The Court of Appeal allowed an appeal against two rape convictions after finding that the jury may have been materially misdirected about corroboration. It did not decide what order should follow: it invited written submissions, including on whether there should be a retrial.
The judgment, delivered on 8 April 2020, concerned P. K.’s appeal against convictions returned at a retrial in the Central Criminal Court. The jury had convicted him in April 2017 of vaginal rape and anal rape. The Court of Appeal rejected his other grounds of appeal and allowed the appeal solely because of the direction on corroboration.
The trial judge told jurors that the complainant’s “demeanour” and “consistency” could be supportive or corroborative of the prosecution case. The appeal court said evidence of recent complaint may help a jury assess the complainant’s credibility and reliability by showing consistency, but it cannot itself amount to corroboration. The court found that describing consistency as potentially corroborative was a misdirection.
The appeal court considered whether that error could have affected the verdict. The jury had also received a warning that it was dangerous to convict without corroboration and that it should be extremely careful. The court said jurors might have treated consistency as corroboration and, as a result, felt less bound by that warning. It concluded that the possibility of material effect could not be ruled out.
Although the defence had said it was “happy with the charge” at trial and had not raised a requisition on the point, the court exercised its discretion to hear the ground on appeal. It said the explanation for the omission was not entirely satisfactory, but accepted it reluctantly in the unique circumstances of the case.
The court dismissed the challenges concerning adverse publicity, the admission of interview records and the refusal to withdraw the case from the jury over alleged prejudice arising from evidence not collected. It found no error in the trial judge’s decision on those matters.
The Court of Appeal directed the Director of Public Prosecutions to file submissions by 17 April 2020 and the appellant to reply by 24 April. It said it would communicate its intended orders on 28 April. This judgment did not state whether a retrial would be ordered.