R v Josh Abbott

Late disclosure does not by itself make a conviction unsafe. The question is whether the prosecution failure caused material prejudice that trial procedures did not cure. Where highly relevant evidence emerges only after the complainant has given evidence, and connected records remain missing, the defence must have a proper opportunity to exclude or challenge it, investigate its significance and obtain appropriate expert evidence. The jury must receive an adequate warning about the late disclosure, missing material and risks of relying on the evidence. A conviction is unsafe where those lost opportunities could have affected the result. The appeal was allowed, the conviction quashed and a retrial ordered.

The appellant was convicted of rape at the Crown Court at York on 30 March 2022 and sentenced to four years’ imprisonment on 28 April 2022. The prosecution case concerned an alleged second act of sexual intercourse after an earlier consensual act, contrary to section 1(1) of the Sexual Offences Act 2003.

During cross-examination, the complainant unexpectedly disclosed that she had attended a sexual assault referral centre and that injuries had been recorded. The Crown then produced a body map during the trial, after the complainant had given evidence. Other potentially relevant records, including notes and photographs, were not disclosed. The appeal concerned disclosure failures, the resulting prejudice and the adequacy of the judge’s directions to the jury.

Appeal allowed. The court quashed the conviction and ordered a retrial.

1. The body map was highly relevant to the single issue in the case and was disclosed only after the complainant had given evidence. Other SARC material remained missing. The late disclosure deprived the defence of a proper opportunity to challenge the document, investigate its significance and consider whether it supported or undermined the complainant’s account.
2. The court accepted that the defence could, and perhaps should, have applied under section 78 of the Police and Criminal Evidence Act 1984 to exclude the body map. If exclusion had been refused, an application to discharge the jury or adjourn the trial could have allowed the defence to consider the document and respond to the manner in which it had emerged.
3. If the body map were admitted, the defence should have had the opportunity to seek further SARC records and obtain independent medical evidence about whether the injuries were consistent with the complainant’s account. The judge should also have given a stronger direction warning the jury about the late disclosure, the missing records and the limited opportunity to investigate the injuries.
4. The simple fact of late disclosure was not determinative. The material question was the prejudice caused by the disclosure failure and whether it had been mitigated by available trial procedures. Here, the lost opportunities could have altered the outcome, so the court was not satisfied that the conviction was safe.
5. The court criticised the Crown’s preparation and disclosure failures but did not criticise either counsel, who had been placed in difficulty by the late disclosure. It also noted, for consideration at any retrial, that the judge had not directed the jury on consent or reasonable belief in consent. That observation was outside the grounds of appeal.

The appeal was allowed, the conviction was quashed under section 2(2), and a retrial was ordered under section 7. A fresh indictment was directed under section 8(1), with service of a draft indictment under Rule 10.8(2) of the Criminal Procedure Rules.

1. Court of Appeal (Criminal Division): The appeal was allowed, the conviction was quashed and a retrial on the single count of rape was ordered. A fresh indictment and re-arraignment directions were made. [2023] EWCA Crim 227.
2. Crown Court at York: The appellant was convicted on 30 March 2022 and sentenced to four years’ imprisonment on 28 April 2022.