DS, R. v

Under section 23 of the Criminal Appeal Act 1968, fresh evidence must satisfy each statutory condition. Evidence plainly available before trial will normally fail where no reasonable explanation is given for not obtaining it, particularly where it is peripheral and cannot affect the safety of the conviction.

A jury should not normally receive new evidence after retirement. The rule is not absolute, but departure requires an exceptional case in which justice requires it. A trial judge addressing possible juror impropriety must make a case-specific assessment of whether impropriety occurred and whether it can be cured. Proper, robust directions may cure concerns without inquiry into the substance of jury deliberations.

The applicant was tried at the Crown Court at Wolverhampton for sexual offences and assault alleged to have occurred during his relationship with K. He was acquitted of one count of rape but convicted of four further counts of rape, three counts of causing a person to engage in sexual activity without consent, and assault occasioning actual bodily harm. He received concurrent sentences totalling 13 years’ imprisonment.

He sought leave to appeal against conviction on the basis of Facebook messages produced after the jury had retired, and on the judge’s response to a juror’s note alleging inappropriate discussion and reliance on matters outside the evidence. He also sought leave to appeal against sentence. The central issues were whether the messages should have been admitted or the jury discharged, whether the judge adequately addressed the juror concerns, and whether the sentence was excessive.

1. Conviction. The applications for leave to appeal against conviction, and to adduce fresh evidence, were refused. The Facebook messages failed the requirements of section 23 of the Criminal Appeal Act 1968. They were clearly obtainable before trial, but neither the applicant nor his legal team gave a reasonable explanation for failing to obtain them. They also did not arguably afford a ground for allowing the appeal: they concerned a relationship break-up already accepted on both sides and were peripheral to the allegations and the principal credibility issues.
2. The trial judge was entitled to reject the late application. The ordinary rule stated in R v Davis 62 Cr App R 194 remains that a jury is not given new evidence after retirement. Later authorities establish that the rule is not absolute, but exceptional admission is reserved for cases where justice requires it. These messages were peripheral, required investigation and proof, raised admissibility issues, and would have disrupted and reopened the trial. They could not justify discharging the jury.
3. Juror concerns. Applying R v Momodou and Limani [2005] 2 Cr App R 6, the response to suspected juror impropriety was case-specific. The judge was entitled to avoid inquiries into the substance of jury-room deliberations. Inquiry into a juror’s subjective view of colleagues’ ability to honour their oath would neither have been appropriate nor helpful. The judge instead gave clear directions that the case must be decided objectively, dispassionately and solely on the evidence, and obtained the jury’s confirmation that it could continue. Those directions sufficiently addressed any actual or apparent bias. There was no arguable error affecting conviction safety.
4. Sentence. Leave was granted on count 7 because all parties and the judge had mistakenly treated life imprisonment as the maximum sentence. The correct maximum was ten years. A maximum term was inappropriate, so the sentence on that count was reduced from ten to seven years’ imprisonment, concurrent.
5. The remaining challenge failed. The judge was entitled to place the rape offences in category 1B, having regard to the sustained incident, multiple serious offences, vulnerability, violence, degradation and serious consequences for K. The concurrent 13-year total properly reflected the overall offending and was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division). In R v DS [2017] EWCA Crim 870, the court refused leave to appeal against conviction and fresh evidence. It varied the sentence on count 7 only, reducing it to seven years concurrent, and otherwise dismissed the sentence appeal.
• Crown Court at Wolverhampton. On 17 October 2016, the applicant was acquitted of count 1 and convicted of counts 2 to 9. On 21 October 2016, he received concurrent sentences totalling 13 years’ imprisonment.