Hardy, R. v

Fresh evidence in a criminal appeal should be admitted under the Criminal Appeals Act 1968, s 23(1)(c), where it is capable of belief, would have been admissible at trial and receipt is necessary or expedient in the interests of justice. Uncertainty about whether deleted digital messages could have been retrieved earlier does not prevent admission where the delay was not the applicant’s fault. The safety of each conviction must then be assessed separately. Evidence undermining one count will not necessarily undermine convictions arising from different circumstances and periods. A rape complainant is not required to justify the reason for refusing intercourse.

The applicant was convicted at Great Grimsby Crown Court on five counts of rape and acquitted of two counts of rape and one count of sexual assault. He received concurrent extended sentences of 20 years. After conviction, forensic examination of his seized telephone reconstructed deleted messages between him and the complainant. He applied, 2,022 days out of time, to admit the reports as fresh evidence, obtain permission to appeal and challenge the safety of the convictions. The Crown accepted that the evidence was new, but disputed its relevance and argued that the applicant could have given evidence about the messages at trial. The central issues were whether the fourth report should be admitted and whether the messages rendered any convictions unsafe.

The court granted the extension of time, admitted the relevant fresh evidence and granted permission to appeal.

1. Fresh evidence. The first three forensic reports did not advance the applicant’s case and were not admitted. The fourth report contained reconstructed messages that appeared capable of belief, would have been admissible at trial and could afford a ground of appeal. Under s 23(1)(c) of the Criminal Appeals Act 1968, it was necessary and expedient in the interests of justice to receive that evidence. The uncertainty about whether the messages had been identified or could have been retrieved before trial did not justify exclusion, particularly since the delay was not the applicant’s fault.
2. Counts 6 and 7. Messages sent after the York trip were capable of undermining the complainant’s allegation concerning Count 6. The appellant’s denial that intercourse occurred did not answer the point because the conviction depended significantly on the complainant’s evidence. The impact on Count 7 was less direct, but the messages were capable of undermining the stated reasons for withholding consent during that period. The presence of the complainant’s child and her fear of pregnancy did not appear to have prevented consent in York, while messages referred to her desire to become pregnant. Both convictions were therefore unsafe.
3. Remaining counts. The messages did not undermine Counts 2, 4 or 8. Those counts concerned different circumstances and periods. The evidence relating to pregnancy, health and sexually transmitted disease remained capable of supporting the convictions, and the messages relevant to Count 8 were consistent with the complainant’s account.
4. The court assessed the verdicts count by count. The acquittals on Counts 1, 3 and 5 indicated that the jury had followed the direction to consider each count separately. That analysis did not require a rape complainant to justify the reason for refusing intercourse.

The appeal against conviction was allowed in relation to Counts 6 and 7 and dismissed in relation to Counts 2, 4 and 8. Time was extended for any application for permission to appeal against sentence, which had to be made in writing within 28 days.

• Great Grimsby Crown Court: The applicant was convicted on 30 January 2015 of five counts of rape and acquitted of two counts of rape and one count of sexual assault. On 26 February 2015 he received concurrent extended sentences of 20 years.
• Court of Appeal (Criminal Division): The court granted an extension of time and permission to appeal, admitted fresh evidence, allowed the appeal on Counts 6 and 7, and dismissed it on Counts 2, 4 and 8: [2021] EWCA Crim 635.