202400687 B2 - [2025] EWCA Crim 966

In June 2023 the applicant was convicted of serious sexual offences against a child, which were alleged to have occurred in November 2021. His defence was one of complete denial that anything had happened. Before his 2023 trial, the prosecution applied to admit the fact that he had in 2017 been convicted after trial of an offence of sexual activity with a different child. At trial, the Defence sought to adduce evidence, not to challenge the fact of the 2017 conviction but to impugn the credibility of the complainant in the 2017 case. The proposed evidence was from three witnesses who had given evidence at the 2017 trial but who now were to say that the complainant in the 2017 trial had given different accounts at different times of the assault that was in issue in that trial. In the 2023 trial the defence were not able to procure their attendance. At the 2017 trial, the defence had not introduced evidence from those witnesses on oath but had applied to put in their section 9 statements. The 2023 trial judge refused the application to adduce their evidence in the current trial. The applicant gave evidence in his own defence in which he maintained his innocence of the earlier offence, claiming that the police had set him up.

At [20] the court summarised the issue and the relevant factors:

“20.

In the present case, the applicant was not seeking to call fresh evidence which might have proved that he was innocent of the offence of which he had been convicted, but to argue that his conviction was wrongful on precisely the same evidence on which a previous jury had convicted him. As the trial judge recognised, this was an invitation to conduct a rehearing of the earlier trial. Moreover, the previous offence was committed in circumstances in which only the complainant and the applicant were present. As HHJ Kamill said, in those circumstances it is difficult to see how adducing the evidence of three people who were not present and whose memories and reliability had already been assessed by the previous jury, could possibly assist.”

The Court agreed with the single judge’s refusal of leave on this ground “essentially for the reasons that he gave”. As he put it:

“Attempts, without material fresh evidence as to the primary facts, to argue that the first jury had simply got it wrong in convicting by advancing arguments as to the unreliability of the complainant at that trial were never going to prevail under s. 74 (3) of PACE. The trial Judge’s ruling on this aspect was justified.”

For those reasons, the renewed application for leave to appeal against conviction was refused.

Three features of the decision in Obi are to be noted. First, it was not a case where the trial judge prevented the defendant from attempting to rebut the evidential presumption in section 74(3). Second, there was no complaint that the judge had taken the issue away from the jury. Third, the decision that the excluded evidence was rightly excluded was based upon the assessment that adducing the evidence of three people who were not present at the time of the alleged offences and whose memories and reliability had already been assessed by the previous jury, could not possibly assist. There was therefore nothing more beyond the applicant’s maintaining his innocence, which was left to the jury and did not satisfy them.