JWW, R v

Fresh evidence will not justify an appeal against conviction where, even if it might make the complainant’s account more difficult, it does not make that account impossible or undermine the safety of the verdict. A Lucas direction is not required in every case. Its absence must be assessed in context, including any tactical reason for not seeking it and other directions given to the jury.

A delay direction need not reproduce every part of the Crown Court Compendium. It must instead be adapted to the circumstances of the trial. A reasoned tactical decision not to call character evidence will not found an appeal merely because a different decision might have been made.

The applicant was convicted at Leicester Crown Court of historical sexual offences committed against his former wife’s sister between 1996 and 2000. He received a special custodial sentence of 19 years, comprising 18 years’ imprisonment and one year’s extended licence under the Criminal Justice Act 2003.

Following refusal by the single judge, he renewed applications for an extension of time and leave to appeal against conviction. He relied on proposed fresh photographic and video evidence concerning the layout of the property, the absence of a lies direction, the adequacy of the delay direction, and trial counsel’s failure to call character evidence. The central issue was whether any ground, separately or cumulatively, rendered the convictions unsafe.

1. The court refused both renewed applications. None of the four grounds, alone or together, provided a sufficient basis to challenge the safety of the convictions.

2. The proposed fresh evidence concerning the loft area might show that the alleged act on count 3 would have been difficult. It did not show that it was impossible. Even assuming a reasonable explanation for not producing it at trial, it would not have undermined the complainant’s overall credibility or affected the jury’s conclusion.

3. A formal lies direction in accordance with R v Lucas 73 Cr App R 159 was not appropriate in every case and was within the trial judge’s discretion. Trial counsel had a rational tactical reason not to seek one, since it could have highlighted both the applicant’s admitted lie and other inconsistent evidence. A standard adverse-inference direction had also been given under section 34. Although a lies direction might have been given, its absence did not undermine the safety of the convictions.

4. The delay direction had been discussed with and agreed by counsel. A direction must fit the circumstances of the trial; it need not reproduce every suggested component of the Crown Court Compendium. The direction given was not open to proper criticism.

5. Trial counsel’s decision not to call character witnesses was a reasoned tactical choice. Calling them risked damaging the enhanced good-character direction already available to the applicant. A different forensic choice did not establish that the verdicts might have been affected.

• Court of Appeal (Criminal Division): refused the renewed applications for an extension of time and leave to appeal against conviction.
• Crown Court at Leicester: convicted the applicant on 7 August 2017 of historical sexual offences and, on 22 September 2017, imposed a special custodial sentence under the Criminal Justice Act 2003.