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Cite as: [2001] EWCA Crim 339

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Neutral Citation Number: [2001] EWCA Crim 339
No: 200000892/Z3

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 15th February 2001

B e f o r e :

LORD JUSTICE CLARKE
MR JUSTICE CRESSWELL
and
MR JUSTICE OUSELEY

____________________

R E G I N A
- v -
C.S.
and
O.S.

____________________

Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR J D D HALL QC appeared on behalf of the Appellants
MR A NUTTALL appeared on behalf of the Crown

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright

    15th February 2001

  1. LORD JUSTICE CLARKE: This case has a long history. It was previously before this court on 29th October 1993. It is now before the court in the form of a reference by the Criminal Cases Review Commission ("the CCRC") under section 9 of the Criminal Appeal Act 1995 ("the 1995 Act").
  2. The appellants are CS, who is now 37, and OS, who is now 38. The events with which this appeal is concerned occurred as long ago as August 1988. They all occurred on one day, or perhaps more accurately one night.
  3. On 2nd December 1991 in the Crown Court at Manchester before His Honour Judge Sachs, after a six day trial the appellants were convicted of sexual offences involving one female complainant and sentenced as follows: CS for rape, count 1, 11 years' imprisonment; for aiding and abetting rape, count 3, 11 years concurrent; for indecent assault, count 5, six years concurrent; OS for rape, count 2, 11 years' imprisonment; for aiding and abetting rape, count 3, 11 years concurrent; indecent assault, count 6, six years concurrent. OS was acquitted of count 4 which had alleged rape and the jury was directed to return a verdict of not guilty in respect of count 7 which had alleged indecent assault. Their co-accused, KA, was acquitted of the rape alleged in count 3 and of one offence of indecent assault, count 8.
  4. The appellants were represented under legal aid by solicitors and counsel, namely Mr Field-Fisher QC and Mr Vardon for CS, and Mr Draycott QC and Mr Bromley-Davenport for OS.
  5. Both CS and OS appealed against both conviction and sentence. On 29th October 1997 this Court, comprising Farquharson LJ, Garland and Pill JJ, quashed the convictions on count 3 for aiding and abetting rape and reduced the remaining 11 year sentences for rape to nine years' imprisonment.
  6. The CCRC considered a number of bases upon which it had been submitted that the convictions were unsafe and rejected all but one. The reference is thus based on a single ground, namely the failure by the police or the Crown to disclose the complainant's medical reports.
  7. By section 13 of the 1995 Act the CCRC is not permitted to refer a conviction to this Court unless it considers that there is a real possibility that the conviction will not be upheld if the reference is made. By the same section any such reference must be based on an argument or on evidence not raised in the proceedings which led to the conviction or any appeal.
  8. In the instant case the CCRC obtained evidence of medical reports which were not available at the trial in 1991 or at the appeal in 1993. Having considered that evidence, it concluded that the evidence was available to the police or the Crown Prosecution Service, that it should have been disclosed to the defence, and in these circumstances that there was a real possibility that this Court will not uphold the conviction.
  9. We shall consider how the new evidence fits into the case as a whole in a moment, but first we should observe that the first two conclusions reached by the CCRC are now accepted as correct. It was appreciated from the outset that the complainant's medical reports were of potential importance at the trial. Thus in a letter dated 23rd February 1998 the Crown Prosecution Service lawyer who was in charge of the case in 1991 wrote as follows:
  10. "I confirm that I was obviously aware of the significance and importance potentially to both prosecution and defence of these documents [that is the medical records] and that had I received them then either the prosecution would have called such evidence to support the complainant's account or they would have been disclosed to the respective defence solicitors as unused material."
  11. It is now accepted by the Crown that medical notes had been obtained by the police and that they were not disclosed to the defence as they should have been. It is not clear how this came about. It may be that as a result of some error the records never found their way from the police to the Crown Prosecution Service, or it may be that they were somehow lost by the Crown Prosecution Service.
  12. In so far as it may have been suggested by Mr Hall that there was any misconduct or deliberate withholding of the records either by the police from the Crown Prosecution Service or the Crown Prosecution Service from the defence, we are unable to accept that suggestion. Indeed there is no reason to doubt the statement made by the Crown Prosecution Service lawyer in the letter quoted above that if he personally had received the records he would either have adduced them in evidence on behalf of the Crown or disclosed them to the defence as unused material.
  13. By section 9(2) of the 1995 Act a reference under section 9(1), as has occurred here, is to be treated for all purposes as an appeal by the appellants against conviction under section 1 of the Criminal Appeal Act 1968. It follows that the question for decision is whether the convictions of CS and OS are safe.
  14. In trying to answer that question we should, we think, put the new evidence in context, which necessitates our giving at least some account of the facts. They are set out in some detail in the judgment of this court given by Farquharson LJ on 29th October 1997. However, in the light of the issues which have now arisen, we set them out just a little more fully.
