Wednesday, 24 April 2019

Court of Appeal (Criminal Division) ~ SB, R [2019] EWCA Crim 565

SB, R [2019] EWCA Crim 565 was an interesting appeal heard in March this year.  SB was convicted of four counts of assault of a child under age 13 by penetration.    The complainant in the case is a teenage girl referred to as M and SB is her grandfather.

A person guilty of this offence is liable, on conviction on indictment, to imprisonment for life.  SB was actually sentenced to 12 years imprisonment and an extended period of 1 year under the Criminal Justice Act 2003 s.236A.  [Note:  236A was introduced by the Criminal Justice and Courts Act 2015 but is not considered further here].

Complaints about
what SB had allegedly done started to emerge at the end of 2015.  By May 2016, M, described as a "fragile and troubled teenager", was seeing a counsellor.  M told the counsellor that her grandfather had being doing "sexual things" to her whilst she was a child.  The counsellor reported the allegations to the Police.

M underwent a lengthy ABE Interview and the interview became the substantial part of M's evidence in chief at SB's trial.   M was cross-examined and she maintained that the allegations had indeed occurred.  SB was convicted on all four counts by a majority verdict of 11 to 1.

About 4 weeks after SB was sentenced,  M made a statement in the presence of a solicitor which amounted to an unqualified retraction by M of the evidence she had given at the trial.

Unsurprisingly, SB sought permission to appeal.  The court agreed to receive fresh evidence (Criminal Appeal Act 1968 s.23) and granted permission to appeal.  In order to reach those decisions the court held a hearing at which M and others were orally examined and cross-examined.

M chose to answer all questions put to her, although the court reminded her of her entitlement to refuse to do so on grounds of the risk of self-incrimination.   The Court noted that M (now aged 17) gave her oral evidence in a markedly different manner from that revealed in her ABE interview and was also notably hesitant on occasions in giving answers to direct questions; and some of her answers were, on any view, absurd (for instance, that she made complaint to the counsellor because she was "bored" or that she felt that the police officer in the ABE interview was telling her what to say).

The court concluded that the retraction statement was, in their words, "demonstrably unreliable." Detailed reasons for this finding are set out at para. 33 of the judgment.   The court summarised by saying (at para 36) - There is no proper basis for rejecting M's original evidence, as reflected in her complaints, detailed in her ABE interview, maintained throughout the trial and accepted by the jury. We reject the veracity and reliability of her subsequent retraction statement, put in after sentence was announced. We consider, in all the circumstances, that the convictions are safe."

The outcome is that a man was convicted on the basis of evidence which may reasonably be viewed as at least doubtful because of the subsequent retraction.  Nevertheless, the Court of Appeal took it upon itself to decide that the retraction was unreliable and that the conviction was therefore safe.


One might think that either M's evidence at trial was incorrect or, alternatively, the evidence given to the Court of Appeal was incorrect.   Perjury arises where a person lawfully sworn in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true.

I will leave this here save to note that after M made her retraction statement she was arrested for perjury - see the judgment at para 26 - where the court noted that the arrest was a "thoroughly unsuitable and inappropriate procedure given the circumstances and given M's age."  Unsurprisingly, M then (on the advice of her accompanying solicitor) made no comment to all questions asked of her by the Police

Fresh evidence cases:

In R v Pendleton [2001] UKHL 66, the House of Lords confirmed the approach to be taken by the Court of Appeal in new evidence cases.  The question is whether the court itself finds the conviction to be safe in the light of the new evidence.

The speeches in the Pendleton case are replete with comments such as that at para 17 where Lord Bingham said - "it is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly-prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury"

and at para 19 -

"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe."

Had the Court of Appeal asked itself that latter question in SB's appeal then it might well have concluded that the trial jury would not have convicted SB.  Indeed, how could it properly have done so?

It appears that in this case there was trial by jury in the first instance and trial by judges of the Court of Appeal in the second.

Interestingly, prior to R v Stafford and Luvaglio in 1974, the approach to fresh evidence cases was set out in R v Parks [1961] 1 WLR 1484 where Lord Parker CJ said -"If the evidence to which I have referred had been given at the trial it is impossible to say that the jury might not have had a reasonable doubt in the matter."

Corroboration / Care warnings:

In English law it is permissible to base a conviction on the evidence of a single prosecution witness.  As a general rule, there is (a) no requirement that evidence be corroborated; and (b) no requirements that a jury be warned of the danger of acting on uncorroborated evidence.

At one time, judges were required to give juries a "care warning" about convicting on the basis of the uncorroborated evidence of (a) an alleged accomplice or, (b) where the offence charged was of a sexual nature, the person in respect of whom it was alleged that the offence was committed - (see Law Commission Report No 202, 1991).

The Criminal Justice and Public Order Act 1994 s.32 abolished obligatory warnings to the jury in such cases.  Nevertheless, it is permissible for the trial judge to give such a warning and the principles for doing so were set out in R v Makanjuola [1995] 3 All ER 730  There must be an evidential basis for suggesting that the witness may be unreliable.

It is not reported whether the question of a care warning was raised in SB's case.


The time from the ABE interview on 28 June 2016 to the trial on 29 January 2018 is a period of 19 months.  Appeal proceedings were commenced on 1 May 2018 but the appeal was not heard until 15 March 2019.  Lengthy timescales are not unusual at the present time but they are far from desirable.

Other reading:

Barrister Blogger - Should a convicted man stay in prison if his accuser says he is innocent?  Please read this excellent analysis of SB's appeal where it is also noted that at the second appeal by the Birmingham Six the Court of Appeal took it upon itself to adjudicate on the truthfulness or otherwise of numerous witnesses called by either the Six by the Crown.

Law and Lawyers 30 November 2012 - Sir Cyril Smith: Corroboration of evidence

Law and Lawyers 26 November 2014 - The Birmingham Pub Bombings 1974

Stafford and Luvaglio - the one armed bandit murder of Angus Sibbet in 1967. The following trial resulted in life sentences for Dennis Stafford and Michael Luvaglio. Both men were released on licence 12 years later.

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