R v UDS

On an appeal based on non-disclosure, the safety of a conviction must be assessed against the whole evidential and trial context. New material does not cast doubt on a conviction merely because it offers additional points of consistency or inconsistency. The material must materially weaken the safety of the verdict, having regard to evidence already available, the opportunities for cross-examination, and directions concerning lost material. Evidence of exposure to parental intercourse, childhood sexual experimentation, or lip-kissing by others is insufficient without a rational evidential link to the complainant’s ability to make the specific allegations or to fabrication.

The appellant was convicted by a majority at the Crown Court at Cardiff of four indecency offences concerning allegations made by a child. His first conviction appeal was dismissed. Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, previously undisclosed child-protection documents were obtained.

The documents suggested that the complainant may have witnessed her parents having sexual intercourse, had engaged in sexualised behaviour with a childhood friend before the alleged abuse, and had been kissed on the lips by her father. The central issue was whether that material, considered with the evidence available at trial, cast doubt on the safety of the conviction.

The appeal was dismissed. The court accepted that the Criminal Cases Review Commission had applied the correct test and that the reference was reasonable. The question on the appeal was whether the additional material cast doubt on the safety of the conviction.

1. Assessment in context. The alleged change to the evidential landscape had to be assessed against the substantial evidence already available, the evidence heard from the complainant and the appellant, the opportunities for cross-examination, and the trial judge’s directions concerning delay and missing material. The undisclosed material had to do more than provide marginal support for the defence or expose an inconsistency.
2. Parental intercourse and sleeping arrangements. The documents suggested that the complainant slept in the same room as her parents and may have seen them having intercourse. They did not provide an evidential basis for inferring that she acquired from that experience the knowledge needed to describe oral sex and masturbation as alleged. The defence could also have cross-examined on the possibility that she had witnessed sexual intercourse using material available at trial.
3. Behaviour with B. The evidence of genital exploration between two children when the complainant was about four did not show that the experience enabled, or contributed to enabling, her to give the detailed description of the alleged offending when aged six.
4. Lip-kissing. The fact that the complainant may have been kissed on the lips by her father or others did not materially support an allegation of sexualised behaviour or fabrication, particularly since the appellant himself accepted that he had kissed her on the lips.

None of these matters, whether considered separately or together, cast doubt on the safety of the conviction. The appeal was therefore dismissed.

• Court of Appeal (Criminal Division) — On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the court dismissed the appeal against conviction: [2025] EWCA Crim 1540.
• Court of Appeal (Criminal Division) — On 12 July 2019, the Full Court dismissed the appellant’s first appeal against conviction.
• Court of Appeal (Criminal Division) — On 25 October 2018, the court allowed an Attorney General’s sentence reference under section 36 of the Criminal Justice Act 1988, quashed the sentences on three counts, and substituted a longer sentence.
• Crown Court at Cardiff — On 6 July 2018, the appellant was convicted. On 9 August 2018, he received a special custodial sentence under section 236A of the Criminal Justice Act 2003.