  15. The appellants are brothers. In 1988 when they were in their mid-20s they were acquainted with the complainant's mother. The complainant was then aged 14. Her birthday was 28th August and she attended a school for the educationally subnormal.
  16. It was the Crown's case that about two days before her birthday the complainant had accompanied the appellants to the home of their co-accused KA. Persons present included OS's girlfriend, SW, and one DP. The complainant's boyfriend, PA, had been there, but it was alleged that he had been told to leave by the appellants. The appellants made the complainant drink lager with the result that she was tipsy, and indeed was sick.
  17. At KA's house she claimed that CS dragged her upstairs, made her undress, and had sexual intercourse with her and then oral sex, counts 1 and 5. Then OS appeared and did the same, counts 2 and 6. The Crown alleged that next KA was pulled into the bedroom and pressured into having sexual intercourse with the complainant, count 3. Afterwards they all went downstairs. KA, CS, SW and DP then left the house and the complainant was left alone with OS who forced her to have sex with him again, counts 4 and 7. The complainant complained to her boyfriend and her mother. She first made a complaint to the police in 1990 and named the appellants and KA in early 1991.
  18. The defence case was that they did not have intercourse with her. CS said that he had committed a burglary of the house next door to KA and on his return he found the complainant and KA having sexual intercourse. We should, however, interpose to say that the evidence of the burglary was not put before the jury.
  19. None of the defendants gave evidence. They relied on the answers that they had given in interview.
  20. The complainant's evidence may be summarised in this way. She said that she did not want to go with the appellants but her mother had told her to do so. They forced drink on her and she was sick in KA's front garden. Although tipsy she remembered what had happened. The appellants sent her boyfriend home. Another lad, DP, was with them. At KA's house the stairs were in the living room. CS, whom she referred to as N, grabbed her by the arm and pulled her upstairs. He was not gentle and was too strong for her. He pushed her on to a bed and she was scared. He told her to take off all her clothes which she did. He pulled his pants down to his knees, put his arm round her, then penetrated her with his penis. He said she had better make him come. Afterwards he got off and when she asked if she could get dressed he put his penis towards her mouth, then grabbed her head and put his penis into her mouth. He told her to move backwards and forwards. It seemed like ages. She did not agree either to the intercourse or the oral sex.
  21. OS then came upstairs. He pulled his pants down and lay on top of her. She did not want to have intercourse with him but let him because she was scared. After a while he got off and put his penis in her mouth.
  22. The appellants then called to KA. When he appeared in the bedroom they told the complainant to undress him. She did not want to but did because she was scared. It was difficult because he was tall. He lay down on top of her and put his penis inside her vagina. After a while he got off and put his penis in her mouth. In cross-examination she said that KA had looked into the room and fled. The appellants followed him and dragged him back to the bed. He resisted. They threatened him that either he have sex with her or they would "batter" him. She thought that was what was said. KA looked terrified to her. She was not sure if he had intercourse with her. She did not feel his penis. Afterwards she got dressed and they all went downstairs. She was scared, sore and crying. KA and CS left. She saw them across the road with DP.
  23. OS then took her back upstairs and had intercourse with her again. He said not to tell CS. After the second rape OS threatened to kill her if she told anyone. However, she had not mentioned that in her statement.
  24. Later she was taken by car to her ex-boyfriend's house. She told PA they had all raped her. Afterwards she tried to tell her mother what had happened, but her mother told her to forget it. She always did what her mother told her to do. Her mother and the appellants were good friends and she thought that they still were.
  25. The complainant said that she had visible injuries on her face and left cheek and that she had visible love bites on her neck. A doctor examined her some days afterwards. In cross-examination she said she was sure the rapes happened two days before her 15th birthday on a day she went to school. It was put to her that school records showed she had not attended in the week before her birthday. She repeated that she was sure it was a day she was at school. At the committal she had stated that she was off school for a month because of her injuries. It was put to her that her school record showed that she had gone to school on Tuesday to Friday of the following week, but said she must have been mistaken. She said she was examined by a doctor but could not remember how many days afterwards.
  26. There had also been a girl, SW, in the house who had left before OS raped her the second time.
  27. She continued to see the appellants after the incident and, apart from complaining to her mother and then boyfriend, she had said nothing until she complained to her current boyfriend who was supportive of her. She denied making a false complaint against another man and insisted he had tried to touch her. She denied lying or exaggerating about her attendance at school to account for her injuries not being spotted. She did not share a bedroom with her sister.
