R v Jacob 2023


J and C had sexual intercourse in a Portaloo toilet at a festival. C accused J of rape, and this was reported to the police via a security officer at the festival. Following an investigation, the matter proceeded to trial where the issue was whether C had consented to the intercourse, with it being C’s account that she had not.

C provided evidence at trial and the prosecution called four witnesses to also give evidence (family members present at the festival and the security guard who reported the matter to the police). Evidence was also provided by attending police officers and from J’s friend.

It was J’s account that sex had taken place between himself and C but that it was consensual and had been initiated by C. In support of his account, J relied on inconsistencies in C’s account, his evidence of good character and DNA evidence which J asserted was consistent with his evidence that C had performed consensual oral sex.

At the conclusion of the trial, J was convicted of rape contrary to section 1 of the Sexual Offences Act 2003. J lodged notice to appeal against conviction but that was rejected by a single judge. A renewed application was made for an extension of time to vary the grounds of appeal based on fresh evidence that was said to call into question the safety of the conviction, pursuant to section 23 of the Criminal Appeal Act 1968.
 
Fresh evidence was from a security officer (P) who had been working at the festival on the same night it was attended by J and C. Whilst the prosecution and defence had been aware of P prior to trial they had been unable to locate him, and it was only after J was convicted that J’s mother was able to track P down.

P had witnessed a man and a woman enter the Portaloo together and described that they appeared to be having fun and in good spirits. Whilst persons weren’t permitted to enter Portaloo’s together, the guard explained that he was deciding whether to interfere but then the male exited. P described that it looked like the female asked him to come back viewing her gestures but at that point, he went over to tell them they couldn’t be in there together and they both left. Later in the evening, P was informed of an altercation and saw that the man he had seen earlier at the Portaloo had been badly punched.
 
It was accepted there were three stages to the matter:
  • Whether fresh evidence should be admitted under section 23.
  • Whether leave to appeal should be granted based on the fresh evidence and in relation to an argument that J’s conviction was potentially unsafe.
  • Should leave be granted, whether the conviction was unsafe, and appeal should be allowed.
 

Held


Fresh evidence admitted, leave to appeal granted and appeal successful, conviction quashed.
 
Although leave will not be given to renew out of time unless the applicant can persuade the court that very good reasons exist, evidence from P would have been admissible at trial had it been available, and it was also mainly credible. Sufficient explanation had also been provided supporting the fact that P’s evidence was not available at the time the original notice of appeal was lodged and also, to any delay in advancing the amended ground of appeal. Due to that and combined with the fact that the evidence was supportive of the defence case, the court concluded that it should be admitted in the interests of justice under section 23(1) of the Criminal Appeal Act 1968 and J should be permitted to amend his grounds of appeal out of time based on the fresh evidence.

Where fresh evidence has been admitted, the question is whether this Court, having regard to the fresh evidence, considers that the conviction is unsafe, pursuant to section 2(1)(a) of the Criminal Appeal Act 1968 Act. The court found P to be a credible witness whose evidence supported J’s account to the extent that it caused the Court of Appeal to doubt the safety of the previously guilty verdict reached by the jury and had P’s evidence been available at the time of the original trial, there was a prospect that the jury would have reached a different conclusion.

The court concluded that the fresh evidence called the safety of the conviction into doubt and the appeal must be allowed. J’s conviction was quashed and a re-trial pursuant to section 7(1) of the Criminal Justice Act 1968 was sought, upon request of the prosecution.