SB, R v

Admission of a complainant’s post-conviction retraction as fresh evidence under section 23 of the Criminal Appeal Act 1968 does not itself make a conviction unsafe. The appellate court must assess the retraction cumulatively with the original evidence and the circumstances in which each account was given. A retraction may properly be rejected where it conflicts with detailed and consistently maintained original allegations, and its explanation is implausible or unreliable. If the fresh evidence supplies no proper basis to reject the evidence accepted by the jury, the convictions remain safe.

The appellant was convicted at Snaresbrook Crown Court of four counts of assault of a child under 13 by penetration. The complainant’s recorded interview was played as her evidence in chief, and she maintained the allegations at trial. The jury convicted on all counts.

After conviction and sentence, the complainant made a signed statement retracting all allegations and asserting that they had been fabricated. The appellant appealed on the basis that this fresh evidence made the convictions unsafe. The Court of Appeal received the retraction and further oral evidence, including evidence from the complainant, her mother and the investigating officer.

The central issue was whether the retraction was sufficiently reliable to undermine the evidence accepted by the jury and render the convictions unsafe.

1. Appeal dismissed. The court granted leave to adduce the fresh evidence under section 23 of the Criminal Appeal Act 1968 and granted leave to appeal. It nevertheless concluded that the convictions were safe.
2. The complainant’s retraction was demonstrably unreliable. Her original account in the recorded interview was detailed, coherent and consistent. She had maintained it to her mother, counsellor and police, and again at trial after opportunities to withdraw it. Her later assertion that the allegations had been invented was difficult to reconcile with that history.
3. The court rejected the evidence of the complainant and her mother that police had prevented or discouraged a withdrawal of the allegations. Those assertions had not appeared in their earlier statements, were implausible, and were contradicted by the reliable evidence of the investigating officer. The court also rejected the suggestion that police had said the case would be unlikely to reach court.
4. The court accepted the evidence of the investigating officer and trial counsel that no indication of a wish to withdraw the allegations had been given before sentence. The timing and circumstances of the retraction did not establish that the original allegations were false.
5. There was therefore no proper basis for rejecting the complainant’s original evidence, which had been tested at trial and accepted by the jury. The subsequent retraction did not undermine the safety of the four convictions.

• Court of Appeal (Criminal Division). The court admitted fresh evidence, granted leave to appeal, and dismissed the appeal against conviction: [2019] EWCA Crim 565.
• Crown Court at Snaresbrook. The appellant was convicted on 5 February 2018 of four counts of assault of a child under 13 by penetration and sentenced on 16 March 2018.