  28. The complainant's sister gave evidence that they did share a bedroom and that she did not notice any marks on her sister.
  29. PA gave evidence that the complainant told him that OS and CS had forced KA to have sex with her. He was upset by what he heard but did nothing about it because he feared a "good hiding". After the lapse of time it was not easy, he said, to recall the exact words the complainant had used.
  30. All three defendants were interviewed. CS had a speech impediment. He agreed that some of what he said was unintelligible. Throughout he denied having sexual intercourse with the complainant. He did, however, say that it was KA who had sex with her. He said that he had seen her naked with KA. He had asked KA, he said, if he had forced the girl. KA denied it, so did the girl, but he slapped KA for it.
  31. It is right to say that during his interview CS told the police that he had committed a burglary which was planned by KA and both brothers, who were tried for burglary of premises adjacent to KA's address. Those matters were not before the jury, but it is common ground that the burglary took place on 24th August. The burglary is only potentially relevant now because it may help to place the date of the incident.
  32. OS said in interview that he did not know what went on in the flat because he was not there. He agreed the complainant was afraid of him and said she was bound to be as she was a young woman. He did not have a clue why she was afraid of him now. He had given her boyfriend a few hidings because he could not stand him. The complainant must have known about the hidings. Later he told the police that it was KA who was responsible but "it wasn't me". He did not know why the complainant went with KA but she had been "knocking about" and it was something to do with her family splitting up. He denied seeing the complainant and KA go upstairs. He did not say anything when first questioned because he did not want to land anyone in it or be involved himself.
  33. KA said he was frightened of the appellants and he had not touched the complainant. Then he said he was forced to go into the room. The implication was that he would get a good hiding if he did not. He just lay on the bed beside her but did nothing. The complainant did not undress him.
  34. The only evidence identified as corroborative was that when he was charged with the offence of rape KA said, "I admit it". He signed a charge sheet on which his answer was recorded.
  35. The defence made a submission of no case to answer at the conclusion of the prosecution case, but it was rejected. No transcript of the ruling is now available.
  36. As we have already stated, none of the defendants gave evidence.
  37. DS, however, gave evidence on behalf of CS that the complainant had falsely accused him of an indecent assault on her which the complainant insisted was true.
  38. There was also unchallenged evidence from the headmaster of the complainant's school that she had not been in school in the week ending 26th August, although the school was open, and that she had been at school the next week, from Tuesday 30th August until Friday 2nd September Monday: 29th August was a bank holiday.
  39. The judge directed the jury to return a verdict of not guilty of count 7, which alleged indecent assault against CS, namely an act of oral sex performed by him on the complainant after the others had left. That direction was given because the complainant did not refer to it in her evidence at all. CS was acquitted by the jury of the second alleged rape which was said to have been committed after the others had left.
  40. KA was acquitted of the rape alleged against him, although CS and OS were convicted of aiding and abetting it. In this court the convictions of both appellants for aiding and abetting were quashed. The Court recognised that there were two alternative bases upon which KA could have been acquitted, either that the jury were not sure that there had ever been penetration, or that they were not sure that he had not raped the complainant under duress. Whether correctly or not is not, of course, for us to say, but the court quashed the convictions because it could not assume that the jury came to their conclusion on one basis rather than the other and thought that the convictions for aiding and abetting were unsafe.
  41. In short this court considered two sets of appeals. The first were appeals by CS against his convictions for rape and indecent assault in respect of the first of the incidents described by the complainant, namely the rape followed by the oral sex. The second set of appeals were appeals by OS against almost identical convictions. The essential ground of appeal was that the evidence of the complainant was both uncorroborated, or almost uncorroborated, and incredible. No criticism of any kind was directed either then or now towards the summing-up of the judge, who, as we have indicated, was then His Honour Judge Sachs but is of course now Sachs J.
