Bolton, R. v

On an appeal involving fresh evidence, the court must assess whether that evidence affords a ground for allowing the appeal, viewed against the trial evidence as a whole. New evidence which narrows uncertain dates, reduces the possible relevance of medical records, or limits the opportunity for offending does not make convictions unsafe unless it creates a significantly different evidential emphasis or background. Medical symptoms consistent with abuse but more commonly attributable to constipation are not determinative. Their significance remains a matter for the jury, informed by expert evidence and the trial judge’s directions.

The appellant was convicted at Blackfriars Crown Court of nine counts of rape of a child and two counts of causing or inciting a child to engage in sexual activity. He appealed against conviction, relying on fresh evidence under section 23 of the Criminal Appeal Act 1968.

The new evidence concerned the likely date of the first alleged incident, renovation work at the appellant’s home, his relationship with his girlfriend, and medical records concerning the complainant’s abdominal and anal symptoms. The central question was whether that evidence afforded any ground for allowing the appeal and rendered the convictions unsafe.

Appeal dismissed.

1. The court proceeded on the basis that the fresh evidence had been admitted for the purpose of the application for permission to appeal. Under section 23(2)(b) of the Criminal Appeal Act 1968, the question was whether the evidence afforded any ground for allowing the appeal.
2. The new witnesses were generally accepted as truthful. However, the court regarded the girlfriend’s recollection that she was always with the appellant as unreliable in part. The evidence did establish her likely presence at the relevant gathering, the building works at the home, and the consequent effect on the household.
3. The medical records had to be considered in their full context. References to anal pain, bleeding and possible fissures occurred alongside abdominal pain, hard stools and working diagnoses of constipation. The expert evidence indicated that constipation was a more common cause. The court saw no reason to interfere with the trial judge’s discretion under section 78 of the Police and Criminal Evidence Act 1978 not to exclude the records.
4. The fresh evidence did not create a significantly different emphasis or background. It did not materially alter the jury’s assessment of the complainant’s uncertainty about dates, the medical evidence, the opportunity for offending, or the effect of the trial directions. Even assuming that the first incident occurred at the later date suggested, the medical evidence remained capable of being considered as the judge directed. The evidence concerning the appellant’s relationship and his scar did not contradict or undermine the allegations.
5. The convictions were not rendered unsafe. The appeal against conviction was dismissed.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed.
• Blackfriars Crown Court: The appellant was convicted on 17 October 2018 and sentenced on 9 November 2018 to a total of nine years’ imprisonment.