Nikki Anton Pike v R

A party seeking to add grounds to a criminal appeal must comply with the procedural requirements and justify any delay. A speculative assertion of false memory does not justify an appellate investigation or expert evidence without a sound factual foundation.

Evidence of a complainant’s earlier true allegation does not support a defence of fabrication without a logical or evidential connection. Its limited possible relevance to delay may nevertheless be a case-management matter for the trial judge. Allegations of judicial bias require an assessment of the summing up as a whole through the fair-minded and informed observer test.

The appellant appealed convictions for sexual offences against one complainant, committed when she was aged between 12 and 16. He was convicted following a trial before HHJ Rochford at Aylesbury Crown Court and received a total sentence of 18 years’ imprisonment.

The appeal challenged the exclusion of material concerning the complainant’s separate allegations against another man, the fairness of the summing up, and alleged pressure placed on the defence. The appellant also sought permission to advance further grounds concerning false memory, corroboration, disclosure and other matters.

The central issues were whether the trial had been unfair and, in any event, whether the convictions were safe.

1. Appeal dismissed. The Court refused permission to advance the further grounds. An applicant seeking to rely on a ground outside the appeal notice must apply by notice under Criminal Procedure Rules. Applying R v James [2018] EWCA Crim 285, the Court considered delay, its explanation, prior knowledge, efficient disposal and the interests of justice. The new matters could and should have been raised earlier.

2. The proposed false-memory ground was wholly speculative. There was no factual foundation that the complainant had confabulated her account, and no basis for an expert investigation at the appellate stage. A discretionary corroboration warning was also unwarranted: there was no evidence that the complainant was unreliable and no such warning had been sought at trial.

3. The trial judge was entitled to exclude the material concerning JH. The earlier allegations were true and therefore had no logical or evidential connection with a defence that the complainant had fabricated allegations against the appellant. Although the material might have had limited relevance to the timing of her disclosure, its exclusion was a permissible case-management decision. The suggested factual similarities were slight and did not establish relevance.

4. Applying the apparent-bias test in Porter v Magill [2001] UKHL 76, the Court held that none of the challenged comments in the summing up, separately or cumulatively, created a real possibility that the judge was biased. The summing up had to be read as a whole, including the directions that facts were for the jury. The acquittal on one count confirmed that the jury had acted independently.

5. The judge’s interventions during cross-examination, trial preparation and the defence closing speech were proper case management and caused no unfairness. Even if the JH material should have been admitted, the convictions remained safe. Its potential value was marginal, delay was already before the jury, and the prosecution case was strongly supported by electronic evidence and the appellant’s admitted sexual conduct towards the complainant.

• Court of Appeal (Criminal Division) — The appeal against conviction was dismissed: [2022] EWCA Crim 1501.
• Aylesbury Crown Court — On 28 June 2021, HHJ Rochford convicted the appellant of the relevant sexual offences. On 5 October 2021, the judge imposed a total sentence of 18 years’ imprisonment. Permission to appeal against sentence was refused and was not renewed.