  42. The appellants relied upon a number of features of the complainant's evidence which they said made it incredible. Some of them are expressly referred to in the judgment of Farquharson LJ and indeed were referred to in the summing-up of the judge. They were these: (1) the evidence of the complainant in examination-in-chief that she had been penetrated by KA, but her subsequent agreement, albeit after what Farquharson LJ described as some "skilful questioning", that she did not see or feel his penis; (2) her evidence that OS threatened to kill her if she told anyone, whereas she had not mentioned such a threat in her original statement; (3) her earlier account to the effect that OS had oral sex with her a second time which she did not mention in evidence; indeed, she had initially said in a statement dated December 1990 that he had not put his penis in her mouth; (4) her evidence that she had been at school on the day of the incident, whereas it was clearly established that she had not been at school at all in the week ending 26th August; (5) her evidence that she was off school for a month because she had suffered some bruises on her face and love bites on her neck, whereas the school records showed that she had been to school every day from Tuesday 30th August to Friday 2nd September; (6) her evidence that she had sustained bruises and love bites whereas the evidence of her sister suggested that there was no sign of injury; (7) her evidence that she told PA that she had been raped by all three men, whereas he said that she only told him that CS and OS forced KA to have sex with her; and (8) the absence of evidence both from SW as to the events of the night and from her friends or her sister who must have seen the bruises and love bites to which the complainant referred.
  43. This court did not accept the submissions made by Mr Field-Fisher on behalf of the appellants. It said, for example, that SW was OS's girlfriend and that the defence could have called her if they wished.
  44. As to the credibility of the complainant Farquharson LJ said at page 10B:
  45. "Pausing at that the point before I come to the remaining features of this appeal, one has to ask oneself whether the verdicts of the jury, at any rate, on the counts not involving KA against these two appellants, were safe or is the evidence that she gave and the criticisms made of it such that this Court feels a larking doubt about the justice of the conviction. This Court, having considered the matter, has come to the conclusion that while these were all perfectly tenable jury points, some, as I have indicated, better than others, none was so fundamental that one could properly say that the conviction was either unsafe or unsatisfactory. The girl was cross-examined at considerable length upon all these matters by two leading counsel, and it became a matter for the jury, it seems to us, as to what credibility should be accorded to her evidence as a result.
    The jury were fully appraised of the points that had been made against the girl and repeated before us in this appeal. On that part of the case, therefore, this Court is no disposed to accede to the submission made on behalf of the appellants."
  46. The Court also rejected a further ground of appeal on behalf of OS based on suggested inconsistent verdicts between his conviction in respect of the first rape and oral sex alleged against him and his acquittal of the second alleged rape. The Court rejected this point in these terms at page 12B:
  47. "We now come to the last issue that has been raised on behalf of the appellant OS. It will be recalled that in her recital of events [the complainant] said she was raped a second time by OS after the other persons previously present in the house had departed. The argument put forward in this context was that as the evidence of rape by OS was precisely the same on count 4 of which he was acquitted as it was on count 2, the jury's verdicts are inconsistent. The evidence being in the state it was, either it convinced the jury that he was guilty of both rapes, or, if it did not, that he was guilty of neither. In the judgment of this Court that is not a fair submission to make. The circumstances of the first rape were such that each of the three defendants, in interviews with the police had acknowledged that they were present at the house when some kind of sexual activity had taken place at the expense of the girl. KA had described how he had gone into the bedroom, taking his clothes off and lay on the bed alongside her, she herself being naked, but he had claimed that he never went so far as penetration. CS describes how he had gone into the bedroom, seen KA raping the girl -- or at any event having intercourse with her -- and struck him. The third man, OS, with whom we are presently concerned, after having said he was not in the house at all admitted he was but claimed the rape had been committed by KA. That general background of events attaching to the first incident seems, in our judgment, to place the case in a different category from what took place later on when all had departed except for the victim and the aggressor."
  48. We fully understand the basis upon which that conclusion was reached. But the acquittal of OS on the second rape count does show that the jury did not regard the complainant's evidence as entirely reliable in respect of all the events which she described with regard to that night.
  49. How then is the position said to be different now? Mr Hall submits that the evidence now available might have made all the difference at the trial. Indeed he goes further and submits that it probably would. The absence of medical evidence was regarded as potentially significant. We have already quoted a statement from the Crown Prosecution Service lawyer which identified its importance to one side or the other, depending upon what it said. In this regard Farquharson LJ said at page 8E:
  50. "However, he comes on to rather stronger ground when dealing with the medical evidence, or perhaps I should say the lack of it. The complainant claimed that she had seen a doctor a few days after the incident took place, and as Mr Field-Fisher puts it by reference to the transcripts, she would be concerned not only with the injuries to her face and neck, but also to the fact that by reason of her experiences, her vagina was very sore. Indeed, in cross-examination she said as much. But, submits Mr Field-Fisher, there is no evidence from the family of these matters. Indeed, such evidence as there was which came from her sister T suggested that there was no sign of injury at that time. Furthermore, he claims there was no evidence from her school friends, and this leads to another incident.
