REGINA v GARETH HEAD

Where the prosecution fails to disclose material evidence about a complainant, later disclosure may justify admitting it as fresh evidence and quashing a conviction. Under Criminal Appeal Act 1968, section 23, the court considers credibility, availability, admissibility and whether the evidence may afford a ground for allowing the appeal. A complainant’s later drug convictions may be admissible under Criminal Justice Act 2003, section 100(1)(b), where they have substantial probative value on a matter of substantial importance. The safety question is whether there is a real possibility that the jury would have reached a different verdict. Evidence need not address every issue: it may make the defence account more plausible and indirectly undermine the complainant’s credibility on the central issue.

Following a retrial at the Crown Court at Basildon, Gareth Head was convicted of assault occasioning actual bodily harm and sentenced to a community order. After conviction, the complainant’s Police National Computer record disclosed convictions for cannabis possession and driving with excess cannabis in the system, despite earlier prosecution statements that there were no convictions. Head sought an extension of time, leave to adduce the record as fresh evidence, and leave to appeal. The issues were whether the evidence was admissible and capable of affecting the safety of the conviction, and whether its absence from trial required the conviction to be quashed.

The appeal was allowed. The fresh evidence was admitted and the conviction was quashed. The Crown subsequently confirmed that it did not seek a retrial.

1. The applications were considered together because the late disclosure caused the delay and the issues overlapped. The court treated the present case as an exception to the general practice described in R v Cross [2014] EWCA Crim 96. The extensions of time were granted.
2. Applying section 23 of the Criminal Appeal Act 1968, the court found that the convictions were credible, could not reasonably have been obtained before trial, would have been admissible, and might afford a ground for allowing the appeal. Under section 100(1)(b) of the Criminal Justice Act 2003, they had substantial probative value concerning whether the complainant had used cannabis and whether that affected his fitness to drive. Those matters were of substantial importance in the case as a whole.
3. Later misconduct may be relevant to propensity at an earlier time. The passage of time affects weight but does not itself require exclusion. The evidence must be excluded where the proposed inference would be mere speculation. The court applied the principles discussed in R v Adenusi [2006] EWCA Crim 1059 and R v Richards [2018] EWCA Crim 2374.
4. For a non-disclosure case of this kind, the court held that the McInnes v Her Majesty’s Advocate [2010] UKSC 7 test was appropriate: whether there was a real possibility that the jury would have reached a different verdict. The approach was treated as settled in R v Kelly (Richard) [2015] EWCA Crim 500. The court also applied the general fresh-evidence approach identified in Dial v The State of Trinidad and Tobago [2005] 1 WLR 1660, as supplemented by R v Nealon [2014] EWCA Crim 574. The appeal succeeded under either approach.
5. The convictions could make the applicant’s account of smelling cannabis, being concerned about the complainant’s fitness to drive, and using force to prevent an offence more plausible. They could also indirectly damage the complainant’s credibility on how his injuries were caused. The fresh evidence therefore created a real possibility of a different verdict and rendered the conviction unsafe.

Crown Court at Basildon: Following a retrial, a jury convicted Gareth Head of assault occasioning actual bodily harm and imposed a 12-month community order.

Court of Appeal (Criminal Division): Extensions of time were granted, leave to appeal was granted, the fresh evidence was admitted, the appeal was allowed and the conviction was quashed. The Crown did not seek a retrial.