Mehta, R v

On an appeal based on fresh evidence, the Court of Appeal must decide whether the conviction is unsafe. In a case of difficulty, it is ordinarily appropriate to test that assessment by asking whether the evidence, if available at trial, might reasonably have affected the jury’s decision to convict.

Clear evidence that a complainant lied on oath may carry materially greater significance than inconsistencies capable of innocent explanation. A conviction may also be unsafe where a complainant’s false information obstructed enquiries directed by the trial judge for the defence’s proper preparation.

The appellant, a general practitioner, was convicted at Birmingham Crown Court of sexual assault on an unregistered walk-in patient. He was acquitted of a separate sexual-assault count involving another complainant and was sentenced to 15 months’ imprisonment.

The appeal concerned fresh evidence relating to the complainant’s credibility. A signed pre-trial statement showed that her denial on oath that her friend was the father of her twins was false. She had also supplied false contact details for her apparent mother-in-law, frustrating enquiries directed by the trial judge following a disclosure application.

The central issue was whether those defects meant that the conviction was unsafe.

1. Appeal allowed; conviction quashed. The court held that the combined defects before and at trial meant that the conviction could not safely stand.

2. The signed statement, though not made on oath, would have enabled the defence to demonstrate that the complainant’s sworn denial concerning her relationship with NM and the paternity of her twins was a lie. That was materially different from inconsistencies which might have an honest explanation. It could have been used to challenge her credibility, her account of the relevant events and timing, and her possible reason for concealing the relationship.

3. The absence of that material also deprived the trial judge of the opportunity to consider a discretionary warning under the guidance in R v Makanjuola [1995] 3 All ER 730. The court did not decide what warning should have been given, but regarded the lost opportunity as significant.

4. The complainant’s false information about her apparent mother-in-law was especially serious because it obstructed police enquiries made at the trial judge’s direction following an application under section 8 of the Criminal Procedure and Investigations Act 1996. The unfairness lay in impeding the defence’s proper preparation. It was unnecessary to determine what further use the defence might have made of the information or to conduct satellite litigation about the underlying immigration allegations.

5. Applying the approach in R v Pendleton [2002] 1 WLR 72, the court concluded that the defects were sufficiently significant for the conviction to be unsafe. The Crown did not seek a retrial.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction.
• Crown Court at Birmingham: On 6 April 2018 the appellant was convicted of sexual assault on count 2 and acquitted on count 1. On 27 April 2018 he was sentenced to 15 months’ imprisonment.