R v David Barry Parkinson

Fresh evidence in a criminal appeal must satisfy both the statutory fresh-evidence provisions and the substantive rules governing complainant sexual-history and non-defendant bad-character evidence. Evidence of previous sexual behaviour is not admissible merely because it bears on credibility or consent. Where consent is in issue, the statutory timing or similarity requirements must be met. Evidence of past drinking, sexual conduct or lies will not ordinarily have substantial probative value on whether the complainant consented on the occasion charged, particularly where contemporaneous evidence directly addresses intoxication and condition. If the proposed evidence is inadmissible, leave to adduce it, any extension of time and leave to appeal should be refused.

Following a trial at Chester Crown Court, the applicant was convicted on 9 June 2023 of rape and sentenced to nine years’ imprisonment. He applied out of time for leave to appeal against conviction and sought leave under section 23 of the Criminal Appeal Act 1968 to adduce evidence from three new witnesses. The proposed evidence concerned the complainant’s alleged promiscuity, drinking, sexual conduct and previous lies. A further ground was withdrawn, and no complaint was made about the trial judge’s directions or trial counsel’s conduct. The central issue was whether the proposed evidence was admissible under section 41 of the Youth and Criminal Justice Evidence Act 1991 or section 100 of the Criminal Justice Act 2003.

The court refused leave to adduce the fresh evidence, refused the requested extension of time, and refused leave to appeal against conviction.

1. Fresh evidence. The application raised the issue under section 23(2)(d) of the Criminal Appeal Act 1968 whether there was a reasonable explanation for not calling the evidence at trial. It was unnecessary to determine that issue because the evidence was not substantively admissible.
2. Sexual-history evidence. Evidence concerning the complainant’s previous sexual behaviour was subject to section 41 of the Youth and Criminal Justice Evidence Act 1991. The proposed evidence related to consent, did not concern behaviour at or about the time of the alleged offence, and was not sufficiently similar to the alleged event for the similarity exception to apply. Evidence of the complainant’s alleged promiscuity, provocative social-media posts and a previous consensual sexual encounter was therefore excluded. The latter evidence also appeared to be hearsay.
3. Non-defendant bad character. Under section 100 of the Criminal Justice Act 2003, the evidence had to be important explanatory evidence or have substantial probative value concerning a matter of substantial importance. Evidence of drinking on other occasions, alleged conduct towards former partners and alleged previous lies did not meet those requirements. The jury had direct evidence of the complainant’s condition at the material time, including body-worn video, police evidence and toxicology. Previous lies did not materially establish whether she was lying on this particular occasion, since people may lie on different occasions for different reasons.
4. As the proposed evidence was inadmissible, leave to call it was refused. The application for an extension of time would serve no purpose, and leave to appeal against conviction was also refused.

• Court of Appeal (Criminal Division): On 3 December 2025, refused leave to adduce fresh evidence, refused an extension of time, and refused leave to appeal against conviction.
• Crown Court at Chester: Following trial on 9 June 2023, convicted the applicant of rape and sentenced him to nine years’ imprisonment. He had pleaded guilty to assault on an emergency worker and received a concurrent sentence of eight weeks.