R v HCF

When considering fresh evidence under the Criminal Appeal Act 1968, the statutory factors guide the court’s assessment but are not individually determinative. A genuine misunderstanding by counsel of a judge’s provisional indication may provide a reasonable explanation for evidence not being adduced at trial. Covert recordings and transcripts may be admissible, although the trial judge should establish clear ground rules for questioning a child about them. Questions concerning manipulation, incomplete recording, power imbalance and weight should be assessed fairly, particularly where the evidence may materially affect credibility and the safety of the conviction. Where the evidence is admissible and capable of undermining the prosecution case, the conviction may be unsafe and the appeal allowed.

The appellant was convicted of five assaults by beating and one sexual assault against his wife. His daughter, H, gave important supporting evidence. Before trial, the appellant had covertly recorded conversations in which H made statements inconsistent with her evidence. Those recordings and transcripts were not used because defence counsel mistakenly understood comments at a remote ground rules hearing to be a ruling that they were inadmissible.

The appellant applied under section 23 of the Criminal Appeal Act 1968 to introduce the material as fresh evidence. The central issues were whether there was a reasonable explanation for its omission, whether it was capable of belief and admissible, whether it could afford a ground for allowing the appeal, and whether a retrial should be ordered.

The court allowed the appeal, quashed the convictions and ordered a retrial.

1. Fresh-evidence gateway. Section 23(1)(c) of the Criminal Appeal Act 1968 permits the Court of Appeal to receive evidence not adduced below where this is necessary or expedient in the interests of justice. The matters listed in section 23(2), including capability of belief, potential to afford a ground for allowing the appeal, admissibility at trial and a reasonable explanation for the omission, inform the decision but are not individually determinative.
2. Reason for non-use. The court found a reasonable explanation under section 23(2)(d). Counsel had genuinely misunderstood a judge’s provisional comments during a remote hearing and believed that the recordings had been ruled inadmissible. The court rejected the tentative suggestion that the application should have been renewed at trial. That would have been unfair to H, who had not been questioned about the inconsistent statements.
3. Believability and significance. H’s statements to the appellant were not themselves disputed. Concerns about covert recording, manipulation, imbalance of power and incomplete conversations were matters affecting weight. The recordings were capable of undermining the prosecution case and were materially relevant because H’s evidence could have been decisive between the competing accounts.
4. Admissibility and safeguards. The recordings and transcripts were admissible. The trial judge would, however, need to establish clear ground rules governing the form and extent of questioning, with reference to R v PMH [2019] 1 Cr App R(S) 27. The ultimate assessment of the evidence and its effect on the competing accounts remained matters for the jury.
5. Disposition. It was expedient and in the interests of justice to admit the fresh evidence. The conviction was therefore unsafe. The court ordered a retrial on the same counts, directed service of a fresh indictment under Rule 10.8(2) of the Criminal Procedure Rules and required re-arraignment within two months. The prosecution subsequently offered no evidence, so no retrial took place.

• Trial court. The appellant was convicted of five assaults by beating and one sexual assault and received a 12-month community sentence.
• Court of Appeal (Criminal Division). The court admitted the fresh evidence, found the conviction unsafe, allowed the appeal and quashed the convictions. A retrial was ordered.
• Subsequent event. The prosecution offered no evidence and consequently no retrial took place.