Simmonsi, R. v

A disclosure failure does not of itself render a conviction unsafe. The appellate court must assess whether the undisclosed material could have been deployed, whether it was admissible, and whether it would have caused the jury to form a materially different view affecting the safety of the conviction.

Prosecutors must disclose material capable of undermining the prosecution case or assisting the defence. They must not withhold such material by forming their own view of its reliability or admissibility; admissibility is ultimately for the trial judge.

The appellant was convicted at the Crown Court of causing a child to watch sexual activity and sexual activity with a child. He alleged that failures by the prosecution to disclose social services and child-protection material prevented an effective challenge to the complainant’s reliability.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, he appealed against conviction. The central issue was whether the undisclosed material, despite admitted disclosure failings, rendered either conviction unsafe.

1. Appeal dismissed. Although there were serious and regrettable disclosure failings, neither conviction was unsafe.
2. The court stressed that a criminal prosecution must be conducted fairly. Material capable of undermining the prosecution case or assisting the defence should be disclosed. A prosecutor must not decide, by an assessment of the apparent truth of a child’s prior complaints, that material should be withheld. The trial judge, not the prosecutor, decides admissibility.
3. The appellant succeeded on the first two stages of the inquiry. The relevant material ought generally to have been disclosed, and trial counsel might have sought to use some of it. However, the court then considered admissibility and its likely effect on the verdicts.
4. The complainant’s early account describing an affectionate relationship with the appellant was potentially admissible. It could have assisted the defence, but it could also have assisted the prosecution by supporting an inference that she had been groomed and explaining her delayed complaint.
5. The material concerning earlier allegations against family members had limited probative value. Its truth was uncertain and there was evidence that some allegations were true. Exploring them could have generated disproportionate satellite litigation. The suggested Munchausen Syndrome material was not admissible because no diagnosis had been made and its basis was unknown. The defence and jury already knew that the complainant was troubled, had a history of conflict with her mother, had made previous complaints, and had self-harmed.
6. The undisclosed material would not have caused the jury to form a materially different picture of the complainant. The court considered each conviction separately and concluded that both remained safe.

• Court of Appeal (Criminal Division) — on a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, dismissed the appeal against conviction: [2018] EWCA Crim 2534.
• Court of Appeal single judge — refused leave to appeal conviction on inconsistent-verdict grounds on 4 September 2007; the application was not renewed.
• Crown Court — convicted the appellant on 23 April 2007 of causing a child to watch sexual activity and sexual activity with a child, and imposed a total sentence of four years’ imprisonment on 25 April 2007.