R v Shaun Gilder

MR JUSTICE PEPPERALL: Ordinarily, the automatic reporting restrictions contained in the Sexual Offences (Amendment) Act 1992 apply where an allegation has been made that a sexual offence has been committed against a person. In this case however, Daniel Cooper has bravely waived his anonymity in order that he can speak out about the impact of sexual offending. There are therefore no reporting restrictions in this case.

On 10 November 2023, in the Crown Court at Norwich before His Honour Judge Andrew Shaw and a jury, the applicant, then aged 40, was convicted of two counts of rape, contrary to section 1 of the Sexual Offences Act 2003; and one count of assault by penetration, contrary to section 2 of the same Act. All three offences were committed against Mr Cooper. On 27 February 2024, before the same court the applicant was sentenced to eight years' imprisonment on each count to run concurrently.

Shortly before the sentencing hearing, Judge Shaw received an anonymous note purporting to be from one of the jurors at the applicant's trial and alleging that they had discovered during the trial that a named juror was associated with Mr Cooper through being friends on Facebook. The judge properly referred the note to the Registrar who informed counsel.

In due course, the applicant filed an appeal against his conviction. The appeal is out of time and so accordingly the applicant seeks an extension of time for bringing his appeal and, should that be granted, leave to appeal against his conviction.

By his original grounds of appeal the applicant sought to argue that his convictions were unsafe because he had not been provided with an intermediary and, secondly, because of the jury irregularity exposed by the anonymous letter. In view of the second ground, the Registrar referred the applications to the full court.

On 16 January 2025, the applications came before my Lord, Edis LJ, then sitting with Lavender J and His Honour Judge Leonard KC. The court directed that the Criminal Cases Review Commission should investigate the alleged jury irregularity pursuant to section 23A of the Criminal Appeal Act 1968. Meanwhile, the court refused leave to appeal on the remaining ground and adjourned the applications pending the completion of the Commission's investigation.

The Commission has now interviewed all of the jurors and, in greater depth, interviewed the juror named in the anonymous note and Mr Cooper. It has found no evidence of any jury irregularity. First, no juror admitted to sending the note or recalled any suggestion during the jury's deliberations that there was relevant information about Mr Cooper that had not been given in evidence. Secondly, both the named juror and Mr Cooper denied any connection, whether in real life or via social media, with the other. The Commission's investigation showed that the named juror was no longer active on Facebook at the time of the applicant's trial and that Mr Cooper was not in fact listed in her old account as a Facebook friend. With the permission of my Lord, Edis LJ, the Commission's report and the statements taken during the course of its investigation were disclosed to the applicant.

By a skeleton argument filed on 13 October 2025, the applicant, who has dispensed with the services of counsel originally instructed in this appeal, argues that the Commission's investigation failed conclusively to disprove the Facebook connection; that it was defective in failing to undertake a historical forensic examination of Facebook data leaving unanswered the question of whether the juror and Mr Cooper might have been Facebook friends at the time of the trial; that there was no analysis of mutual connections; that several of the juror interviews were not recorded; that the report admitted to a note-taking error; and that a question asked of Mr Cooper indicated that the Commission had already formed the opinion that the Facebook screenshot might have been fabricated.

In our judgment, the Commission acted entirely appropriately and indeed in accordance with the court's instructions by interviewing the 11 jurors who might have sent the note. It properly conducted more in-depth interviews with the juror at the centre of the allegation and with Mr Cooper. The Commission established that the juror had a Facebook account that had been dormant since 2015 and that Mr Cooper was not listed as a friend. Mr Cooper checked his Facebook account during his own interview with the Commission and was able to demonstrate that the juror was not one of his contacts.

In our judgment, the Commission's investigation has established that there was no juror irregularity and that there are no grounds for concluding that the jury decided this case other than in accordance with their oaths or affirmations.

That conclusion would be the end of the matter save that on 3 December 2025, just one week before this hearing, the applicant lodged an application to vary his grounds of appeal. Some but not all of his new arguments had already been set out in a skeleton argument filed on 13 October. At that stage there was however no application to vary the grounds of appeal.

There is nothing modest about the change in focus. The applicant now seeks permission to argue four entirely fresh grounds. First, that there is fresh evidence that undermines the complainant's credibility. Secondly, that the judge should have exercised his discretion pursuant to section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence of the applicant's police interview on 16 October 2018. Thirdly, that there were material errors in the 2004 police investigation. And fourthly, that the judge had unfairly intervened and restricted proper cross-examination, and that his summing-up had not been balanced.

There is no unfettered right to argue whatever grounds of appeal might occur to an applicant a week before the hearing before the full court. The principles to be applied to fresh grounds were identified by this court in R v James [2018] EWCA Crim 285 and are now set out at paragraph 10.4.5 of the Criminal Practice Directions 2023. While the applicant is not required to demonstrate substantial injustice, the hurdle that he faces is nevertheless a high one. Relevant factors include the extent of and reasons for the delay, whether the facts or issues that form the subject of the new grounds were known to the applicant's former lawyers when they advised on appeal and, the interests of justice and the overriding objective.