    It seems that in giving her account of these events, the complainant said that as a result of the injuries she had suffered, she was off school for a month; but the defence were able to prove by calling the head master of the school to produce the register, that she had attended school during the relevant period. It is on this basis that counsel suggests if she had these injuries to her face, they must have been obvious to some of her friends who could have been called upon to give evidence. Perhaps the most useful evidence would have been that of the doctor himself, if he could have been identified, but it now emerges that the medical records of this girl covering the relevant time have been lost."
  51. It is plain from that passage that this court, and indeed no doubt the court at trial, were told that the medical records were lost. We are sure that the reason they were told that was because that was thought to be the case at the time.
  52. Neither the jury nor this court was, of course, able to draw any inference one way or the other from the absence of the medical records. It is, however, significant that Farquharson LJ described evidence from the doctor as:
  53. "Perhaps the most useful evidence."
  54. There is now available at least some evidence. The CCRC obtained a letter from Dr Dean who is, and was at the time, part of a general practice in Leigh in Lancaster. In addition we have now been shown the medical notes for the complainant covering the period between 22nd March and 27th October 1998. The notes do contain a curiosity because the first page covers the period from 27th March until some time in July 1998, the second page covers 8th and 9th August 1998 and the third page covers a period between 22nd June and 27th October 1988. However, as Mr Nuttall for the Crown very properly recognised, so far as is known to the Crown or any one else, we now have available the complainant's medical notes for the whole year. Thus there is no suggestion that there are available any medical notes in the period between, say, 24th August and 27th October which we do not now have before us.
  55. The notes for 8th August include the following:
  56. "1) A Pain on neck and shoulders and down the back. ... Not painful to breathe ..."
  57. We interpose to say to say that the "..." indicates parts of the notes which are somewhat illegible.
  58. "2) Nerve trouble ... since father left home. Shakey losing temper. Sleeping. Eating. Not depressed. Try ..."
  59. The next entry is for 9th August which includes the following:
  60. "Vomiting after eating today. Upper abdomen soreness ..."
  61. Then there is a further reference to:
  62. "Abdomen soft. No tenderness."
  63. and a reference to vomiting and to what appears to be a prescription. There is then no entry until 6th October 1988. It appears to us that the notes for 8th and 9th August 1988 do not provide any support for a suggestion that the complainant had made a complaint at that time about bruising or love bites or soreness in the vaginal area, or indeed any other matter which could reasonably be referable to her having been raped, nor indeed is it suggested that they do.
  64. Mr Hall submits that the notes point to what he calls a glaring contradiction of the otherwise uncorroborated evidence of the complainant. He submits that they support the conclusion that she did not visit a doctor in the period after the incident, whenever the incident occurred. He submits that that fact makes a significant, or potentially significant, difference to the whole case. For example, the summing-up, he submits, would have been in different terms if these notes had been available at the trial and if the complainant had been asked about them. As it was the judge merely said that the complainant had said that she was examined by a doctor some days after the events.
  65. We agree that if the medical notes had been available the judge would have pointed out to the jury the inconsistencies between her evidence and the fact that the notes suggest that she did not go to a doctor after the event as she had said that she did. Precisely how the summing-up would have been formulated would, of course, have depended upon what happened at the trial. We do not, of course, know whether she would have been shown the notes before the trial began or indeed what subsequently would have happened.
  66. Mr Hall also points to the passage, which we have already quoted, from the judgment of this court from which, as we have said, it is clear that it regarded medical evidence as of some potential significance.
  67. As we see it, at any rate on the facts of this case, the question whether these verdicts are safe essentially amounts to asking whether the jury might have acquitted the appellants if they had had the evidence which is now available before them. If they might have acquitted the appellants the verdicts of guilty could not, in our view, properly be regarded as safe.
