O'Meally, R v

On an appeal based on fresh undisclosed material, the Court of Appeal must decide for itself whether the conviction is safe. The possible effect of the material on the jury is a useful check, but it is not the determinative test.

A serious failure of disclosure does not itself render a conviction unsafe. The court must assess the material in its proper context, including the issues explored at trial, the realistic use that could have been made of it, and the strength of the other evidence. The conviction remains safe where the fresh material gives no real basis to doubt the verdicts.

The applicant was convicted at Wolverhampton Crown Court of nine counts of rape and sentenced to life imprisonment with a minimum term. His original application for permission to appeal against conviction was refused by a single judge in 2010 and was not renewed.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, he appealed against his convictions. He alleged material non-disclosure concerning the complainant's prior complaints against a former partner, social-services and police records, telephone records, and contact between a police officer and the complainant during the trial.

The central issue was whether the fresh undisclosed material undermined the complainant's credibility so as to render the verdicts unsafe.

1. The appeal against conviction was dismissed. Despite serious disclosure failures, the court did not doubt the safety of the nine rape convictions.

2. The court applied the approach summarised in Mushtaq Ahmed (2010) EWCA Crim 2899. It had to decide for itself whether the fresh material rendered the convictions unsafe. The possible effect on the jury was relevant only as a check on that independent assessment. The court also agreed with the analysis of Pendleton and Dial in Burridge.

3. The undisclosed material about the complainant's allegations against Craig Douglas did not establish a pattern of fabricated allegations against partners. The first allegation was unexplained, while the later incidents concerned comparatively minor and materially different events. Defence counsel had already been able to expose numerous inconsistencies in the complainant's evidence.

4. The undisclosed social-services and police records could have shown more clearly that the complainant knew the nature of the applicant's previous convictions. However, the jury had already received unequivocal evidence that she had been told of them. The records also carried forensic risks for the applicant because they recorded his acceptance of the offending. The additional telephone material was consistent with the evidence already heard and did not materially undermine the complainant's account that she acted from fear. There was no evidence that the supporting police officer discussed the complainant's evidence with her during the adjournment.

5. The court also took account of the strong independent strands of the prosecution case, including propensity evidence, the evidence about the distinctive black-and-white mug, and the applicant's letters. There was no realistic possibility of different verdicts had disclosure been made. The sentence issue was reserved for further written submissions.

• Court of Appeal (Criminal Division) — Following a Criminal Cases Review Commission reference under section 9 of the Criminal Appeal Act 1995, the court dismissed the appeal against conviction in [2015] EWCA Crim 905. It reserved the separate sentencing issue for further submissions.
• Court of Appeal (Criminal Division) — On 11 February 2010, a single judge refused permission to appeal against conviction. The application was not renewed to the full court.
• Wolverhampton Crown Court — On 29 September 2009, the applicant was convicted of nine counts of rape and sentenced to life imprisonment with an eight-year-and-nine-month minimum term.