R v Matthew Dickens

An appeal alleging incompetent representation requires proof that representation fell below reasonable professional standards and caused identifiable errors or irregularities making the trial unfair or the conviction unsafe. Tactical decisions made in good faith after proper consideration and informed instructions do not make a conviction unsafe merely because an appellate court would have chosen differently. Grounds must be assessed individually and cumulatively. In cases involving neurodivergent defendants, intermediary arrangements are fact-specific and depend on what is necessary for effective participation. Potential difficulties must be shown to have materially occurred. A fresh-evidence appeal still turns on whether the conviction is unsafe.

The applicant was convicted in the Gloucester Crown Court of two counts of rape and sentenced to concurrent terms of six years’ imprisonment. He renewed his appeal against conviction, relying principally on the failure to make an application under section 41, alleged failures concerning his neurodivergence and trial participation, shortcomings in the medical evidence, and errors in the conduct and summing-up of the trial.

He also sought to adduce fresh evidence, including expert evidence, communications schedules and a victim personal statement timeline. The central issue was whether the alleged deficiencies, considered individually or cumulatively, rendered the trial unfair or the convictions unsafe.

Disposition. The court granted leave to amend the grounds and leave to appeal. It refused the applications to adduce fresh evidence under the Criminal Appeal Act 1968, but dismissed the appeal against conviction.

1. Representation and section 41. Applying the test stated in R v Day [2003] EWCA Crim 1060, and the guidance in R v Clinton [1993] 1 WLR 1181 (CA), the court held that counsel’s decision not to seek a section 41 ruling was a reasonable tactical decision. There was a real risk that evidence of the complainant’s alleged childhood rape would damage the defence. The applicant understood the advice and its consequences. The decision did not render the conviction unsafe.
2. Neurodiversity and intermediaries. The court accepted the duty to ensure a fair trial and the power to appoint an intermediary, referring to Re M (a Child) [2012] EWCA Civ 1905, R (C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), R v Cox [2012] EWCA Crim 549 and R v Thomas [2020] EWCA Crim 117. The assessment under the Criminal Procedure Rules was fact-specific. The judge should have informed the jury of the applicant’s autism, but the evidence showed that he understood the proceedings, gave clear evidence and suffered no material disadvantage.
3. Medical evidence and directions. There was no realistic basis for rebuttal medical evidence. The judge should not have said that some marks appeared consistent with finger-gripping, but that observation was of secondary importance and did not affect the safety of the conviction. The reference to blood on the sheets being from sex was unsupported by forensic analysis, but was a natural inference and was not capable of misleading the jury in the context of the summing-up.
4. Fresh evidence and cumulative assessment. The court applied section 23 of the Criminal Appeal Act 1968 and the principle stated in R v Pendleton [2001] UKHL 66 and R v Pabon [2018] EWCA Crim 420: the ultimate question remained whether the conviction was unsafe. None of the fresh evidence afforded a ground for allowing the appeal. The criticised features, considered cumulatively, did not render the trial unfair or the convictions unsafe.

• Court of Appeal (Criminal Division): granted leave to amend and leave to appeal, refused the fresh-evidence applications, and dismissed the appeal: [2026] EWCA Crim 542.
• Gloucester Crown Court: convicted the applicant of two counts of rape and imposed concurrent six-year custodial sentences.