R v Darryl White

On an appeal involving fresh evidence, the Court of Appeal must decide for itself whether a conviction is safe. The likely effect on a jury is a useful check, but it is not the legal test. A written good-character direction may not cure an oral deficiency in the summing-up. Whether that deficiency makes a conviction unsafe depends on all the circumstances.

Where credibility is central, fresh material that substantially challenges a precise allegation and an asserted alibi may affect both cross-examination and the assessment of supporting evidence. The cumulative effect may therefore render convictions unsafe.

The appellant had been convicted at the Crown Court at Snaresbrook of three offences of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003. He received concurrent sentences totalling six years’ imprisonment.

Permission to appeal was granted out of time after the full court concluded that fresh evidence could be admitted under section 23 of the Criminal Appeal Act 1968. The appeal concerned an omitted oral good-character direction and fresh photographic and vehicle-hire evidence. The central issue was whether, cumulatively, those matters rendered the convictions unsafe in a case turning on the complainant’s credibility and the appellant’s alleged presence at particular times.

1. The appeal was allowed. The three convictions were quashed. The Crown’s application for a retrial was refused because a retrial would not be in the interests of justice, not least as the appellant had effectively served his sentence.
2. The statutory question was whether the convictions were safe. That was for the Court of Appeal to decide for itself after considering the fresh evidence. The possible effect of the material on the jury was relevant as a check, but did not replace the court’s own assessment.
3. The judge’s treatment of good character was deficient. Although the written directions correctly contained both limbs of the standard direction, the jury were not orally given that direction. The omission alone might not have made the convictions unsafe, but it had to be assessed with the fresh evidence and the central issue of credibility.
4. The photograph showing the appellant in West Yorkshire at 14.18 on 14 August 2008 was of crucial importance because the complainant had fixed that date as the date of the first sexual activity. Fresh documentation also established that the appellant’s access to a hire car had ended on 11 August. The Crown’s alternative explanation of travel to Romford consequently depended on speculation about another vehicle.
5. The fresh evidence could have materially affected the way in which the complainant was cross-examined. The other evidence relied on by the Crown was not independent of her account and was capable of being viewed consistently with the defence case. Taken cumulatively with the deficient direction, the fresh evidence caused the court to conclude that the convictions were unsafe.

• Court of Appeal (Criminal Division) — the appeal was allowed in [2021] EWCA Crim 1423; the convictions were quashed and a retrial was refused.
• Crown Court at Snaresbrook — on 1 June 2018 the appellant was convicted of three offences of sexual activity with a child. On 8 June 2018 he received concurrent sentences totalling six years’ imprisonment.