe, particularly where the earlier jury was directed to consider each count separately and the medical evidence had been neutralised.

The appellant was convicted of three sexual assaults in 2006. After the jury failed to agree on a rape count, he was convicted of rape at a retrial in 2008. A first reference by the Criminal Cases Review Commission resulted in an unsuccessful appeal, reported at [2012] EWCA 1961.

A second reference followed disclosure of the contemporaneous notes of two examining doctors. The notes supported an earlier social-worker note that the complainant had reported a penetrative sexual assault at age five. This evidence could explain the observed hymenal damage and called into question the complainant’s denial of previous intercourse. The central issue was whether the fresh evidence rendered the rape conviction, and also the separate sexual-assault convictions, unsafe.

1. Appeal allowed in part. The court admitted the doctors’ contemporaneous notes as fresh evidence under section 23 of the Criminal Appeals Act 1968. The evidence would have been admissible at trial, was capable of belief, and afforded a ground for allowing the appeal. Although the court queried why it had not been adduced earlier, that did not prevent its receipt in the interests of justice.
2. The evidence undermined the prosecution’s presentation at the retrial of hymenal damage as attributable to the alleged rape. It also undermined the complainant’s assertion that she had been a virgin in the sense of having had no possible earlier hymenal injury. The medical evidence could not medically be attributed to one incident rather than another. The court was therefore satisfied that the rape conviction was unsafe and quashed it.
3. The sexual-assault convictions remained safe. At the first trial, the complainant’s claim of virginity had not been pursued by the defence and the judge had correctly directed that the medical evidence was inconclusive because of the reported childhood sexual abuse. The newly disclosed evidence did not therefore have the same significance for those convictions.
4. The court accepted, consistently with A (No.2) [2002] 1AC, 45, that any credibility issue arose from the complainant’s denials and apparent inconsistency rather than from her sexual behaviour itself. It distinguished DGF [2008] EWCA Crim 2859: unlike that fact-specific case, the rape and sexual-assault allegations were not so intertwined that the fresh evidence cast doubt on all convictions. The jury had been directed to consider the counts individually and had plainly differentiated between them.
5. The rape conviction was quashed. The appeal against the three sexual-assault convictions was dismissed.

• Court of Appeal (Criminal Division) On the second Criminal Cases Review Commission reference, the court quashed the rape conviction but dismissed the appeal against the three sexual-assault convictions.
• Court of Appeal (Criminal Division) An earlier appeal following a Criminal Cases Review Commission reference was dismissed on 19 July 2012: [2012] EWCA 1961.
• Retrial The appellant was convicted of rape by a majority verdict on 16 January 2008. Leave to appeal was refused by the single judge in July 2008 and was not renewed.
• Trial The appellant was convicted of three sexual assaults on 10 November 2006. The jury failed to agree on six further sexual-assault counts and one rape count. A renewed application for leave to appeal those convictions was dismissed in December 2007.