Kieron Joseph v R

On an application to admit fresh evidence in a conviction appeal, the Court of Appeal must decide for itself whether the conviction is unsafe. The possible impact on the original jury is only a cross-check. The statutory factors governing fresh evidence are important but non-exhaustive, and none determines safety alone. The court must assess the evidence against each conviction, including its effect on credibility and any essential issue such as consent. Fresh evidence materially undermining a complainant’s account may render convictions based on that account unsafe, while leaving a separate conviction supported by consistent evidence intact. Convictions for rape and assault by penetration were quashed; a separate sexual-assault conviction was upheld.

Following a 2014 trial at the Crown Court at Woolwich, the applicant was convicted of sexual assault, assault by penetration and rape. He was acquitted on another count, and a further count was discontinued after a submission of no case to answer. He sought an extension of approximately nine years and three months to appeal and to adduce fresh evidence under the Criminal Appeal Act 1968. The fresh evidence consisted of later accounts by complainant C admitting that important parts of her trial evidence about the alleged rape had been false or exaggerated. The central questions were whether the evidence should be received and whether it rendered any of the convictions unsafe.

1. Fresh evidence. The court granted the extension of time and received the evidence under section 23(1) of the Criminal Appeal Act 1968. The evidence was capable of belief, would have been admissible at trial, and there was a reasonable explanation for its late production. It was therefore in the interests of justice to receive it.
2. Applicable approach. The ultimate question was whether, having regard to the fresh evidence, any conviction was unsafe. The court had to make up its own mind. Considering the possible impact on the jury was only a means of checking that assessment. The factors in section 23(2) were not exhaustive, and none answered the safety question alone. The court applied the approach stated in R v Barker [2021] EWCA Crim 603, which had confirmed the approach earlier suggested in an obiter passage in R v Ahmed [2010] EWCA Crim 2899.
3. Counts 3 and 4. The trial prosecution and judge had treated complainant C’s consistent account of the parties’ physical positions and her efforts to resist intercourse as central to credibility, consent and reasonable belief. Her later admission that she had deliberately falsified and exaggerated that account materially undermined the evidence on those issues. The convictions for assault by penetration and rape were consequently unsafe.
4. Count 2. The fresh evidence concerned a different complainant, whose account of the sexual assault had remained consistent. The jury had distinguished that evidence from complainant A’s inconsistent account despite the mutual-support direction. The conviction on count 2 was therefore not unsafe.
5. Orders. The appeal was allowed in part. The convictions on counts 3 and 4 were quashed, and the appeal concerning count 2 was dismissed. The prosecution did not seek a retrial, so no further reporting restriction under section 4(2) of the Contempt of Court Act 1981 was required.

• Court of Appeal (Criminal Division): [2026] EWCA Crim 22. Extension of time granted. Appeal allowed in part; convictions on counts 3 and 4 quashed, with the appeal dismissed as to count 2.
• Crown Court at Woolwich: Following trial, the applicant was convicted on counts 2, 3 and 4 and sentenced to six years’ detention. He was acquitted on count 5, and count 1 was subject to a submission of no case to answer.