Carroll, R. v

On an application to adduce fresh evidence, the court must apply the factors in section 23(2) of the Criminal Appeal Act 1968. Evidence said to show that a prosecution witness has a propensity to make false allegations requires careful scrutiny. It should be cogent, capable of proof, directed to that witness, and sufficiently close in time to the events or trial. Later, unproved and hearsay allegations arising from neighbourhood disputes may raise suspicion, but do not provide substantial probative material capable of undermining the safety of a conviction. The prospect of extensive satellite litigation is also relevant to admissibility and value.

The applicant had been convicted by a jury at Blackfriars Crown Court on 13 May 2011 of racially aggravated harassment contrary to section 32(1)(a) of the Crime and Disorder Act 1998. The prosecution depended substantially on the evidence of his neighbour, Ms Rahman, who alleged three incidents of racist abuse in July 2010.

He applied out of time for leave to appeal and sought to adduce fresh evidence. That material comprised oral evidence, witness statements, police crime reports and a child-and-family assessment report. He contended that it showed Ms Rahman had a propensity to make false allegations against neighbours. The central issue was whether the material satisfied the relevant considerations under section 23(2) of the Criminal Appeal Act 1968 and could cast doubt on the safety of the conviction.

1. The court refused leave to adduce the fresh evidence and dismissed the application for leave to appeal against conviction.

2. Under section 23(2) of the Criminal Appeal Act 1968, the material questions were whether the evidence was capable of belief in the required sense and whether it could afford a ground for allowing the appeal. Assertions that a witness has acted untruthfully outside the trial process require caution. Cogent evidence, such as an admission of lying or a perjury conviction, is materially different from suspicion, rumour and unproved allegations.

3. The material relied on did not establish that Ms Rahman had fabricated allegations. Much of it did not distinguish between her conduct and that of her husband, was hearsay or multiple hearsay, and concerned events years after the 2010 incidents and the 2011 trial. The evidence at most raised a suspicion. It did not prove the propensity for which it was advanced.

4. The court also noted that evidence of later alleged misconduct would require an admissibility gateway under section 100 of the 2003 Act. Its unproved nature would require evidence both that complaints had been made and that they were false, creating undesirable satellite litigation. The case was materially weaker than R v. Brewster and Cromwell [2010] 2 Cr App R. 20, where the proposed material was a complainant’s conviction for serious offending. The court drew support from R v. Simmons (Darren) [2018] EWCA Crim 2534 on the risk of an excessive excursion into collateral allegations.

5. Viewed cumulatively, the material was not capable of belief as proof of the alleged propensity and afforded no proper ground for allowing the appeal or questioning the conviction’s safety.

• Court of Appeal (Criminal Division). In [2019] EWCA Crim 1396, the court refused leave to adduce fresh evidence and dismissed the application for leave to appeal against conviction.
• Blackfriars Crown Court. On 13 May 2011, a jury convicted the applicant of racially aggravated harassment. No citation for that decision was stated in the judgment.