Ali, R v

An applicant seeking to add grounds after refusal by the single judge must apply to vary the grounds and overcome a high hurdle. A court may nevertheless consider the position of an unrepresented applicant.

Different jury verdicts do not render a conviction unsafe where there is a rational basis for treating each count separately. Allegedly deficient representation does not make a conviction unsafe where the defence was competently conducted and the alleged omissions were reasonable tactical decisions. Under section 23 of the Criminal Appeal Act 1968, proposed fresh evidence may be rejected where its earlier non-use lacks a reasonable explanation and the evidence would undermine the defence case.

The applicant was convicted at Bristol Crown Court, following a retrial, of rape on 4 June 2017. The jury acquitted him of three other rape counts. The prosecution case included still and video footage showing the complainant in a deeply asleep or unconscious-looking state while the applicant had sexual intercourse with her.

His defence was that all sexual activity was consensual and that the complainant had permitted intercourse while asleep. The single judge refused leave to appeal against conviction. On renewal, the applicant challenged the consistency of the verdicts and the adequacy of his trial representation. He also sought to vary his grounds and adduce a recording of a telephone conversation as fresh evidence.

The central issue was whether any of those matters gave an arguable basis to challenge the safety of the conviction.

1. The court refused both the application to vary the grounds of appeal and the renewed application for leave to appeal against conviction.

2. The differing verdicts were not arguably inconsistent. The jury had been correctly directed to consider each count separately. The evidence concerning 4 June 2017, including the complainant’s condition over about an hour and the applicant’s knowledge of her earlier report to the police, provided an ample rational basis for conviction on that count even if the jury were not sure about earlier incidents.

3. There was no basis for alleging incompetent representation. The complainant’s credibility had been thoroughly tested in cross-examination. The applicant had given frequent instructions and had not expressed dissatisfaction during either trial. The matters now said to have been omitted included material capable of damaging the defence. The court could not identify any failure capable of casting doubt on the safety of the guilty verdict.

4. The court applied section 23 of the Criminal Appeal Act 1968 to the proposed recording. It assumed for present purposes that the recording was genuine, but found no reasonable explanation for its non-use at trial. It had not been provided to the trial solicitors, although it could have been. In any event, the recording was inconsistent with the defence that the complainant had always consented and contained material capable of proving at least one rape. Trial representatives had reasonably concluded that it should not be adduced.

5. Following R v James [2018] EWCA Crim 285, late additional grounds required an application to vary and faced a high hurdle. The applicant’s unrepresented status justified exceptionally hearing his submissions, but did not supply an arguable challenge to the conviction.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction, and the application to vary the grounds, were refused.
• Single judge: Leave to appeal against conviction was refused on 7 February 2019.
• Crown Court at Bristol: Following a retrial, the applicant was convicted of rape on 2 February 2018. He was acquitted of the other three rape counts.