  68. We have reached conclusion that the jury might indeed have acquitted the appellants. Our reasons are shortly as follows. (1) The Crown case depended entirely, or almost entirely, on the credibility of the complainant. There were already a number of features of the evidence which threw doubt on her credibility. We set out eight such features earlier and will not repeat them again now. (2) This court recognised in 1993 that argument based on those features were, as Farquharson LJ put it, "tenable jury points". The appeal was dismissed because, again as Farquharson LJ put it, the jury were fully apprised of the points which had been made. (3) The jury were not, of course, apprised of the further points which can now be made in the light of the new material. They are, in essence, that the medical evidence shows that the complainant did not go to her doctor between 9th August and 6th October and that her evidence that she did was unreliable. (4) In our opinion, given that the case depended so much on the complainant's credibility, that further example of her unreliability might well have persuaded the jury that they could not now be sure that she was telling the truth about the rape and oral sex first by CS and then by OS. (5) It was suggested by Mr Nuttall in his skeleton argument, but not pressed strongly during his oral submissions, that the complainant may have been mistaken about the dates, especially since she was young and vulnerable. She was educationally subnormal, as it was then called, and she made a complaint some two and a quarter years after the relevant events. It was submitted that that was particularly so given that she was not supported by her mother and was therefore without any guidance or support. The problem with the suggestion that she may have been mistaken about the dates is that she had always said that the incident occurred shortly before her 15th birthday, which all agree was on 28th August. Also there is some support at least for the suggestion that the incident occurred at the time of the burglary which we know was on 24th August. Thus although it might have been possible to submit to the jury that the complainant was mistaken about the date and that it occurred before she went to the doctor on 8th and 9th August there is evidence to the contrary and it is no more than speculation what view the jury would have taken. Moreover, as we have already said, there is nothing in the notes for those dates which supports the complainant's case. (6) In his skeleton argument Mr Nuttall relied upon the evidence of PA, including the fact that he could not remember the precise words used. But the difficulty with PA's evidence is that it does not support the complainant's evidence that she said that she had been raped by all three men. On the contrary, it supports the conclusion that she been raped by KA, aided and abetted by the appellants. Interestingly, although that is not the way this court saw it in 1993, it is consistent with the jury's original verdicts, namely the acquittal of KA on the ground of duress but the conviction of the appellants for aiding and abetting. As we see the evidence of PA, it afforded no support for the convictions of the appellants which are the subject of the present appeal. (7) Mr Nuttall submitted that the verdicts remained safe on the basis that this further piece of evidence would not and could not have made the crucial difference. He relied upon the fact that in their interviews CS said that he had seen the complainant naked and that OS had first lied about whether he was there at all and then said that he had seen her with KA. Moreover, Mr Nuttall drew our attention to the fact that KA said that he was very frightened, and indeed that there was a good deal of other evidence that the appellants were frightening. He submitted that the jury had seen the complainant and had formed the view as to her credibility, notwithstanding the various points of inconsistency and unreliability which had been relied upon both at the trial and in this Court. Mr Nuttall has submitted that in these circumstances the jury would have reached the same conclusion. (8) We have considered those submissions with care, but we have nevertheless reached the conclusion that these convictions cannot be regarded as safe. Just as Mr Nuttall in his skeleton argument submitted that these were essentially jury questions, that was essentially what this Court said in the appeal in 1993. We agree that these were essentially jury questions. If all the material had been available in 1991 and the jury had convicted, as it might well have done, then it may well be that an appeal to this Court would have failed. But it appears to us that in the light of all the other inconsistencies, this further inconsistency might have led the jury to acquit these appellants on the counts upon which they were convicted.
  69. We have considered what our view would have been if this appeal had taken place in, say, 1992 or 1993 and the medical evidence had been shown to us then. We have reached the firm conclusion that we would have quashed the convictions and ordered a new trial. We shall not, of course, now order a new trial because so many years have passed and because the sentences have been served.
  70. It follows, however, that these appeals must be allowed and the convictions quashed. We would only add this. Nothing in our judgment is intended to express any conclusion that the complainant was in fact not telling the truth. We have not been considering whether she was in fact telling the truth or not. We have simply been considering the way in which the jury might have considered the matter if they had seen the medical notes which they would and should have seen if the notes had been properly disclosed to the defence.
  71. MR HALL: My Lord, may I finally draw this matter to your Lordship's attention, bearing in mind, of course, your Lordship's last words? We nevertheless, together with those instructing, were duty bound to assist in this matter, which we did pro bono, in the case of those instructing me since 1994 and I since 1996. I am firmly advised by indeed the case lawyer within this case and this building that were your Lordships minded it would be possible for the legal aid order to be dated to cover all that work which I assure your Lordships was necessary in order to bring this matter to this conclusion.
  72. LORD JUSTICE CLARKE: Mr Hall, we have reached this conclusion. It is our view that you and those instructing you should have legal aid for all reasonable steps taken related to this ground over the period you mentioned.
  73. MR HALL: My Lord, is most kind. Thank you.


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