Kay v R

Under section 23 of the Criminal Appeal Act 1968, fresh evidence may be admitted where it is capable of belief, admissible, affords a ground for allowing the appeal, and there is a reasonable explanation for its absence at trial. In assessing safety, the court asks whether the evidence raises a reasonable doubt that the defendant would have been convicted.

An inexcusable delay does not prevent an extension where the interests of justice, having regard to the appeal’s merits and the reasons for delay, require it. A jury must be directed that the prosecution must prove both absence of consent and absence of a reasonable belief in consent.

The appellant was convicted at Derby Crown Court of raping A and sentenced to four years and six months’ imprisonment. He was acquitted of two rape counts concerning B.

Almost two years and five months out of time, he sought leave to appeal. His principal ground relied on further Facebook messages, recovered from his account, which had not formed part of the messages shown to the jury. He contended that the complete exchange undermined A’s account and supported his account of consensual intercourse. He also challenged the jury direction on consent and reasonable belief in consent.

The central issues were whether the further material should be admitted under section 23 of the Criminal Appeal Act 1968, whether time should be extended, and whether the resulting conviction was safe.

1. The court granted leave, extended time, admitted the fresh evidence, allowed the appeal, and quashed the conviction. The respondent did not seek a retrial, so no further order was made.

2. Section 23 of the Criminal Appeal Act 1968 governed admission of the further Facebook material. The evidence was capable of belief and would have been admissible at trial. Although the applicant had known that the trial exhibit was incomplete, the court accepted that, in the unusual circumstances, there was a reasonable explanation for the failure to adduce the full exchange at trial.

3. The complete messages were cogent evidence in a case turning on the competing accounts of A and the applicant. They showed selective omissions from the exhibited exchange. Those omissions could misleadingly suggest that contact after the alleged rape was confined to pregnancy and emergency contraception, whereas the full exchange both undermined A’s account and supported the applicant’s account. Applying the approach in R v Pendleton [2002] 1 WLR 72, the material raised a reasonable doubt whether the applicant would have been convicted had the jury seen it. The conviction was therefore unsafe.

4. The delay in commencing the appeal was not excusable. Nevertheless, the interests of justice were overriding. The merits of the appeal and the explanation for the procedural delays justified an extension of time.

5. The court did not need to decide the consent-direction ground in detail. The Recorder’s wording was not helpful, but the directions made sufficiently clear that the prosecution had to prove both lack of consent and that the applicant lacked a reasonable belief in consent. That ground had no merit.

6. The court also observed that written directions or a route to verdict would have greatly assisted the jury, given the different issues concerning the two complainants and the features of the case.

• Court of Appeal (Criminal Division): Allowed the appeal in [2017] EWCA Crim 2214, admitted fresh evidence, extended time, and quashed the conviction.
• Crown Court at Derby: The appellant was convicted by a 10–2 majority of raping A on 23 September 2013 and sentenced to four years and six months’ imprisonment on 11 November 2013.