R v Adam Provan

Quashing convictions in a separate case involving the same complainant does not automatically establish that an appellant is innocent or that the complainant was untruthful. The question is whether the new material could materially affect the safety of the conviction.

Where credibility is the central issue, the court must consider how the changed background could have altered the evidence, cross-examination and jury assessment. Evidence given by other witnesses is not truly independent support if its ultimate source is the complainant. An appeal may therefore succeed without the court predicting the verdict a properly informed jury would have reached.

The appellant was convicted at the Crown Court at Wood Green of two counts of rape after a retrial. He sought an extension of 832 days to appeal and permission to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The fresh evidence concerned the quashing of the convictions of Darryl White, who had faced separate allegations involving the same complainant.

Grounds 1 and 2 alleged that the quashing of those convictions materially undermined the safety of the appellant’s convictions. Grounds 3 and 4 challenged, respectively, the admission of evidence concerning the other trial and evidence about the appellant’s relationship with another person. The central issue was whether the changed evidential background could have affected the jury’s assessment of the complainant’s credibility.

The Court granted the extension of time and the application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The fresh material related to the quashing of Darryl White’s convictions and had not reasonably been available earlier. Grounds 1 and 2 were plainly arguable.

1. Quashing convictions in separate proceedings involving the same complainant did not necessarily establish that the appellant was innocent or that the complainant was not credible. The offences were separate and different.
2. Nevertheless, the quashing had a material impact on the safety of the convictions. If it had been known at trial, the agreed facts, the cross-examination of the complainant and the appellant, and the jury’s assessment of the evidence could all have been materially different. The Court would not speculate about the result a properly informed jury would have reached.
3. The prosecution’s suggested independent evidence did not establish a strong case independent of the complainant. The evidence concerning the appellant’s age, earlier complaints, the dance teacher’s evidence, the complainant’s boyfriend, the car and the timing of the return home ultimately depended on information or assumptions derived from the complainant or did not provide the claimed support.
4. Ground 3 was refused as a separate ground. The evidence concerning the other conviction, trial and sentence had been placed before the jury by agreement, and the trial judge could not properly be criticised for admitting it. Ground 4 also disclosed no arguable basis for interfering with the trial judge’s discretion to admit evidence about the appellant’s relationship with another person.

The appeal was allowed on grounds 1 and 2 and both convictions were quashed. A retrial was ordered in the interests of justice. The Court directed service of a fresh indictment under section 8(1) of the Criminal Appeal Act 1968 and rule 10.8(2) of the Criminal Procedure Rules, with a draft indictment to be served within 28 days and re-arraignment within two months. Bail was granted on the previous conditions, subject to confirmation of the address, and reporting was restricted under section 4(2) of the Contempt of Court Act 1981 until the retrial concluded.

• Court of Appeal (Criminal Division): [2022] EWCA Crim 248 — extension of time and admission of fresh evidence granted; leave refused on grounds 3 and 4; appeal allowed on grounds 1 and 2; convictions quashed and retrial ordered.
• Crown Court at Wood Green: the appellant was convicted by a majority on 29 November 2018 and sentenced on 30 November 2018 to concurrent terms of nine years’ imprisonment. The conviction followed an earlier retrial after the first jury could not reach verdicts.