R v AUV

Different tactical decisions by new lawyers do not establish an unsafe conviction. An appellant alleging incompetent representation must identify errors or irregularities that made the trial unfair or unsafe. Child-cruelty particulars may encompass a course of conduct: assault, ill-treatment, neglect, abandonment and exposure are not five watertight offences. A Brown direction is generally unnecessary where particulars do not correspond to separate essential ingredients and do not raise different defences. Fresh evidence may be refused where it was reasonably omitted at trial and adds no real basis for challenging the conviction. Expert evidence based on partial materials, speculative alternatives and no new science is inadequate. Balanced conditional expert evidence remains admissible. A document may be admitted following cross-examination on recent fabrication or, subject to statutory conditions, after refreshing memory under the Criminal Justice Act 2023.

After an 18-day trial at Norwich Crown Court, the appellant was convicted of 13 offences and sentenced to nine years’ imprisonment. She applied 377 days out of time for an extension, permission to appeal against conviction and admission of fresh evidence. The proposed grounds concerned alleged incompetence by trial lawyers, duplicity in a child-cruelty count, expert and complaint evidence, and failures to challenge witnesses and present the defence case. The central issues were whether the delay should be extended, whether the fresh evidence could support an appeal, and whether any alleged errors rendered the convictions unsafe.

The full Court refused the applications for an extension of time, admission of fresh evidence and permission to appeal.

1. Delay and alleged incompetence. The 377-day delay was exceptional, but the Court considered the merits rather than visit the applicant with the consequences of her new legal team’s approach. Applying R v Day [2003] EWCA Crim 1060, different tactical choices by new lawyers were insufficient. The appellant had to identify errors or irregularities which rendered the trial unfair or the convictions unsafe. That threshold was not met.
2. Fresh evidence. The additional character evidence was assumed capable of belief and admissible, but there was a reasonable explanation for not calling it and it did not significantly undermine the prosecution case. Dr White’s report was based on a partial review of the material, assumed the accuracy of supplied evidence, offered speculative alternatives and provided no new relevant science. It could not properly assist the jury or provide a ground of appeal.
3. Count 1 and duplicity. The statutory forms of child cruelty under section 1(1) of the Children and Young Persons Act 1933 were not five separate offences in watertight compartments. More than one incident could be included in a count where the incidents together constituted a course of conduct under rule 14.2(2) of the Criminal Procedure Rules. R v Cooper [2019] EWCA Crim 43 was distinguishable because inconsistent verdicts had caused concern. The principles in R v Young (1993) 97 Cr App R and R v Chilvers (Peter) [2021] EWCA Crim 1311 applied. A Brown direction was unnecessary because the particulars were not coterminous with separate essential ingredients, the defence was a complete factual denial, and the jury could assess the evidence as a whole.
4. Evidence and trial strategy. The relevant focus in the challenge to Dr Cutler was her oral evidence, not her report or the prosecution opening. Her balanced and conditional expert evidence did not determine the truth of the allegations and was admissible. Sarah Jessup’s document was admissible because she had been cross-examined upon it; the Court also explained the statutory route for memory-refreshing material under section 120 of the Criminal Justice Act 2023. Counsel’s decisions fell within the reasonable range of trial strategy. The remaining criticisms did not arguably undermine the safety of the convictions.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 11, the applications for an extension of time, admission of fresh evidence and permission to appeal against conviction were refused.
• Norwich Crown Court: On 4 October 2021, the appellant was convicted after an 18-day trial and sentenced to nine years’ imprisonment.
• Court of Appeal (Criminal Division): On 17 February 2022, a separate application by HM Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer the sentence as unduly lenient was refused.