Ferdos Rabani v Regina

On an appeal based on fresh evidence, the Court of Appeal must decide for itself whether the conviction is unsafe. The possible effect of the evidence on the jury is a useful check, but it is not the determinative question.

Under section 23 of the Criminal Appeal Act 1968, the court must consider in particular whether the evidence is capable of belief, may afford a ground for allowing the appeal, would have been admissible at trial, and has a reasonable explanation for not having been adduced. Evidence which is not capable of belief should not be admitted, even where, if true, it could undermine the conviction.

The applicant was convicted of rape at Sheffield Crown Court on 21 November 2016 and was sentenced on 12 April 2017 to an extended determinate sentence. More than four years later, he sought an extension of time and permission to appeal.

The proposed appeal relied on fresh evidence from Timothy Doyle, who had given evidence at trial as the complainant’s boyfriend. Mr Doyle now alleged that the complainant had later told him that no sexual intercourse had occurred. The complainant denied making that admission.

The central issues were whether Mr Doyle’s further evidence should be received under section 23 of the Criminal Appeal Act 1968 and, if so, whether it rendered the conviction unsafe.

1. The applications for an extension of time and permission to appeal were dismissed. The court refused to receive Mr Doyle’s further evidence as fresh evidence because it was not capable of belief.

2. Section 23 of the Criminal Appeal Act 1968 required consideration of the evidence’s apparent credibility, its potential to afford a ground of appeal, its admissibility at trial, and the explanation for its absence from the trial. The court accepted that, if true, Mr Doyle’s allegation could found an appeal; that it would have been admissible; and that the applicant could not have adduced an alleged conversation of which he was unaware. The decisive issue was credibility.

3. The court found Mr Doyle’s evidence unreliable. He honestly but mistakenly failed to remember a police visit concerning the matter. His account of when the alleged admission occurred differed materially between his letter, witness statements and oral evidence. He delayed substantially before reporting it, gave inconsistent accounts of the complainant’s fear after the incident, and attributed an alleged fabrication to motives which did not fit the evidence.

4. The alleged admission was also inconsistent with contemporaneous material, including the complainant’s earlier disclosures and text messages. The court concluded that Mr Doyle had convinced himself that the conversation occurred, but did not accept that it had occurred.

5. Following R v Ahmed [2010] EWCA Crim 2899, the court confirmed that it must itself decide whether fresh material makes a conviction unsafe. The potential effect on a jury is only a check on that assessment. The inconsistencies concerning the timing of Mr Doyle’s relationship with the complainant, and her later hostility to the appeal, did not cause the court to doubt the safety of the conviction.

• Court of Appeal (Criminal Division) — refused to admit the proposed fresh evidence and dismissed the applications for an extension of time and permission to appeal against conviction.

• Sheffield Crown Court — convicted the applicant of rape on 21 November 2016 and, on 12 April 2017, imposed an extended determinate sentence.