Harris, R. v (Rev 3)

Fresh evidence should be received where the interests of justice require it, having regard to its credibility, its potential to afford a ground of appeal, and any explanation for its absence at trial. The decisive question on an appeal against conviction remains whether the conviction is safe.

A disclosure complaint does not render a conviction unsafe where the additional material merely repeats information already before the jury and provides no new basis for undermining the prosecution case or assisting the defence. The quashing of one conviction following a cross-admissibility direction does not automatically invalidate the others. The appellate court must assess whether removal of that count leaves sufficient independent evidence to sustain the remaining convictions.

The appellant was convicted at Southwark Crown Court of 12 historic counts of indecent assault involving four complainants. He was sentenced to a total of five years and nine months’ imprisonment.

In a renewed and out-of-time application for leave to appeal, he relied principally on fresh evidence concerning Count 1. The new material undermined the reliability of the only witness, apart from the complainant, who had placed him at the relevant venue. He also challenged Counts 10 to 12 on alleged disclosure failures and further fresh evidence concerning that complainant.

The appellant contended that, if any of those convictions were unsafe, the cross-admissibility direction given at trial also rendered the convictions on the remaining counts unsafe.

1. The application succeeded in part. The court granted leave and an extension of time on Count 1, received fresh evidence concerning David James, and quashed that conviction as unsafe. Leave to appeal was refused in respect of Counts 2 to 12.

2. Under section 23 of the Criminal Appeal Act 1968, the primary consideration in receiving fresh evidence is the interests of justice. The court should have regard to the statutory matters, including credibility, potential relevance to an appeal, and the explanation for the evidence not having been called. The ultimate question was whether the conviction remained safe.

   The newly disclosed information about David James’s military service and employment history seriously damaged his credibility. He had been the only witness, apart from WR, to confirm that the appellant attended the community centre at the relevant time. Without him, WR’s account and her earlier complaints did not give the court the necessary confidence in the verdict. The court declined to receive the other proposed evidence on Count 1 because it was duplicative, insufficiently reliable, or lacked a reasonable explanation for not being called at trial.

3. On Counts 10 to 12, the court considered the disclosure duty under section 3 of the Criminal Procedure Investigations Act 1996. Even assuming that reasonable steps had not been taken to obtain all of the overseas medical records, the additional records did not materially assist the defence or undermine the Crown case. They reinforced information already known to the jury and did not show that TL was prone to making false allegations. The further proposed evidence and the alleged slip in the summing up did not affect the safety of those convictions.

4. The court distinguished R v Morris [2016] EWCA Crim 2236. The removal of Count 1 did not poison the remaining verdicts merely because the jury had been directed on cross-admissibility. The evidence concerning GP and JH, together with the bad-character evidence, remained intact. Count 1 involved a distinct identification and venue issue. On the totality of the remaining evidence, the convictions on Counts 2 to 12 were safe.

5. The Crown did not seek a retrial on Count 1. The court agreed that a retrial would not be in the public interest and made no order for one.

• Court of Appeal (Criminal Division) — Granted an extension of time and leave to appeal on Count 1, quashed that conviction as unsafe, and refused leave to appeal on Counts 2 to 12.

• Southwark Crown Court — On 30 June 2014, convicted the appellant of 12 counts of indecent assault. On 4 July 2014, sentenced him to a total of five years and nine months’ imprisonment.