The first new ground relies on fresh evidence. Of course, before fresh evidence can be received on an appeal, this court is required by section 23 of the Criminal Appeal Act 1968 to have regard in particular to (a) whether the evidence appears to be capable of belief, (b) whether the evidence may afford a ground for allowing the appeal, (c) whether the evidence would have been admissible at trial, and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

The court has considered the proposed fresh evidence. The statements from the applicant's parents and his sister all go to the issue of the layout of his parents' house in 2004. That matter was explored at trial and indeed both the father and sister were defence witnesses who gave evidence about just that issue. Had the applicant wished to adduce further evidence from his father and sister, or call his mother to give this evidence, he could and should have done so in his defence at trial. It cannot have been a recent discovery that these witnesses might have relevant evidence to give as to the layout of the family house. A reasonable explanation has not, in our judgment, been advanced for failing to call this evidence at trial.

The other fresh evidence is from the applicant's partner, Andrew Livingstone. He could not give firsthand evidence as to events in 2004 but was allowed to give evidence at trial of various investigations that he had undertaken into matters. His new statement deals in part with evidence obtained from further lines of investigation that he has pursued since the trial and in part with his commentary on the course of the trial. First, he explains the assistance that he gave the applicant in complaining about the police's conduct in interviewing him in October 2018 without the presence of an appropriate adult and his dissatisfaction with trial counsel's failure to deal with that point properly. Secondly, he alleges that a Detective Constable gave false evidence. Thirdly, he sets out new information that he says undermines Mr Cooper's evidence at trial that he had stopped at a BP garage at around 2.00am on the night of these incidents. Fourthly, he sets out social media material that he found in April 2025 that is said to contradict Mr Cooper's evidence at trial about his alcohol consumption. Fifthly, he sets out social media material that he found in June 2025 that is said to indicate that Mr Cooper might have breached reporting restrictions. Sixthly, he sets out further social media material that is said to indicate that Mr Cooper admitted tax evasion. Seventhly, he asserts that Mr Cooper's evidence to the jury that "he never wore jeans then" was contradicted by an old photograph of him in jeans in hospital shortly after the alleged incident. Eighthly, he sets out evidence of Mr Cooper's sexual behaviour at the time of the alleged incident.

We are grateful for the amended Respondent's Notice that has been provided at very short notice to address these issues and to Phillip Farr, who appeared for the prosecution at trial and has attended this hearing should we have needed further assistance with these grounds or with his Respondent's Notice.

We agree with the prosecution that not all of this evidence would have been admissible at trial, at least without legal argument and careful consideration by the trial judge. In particular:

No good reason is advanced for ambushing the prosecution one week before this appeal hearing with alleged discrepancies as to the extent to which the complainant wore jeans in 2004, his drinking, or his recollection as to the petrol station at which he stopped on the night of this incident. Upon Mr Livingstone's evidence, those discrepancies have been known since at least June 2025. They are not in our judgment matters that even taken together give rise to a realistic prospect of establishing that the applicant's convictions are unsafe.

The second new ground develops the issue of the breach of the code under the Police and Criminal Evidence Act 1984. The applicant's underlying mental health difficulties and his anxiety and depression were known at trial. In any event, any breach of the code does not of itself render anything said in interview inadmissible. The ultimate test under section 78 of the Act is whether "it appears to the court that having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." The touchstone is fairness and not whether the evidence obtained in breach of the code might be damaging.

Despite the issue being known at trial and defence counsel having evidence available to him about the applicant's mental state, no challenge was made to the admissibility of the interview. Further, neither the admission of the interview nor trial counsel's failure to take that point were identified as possible grounds of appeal when fresh counsel undertook a thorough review of this case for the purpose of advising on the merits of an appeal against conviction. In addition, in so far as this new ground seeks to criticise the conduct of the applicant's defence, it has been raised at such a late stage that there has been no time to seek the applicant's waiver of privilege and the observations of trial counsel in accordance with the procedure in R v McCook [2014] EWCA Crim. 734. We also observe that the video of the interview was played to the jury and that the judge properly summed up both this evidence and the applicant's evidence as to his confused mental state at that time.

The third new ground concerns alleged investigative failures in 2004. The unavailability of evidence from the 2004 investigation was the subject of an unsuccessful application to stay the indictment as an abuse. The subsequent upholding of a complaint against the police's conduct does not change the fact that this evidence was not available at trial. Neither trial counsel nor his successor considered that there was any arguable ground of appeal arising from this lack of evidence or from the evidence given by the Detective Constable about the 2004 investigation. Further, no good reason has been provided for raising this matter one week before this hearing.

It is also argued that the parents can now give evidence but that they were never asked to give statements in the course of the 2004 investigation. No explanation is, however, given as to why if that is important to the applicant's case, such evidence was not adduced from his father when he gave his evidence to the jury or why his mother was not called to give such evidence. Further, in so far as the answer to that question is to blame trial counsel, no opportunity has been given to counsel to make any observations upon such criticism.

The fourth new ground concerns the judge's conduct of the trial. The complaint as to the lack of balance in a draft direction is academic since the judge accepted defence counsel's submissions and modified that direction.

Detailed criticisms of the summing-up and comments made by the judge are surprising at this stage given that there was no complaint from trial counsel at the time and neither trial counsel nor the applicant's new counsel instructed on appeal identified any arguable appeal from the judge's directions in summing-up. Nevertheless, we have read in full the judge's legal directions and his summing-up. We can detect no imbalance and the judge was at all times astute not to tell the jury what to think but only to summarise the evidence both against and for the applicant.

We therefore reach the following conclusions.

For these reasons, the applicant has failed to overcome the high hurdle faced by an applicant seeking to rely on fresh grounds so long out of time. Accordingly, we refuse permission to rely upon the fresh grounds. Further, there being no merit in the jury irregularity ground, we refuse the applications for an extension of time and for leave to appeal against conviction.