R v ABY

Later allegations made by a complainant do not render an earlier conviction unsafe unless they materially undermine the reliability of the evidence given at trial. The court must assess the new material in its full evidential context, including contemporaneous records, the complainant’s condition at the relevant time, and the warnings given to the jury. Evidence from a treating psychiatrist about symptoms, treatment and presentation remains admissible where it does not give a prohibited diagnosis or causally link the illness to the alleged offending. A renewed ground previously rejected on appeal requires cogent new evidence or argument not previously properly developed.

The appellant was convicted at Manchester Crown Court in May 2013 of specimen counts of rape and sexual assault of a child under 13, and cruelty to a person under 16. He received an overall sentence of 18 years’ imprisonment.

In 2014 the Court of Appeal dismissed his conviction appeal and substantially dismissed his sentence appeal, reducing one cruelty sentence without changing the overall term: [2014] EWCA Crim 1555. The Criminal Cases Review Commission later referred the convictions after material emerged concerning allegations made by X against a nursing assistant and against an unidentified man.

The appellant contended that this material undermined X’s credibility and that expert psychiatric evidence at trial had exceeded the judge’s ruling. The central issue was whether the new material, separately or together with the renewed evidential complaint, rendered the convictions unsafe.

1. The appeal was dismissed. The new material did not undermine the safety of the convictions. The court’s review of the hospital notes showed that they were neither consistently contemporaneous nor comprehensive. They did not demonstrate that X’s allegations concerning P were false. Nor were the differences in X’s accounts of the knife incident irreconcilable.

2. The evidence of P’s social connection with X and her mother did not provide a realistic basis for supposing that X had fabricated allegations against the appellant to secure P as a father figure. The jury had already received a strong Makanjoula direction, requiring considerable caution because X’s evidence was central, she had serious mental illness, and there was no independent corroboration. The later allegations against unidentified perpetrators were instead suggestive of subsequent serious mental ill-health. They did not establish unreliability when X made her allegations or gave evidence at the appellant’s trial.

3. The court upheld the earlier competence determination. It had been based on expert evidence and contemporaneous material, and the later allegations did not taint it. The court also rejected the assertion that Dr Atkin had exceeded the trial judge’s limits. Her evidence concerned X’s symptoms, treatment and presentation, not a diagnosis of post-traumatic stress disorder or a causal opinion that abuse had occurred. Her references to trauma, read in context, did not make the evidence unfair or highly prejudicial.

4. Although, exceptionally, a previously rejected ground may be renewed where there is cogent new evidence or argument, the transcript did not show any error in the 2014 decision. The renewed application for leave to appeal on the expert-evidence ground was therefore refused.

• Court of Appeal (Criminal Division): On a CCRC reference, dismissed the appeal against conviction and refused leave to advance a renewed expert-evidence ground: [2024] EWCA Crim 944.
• Court of Appeal (Criminal Division): Previously granted leave but dismissed R v ABY’s conviction appeal and reduced one cruelty sentence by two years without changing the overall sentence: [2014] EWCA Crim 1555.
• Crown Court at Manchester: Convicted the appellant in May 2013 and imposed an overall sentence of 18 years’ imprisonment.