Jones, R v

Where a defendant has an unrecognised learning disability that makes them vulnerable to leading and adversarial questioning, the trial process must make proper allowance for that vulnerability. The jury must be enabled to assess the defendant’s evidence in that light. If unfair questioning and the absence of appropriate support or direction may have created a false impression of the defendant’s account, a conviction may be unsafe, particularly where credibility is central and the prosecution case is circumstantial.

Fresh evidence under section 23 of the Criminal Appeal Act 1968 remains subject to the statutory conditions. Late medical or other evidence which does not materially advance the appeal, or could with reasonable diligence have been obtained for trial, will not ordinarily be admitted.

The appellant was convicted at Cardiff Crown Court of sexual activity by a care worker with a person with a mental disability, contrary to section 38 of the Sexual Offences Act 2003. The prosecution case was circumstantial. It relied on the complainant’s injury, the appellant’s opportunity, his admitted request that a colleague lie about them being together, and the jury’s assessment of his evidence.

By leave of the Full Court, he appealed out of time against conviction and sought to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The fresh evidence concerned his learning disability and possible medical explanations for the complainant’s injuries. The central issue was whether the trial’s handling of his vulnerability and the expert evidence rendered the conviction unsafe.

1. Appeal allowed. The court quashed the conviction as unsafe. The prosecution did not seek a retrial.

2. The court admitted the fresh psychological and psychiatric evidence under section 23 of the Criminal Appeal Act 1968. It established that the appellant had a significant learning disability which made him vulnerable, suggestible and liable to acquiesce under aggressive cross-examination. Those difficulties could be masked by his demeanour and apparent social competence.

3. The court declined to receive the proposed fresh medical evidence as evidence in the appeal. It did not significantly advance the appellant’s case, and the possible hospital explanation for the internal injury could and should have been investigated at trial with reasonable diligence. The court nevertheless considered the material insofar as it exposed the inadequacy of the joint expert statement used at trial.

4. A joint expert statement was not objectionable in itself. However, the statement here failed to identify material disagreements and did not clearly address possible causes of injury. It was consequently less helpful to the jury than it should have been.

5. The decisive defect concerned the appellant’s evidence. His credibility was crucial in a case with no direct or scientific evidence linking him to the injury. The jury received a conventional direction that he should be judged by the same standards as any other witness, but the fresh evidence showed that he did not begin from the same position as an ordinarily functioning witness. The jury received no direction about his learning disability, and parts of the cross-examination were improperly charged and rhetorical even for a witness without that disability. They were unfair when directed to this appellant and may have left the jury with a false impression that he had no answer to the allegation.

6. Taking those matters together, in the highly unusual circumstances of the case, the conviction could not be regarded as safe.

• Court of Appeal (Criminal Division) — In [2018] EWCA Crim 2816, the court allowed an out-of-time appeal against conviction and quashed the conviction. The prosecution did not seek a retrial.
• Crown Court at Cardiff — On 9 July 2008, the appellant was convicted of an offence contrary to section 38 of the Sexual Offences Act 2003. He was sentenced to nine years’ imprisonment, later reduced on appeal to seven years; the court and citation for that sentence appeal were not stated.