THE QUEEN v PHILIPPE SOSSONGO

A later diagnosis of ASD or ADHD does not by itself make a conviction unsafe. The appellate court must identify the issues at trial to which the fresh evidence would have been relevant and assess its likely impact. Where credibility and alleged secondary participation are central, such evidence may bear on memory, processing, interpretation of others’ intentions, consequential thinking and presentation in the witness box. A transcript may not capture the impression created by demeanour and body language. If the jury lacked material information needed to assess the defendant fairly, particularly where another defendant received intermediary, expert and judicial assistance, the conviction may be unsafe. A retrial may be ordered where the interests of justice and the public interest require it.

The appellant was convicted at the Central Criminal Court of murder, wounding with intent and attempted wounding with intent arising from a stabbing incident when he was aged 14. He was convicted as a secondary party. Leave to appeal against conviction had previously been refused by the Full Court: [2018] EWCA Crim 2168. After later diagnoses of ASD and ADHD, the Criminal Cases Review Commission referred the convictions to the Court. The issue was whether fresh expert evidence showed that the jury had been unable fairly and reliably to assess the appellant’s credibility, understanding, intentions and alleged involvement, including in the light of the safeguards given to a co-defendant with similar conditions.

Appeal allowed. The Court received the unchallenged reports concerning ASD and ADHD as fresh evidence under section 23 of the Criminal Appeal Act 1968, concluding that it was in the interests of justice to do so.

1. Approach to fresh evidence. A subsequent diagnosis does not automatically render a conviction unsafe. The court must identify the issues at trial to which the fresh evidence would have been relevant and assess its likely impact. The Court applied that approach, referring to R v Grant-Murray and others, [2017] EWCA Crim 1228.
2. Impact on the jury’s assessment. The central questions were whether the jury could fairly and reliably assess the appellant’s credibility and his involvement in the relevant events. His conditions could have affected his recollection, processing of information, interpretation of the actions and intentions of others, consequential thinking and ability to understand the significance of events. They could also have affected the necessary finding that he intended really serious bodily harm.
3. Presentation at trial. The appellant’s evidence was almost the only live evidence bearing on his case. The transcript could not convey the overall impression created by demeanour, body language and facial expression. Cross-examination and difficulty moving between topics might have made him appear evasive or shifty when those features could have resulted from ASD or ADHD. The jury therefore lacked information capable of materially affecting its assessment of credibility.
4. Unequal safeguards. The co-defendant M had received an intermediary, expert evidence and a tailored judicial direction because his ADHD and autistic traits were known. The appellant had received none of those safeguards. The contrast could have falsely reassured the jury that he had no comparable disadvantage. His alleged gang membership and possession of knives might also have been assessed differently had the jury known of his conditions.
5. The fresh evidence might have been decisive. The convictions for murder, wounding with intent and attempted wounding with intent were unsafe and were quashed. The Court ordered a retrial because the interests of justice and the public interest outweighed the appellant’s interests. It also directed service of a fresh indictment, arraignment within two months, continued custody subject to bail application to the Crown Court, and postponement of publication under the Contempt of Court Act 1981.

1. Court of Appeal (Criminal Division) — Following a referral by the Criminal Cases Review Commission, the convictions were quashed and a retrial was ordered.
2. Court of Appeal (Criminal Division) — The appellant’s sentence appeal was previously allowed after fresh evidence was admitted, reducing the minimum term; [2019] EWCA Crim 2286; [2020] 2 Cr App R (S) 9.
3. Court of Appeal (Criminal Division) — The renewed application for leave to appeal against conviction was refused; [2018] EWCA Crim 2168.
4. Central Criminal Court — The appellant was convicted of murder, wounding with intent and attempted wounding with intent following trial before HHJ Leonard QC and a jury, and was sentenced to detention during Her Majesty’s pleasure with a 14-year minimum term.