C, R v

LORD JUSTICE KAY: On 10th August 1994 in the Crown Court at St. Albans before His Honour Judge Colston QC and a jury, the appellant was convicted of a count of rape by a majority of 10 to 2 and was sentenced to ten years' imprisonment. He appealed against his conviction but his appeal was dismissed. He continued to maintain his innocence and in due course made an application to the Criminal Cases Review Commission inviting them to consider his case and to refer it to the Court of Appeal so that the matters about which he made complaint could be raised with the court. The Commission received the case. It not only looked at all those matters raised by the appellant, but also reviewed the totality of the evidence. As a part of that exercise, it came across medical evidence that had never been considered by the court and came to the conclusion that that was material which might lead to the allowing of an appeal. Accordingly, the Commission referred this case to this court and we now consider the appeal that results from it.

The Commission were undoubtedly right to think that the matters they had uncovered were likely to lead to the allowing of an appeal because the Crown recognise that there is complete force in the points that are made and have not sought to resist this appeal. Accordingly, we can take the matter relatively shortly.

The charge of which the appellant was convicted was a charge in respect of his daughter, S. The allegation in the indictment alleged that the offence had taken place on an unspecified date between the beginning of January 1988 and the end of December 1990, at which time the little girl would have been six or seven. She gave evidence entirely consistent with the offence having occurred at a time which by reference to the teacher who taught her at that stage meant that it was some time in the academic year 1987 to 1988. However, the jury were not invited to consider the case on the basis that rape could have occurred then. That was because the Crown had available to it, and made use of at trial, evidence from a doctor, Dr Shurz In May of 1990 she had examined the girl and had carried out a full examination of her vaginal area. She found no evidence at that time in any way to suggest that the girl had been raped.

At the end of June of 1990, roughly two months after the date of that examination, the appellant separated from his family and thereafter had no further contact with his daughter save contact that was supervised by others. The jury were further told of a further examination of the girl in 1993 carried out by two doctors, Dr Shurz as before and Dr Butterworth, a senior clinical medical officer, who had jointly examined the girl. On that occasion they did find evidence that she had been raped. Accordingly the Crown presented their case on the basis that this rape, contrary to the girl's recollection, must have occurred in the period May/June of 1990 and the jury considered the case on that basis. They clearly accepted the girl's evidence, supported in such a forceful way as it was by the medical evidence, and concluded that the appellant was guilty. When the matter came on appeal, the Court of Appeal considered exactly the same evidence. They apparently reviewed for themselves the video evidence of the girl and they too concluded that the likelihood was that the girl was giving a true account but that she was mistaken about the date.

When the case went to the Criminal Cases Review Commission the material that they uncovered was evidence of a further examination of the girl. That examination had been carried out in January 1991. It was carried out by Dr Shurz, the same doctor who had carried out the first examination and one of the two doctors who carried out the third examination. The evidence included a finding by the doctor that the prepubertal vagina was normal with no soreness. That finding that the vagina was normal was entirely consistent with the examination that had taken place the previous May, but very different from the picture that had been found in October of 1993. Then both Dr Butterworth and Dr Shurz found on examination of S an injury to her posterior fourchette which was very obvious and a significant finding leading to the conclusion that she had been penetrated. Dr Butterworth said of it that if the injury had happened six or seven years before trial it would have been noticed when she was in care. Dr Shurz agreed with the findings of Dr Butterworth and called the injury "very obvious and quite unusual".

That finding clearly, when coupled with the knowledge that came about of the material uncovered in the investigation by the Commission, showed that a significant event had occurred to this girl but that it must have been after January of 1991 and not in May or June 1990. If it was after January 1991 it was common ground that the appellant could not have been responsible because he would have had no opportunity to commit an offence at that stage. Clearly that evidence was critical and in effect destroyed the Crown's case as it had been presented to the jury at the trial. In those circumstances it is readily apparent why the Commission thought that this case should be referred to this court, and why too the Crown have recognised that this was a conviction which was not only unsafe but should never have happened.

Anyone looking at those facts would be bound in the first place to wonder how it could be that Dr Shurz was able to give her evidence to the jury (when she must surely have appreciated the significance of the various examinations), without making any reference to the middle of the three examinations. We have no explanation as to how that occurred but it is a troubling feature of the case. Equally, we are told that the material showed that Dr Butterworth was also aware that there had been the January 1991 investigation. A letter had been written to her to that effect. Of course she may have forgotten about it two years later, but we would have expected a senior clinical medical officer to refresh her mind about information of that kind, either before making her report or alternatively before she gave evidence about the matter. It is again troubling that her evidence did not in any way reveal the second examination.

Of even greater concern to the court are other factors relevant to this matter. The information was found by a consideration of a file kept by the local authority in relation to this girl. Prior to trial the defence had been concerned for a number of reasons to have sight of that file to see whether there was any material which assisted the appellant's case. Not surprisingly the Crown took the view that there might well be material on the file which was of a confidential nature which should not be routinely disclosed. As often happens in such cases, although practices vary to an extent about the country, an arrangement was made whereby the prosecution themselves would obtain the file and would go through it to see whether there was any material which they, since it would be then in their possession, ought to disclose to the defence. The relevant documentation was, apparently, on the file at that stage. We are told that the exercise was carried out by counsel for the prosecution who went through the file. We know not how it was that he failed to disclose that document. It seems that the most probable explanation is that for one reason or another he did not see the document or alternatively did not recognise the significance of the document. That we consider to be a serious state of affairs. Here was a situation where the defence were making a reasonable request and reasonably were relying upon the prosecution to do their duty. There was a breach of the duty of disclosure in this case and that is, as we say, a serious matter.

The one thing that is clear beyond any question is that this appeal must be allowed. The conviction was unsafe and the appellant should never have been convicted in the first place. If the full evidence had gone before the jury, no jury could possibly have convicted. In those circumstances we allow the appeal.

So far as the other aspects of the case that disturb us are concerned, we intend to invite the Director of Public Prosecutions to look at this case, firstly to ensure that steps are taken which will make sure that there is no repetition of what occurred here in other cases. Secondly, to offer to Mr C, if it is possible, such explanation as there may be as to how such failings occurred in this case, and further, to look to see whether any steps ought to be taken in respect of any of the individuals concerned as a result of their conduct in the case, possibly by a reference to their professional body.

As a part of the criminal justice system this court can do no more than allow the appeal and apologise to Mr C for the fact that he was wrongly convicted. It will be for others to consider other aspects of how he should now be treated. We allow this appeal.