Appeal against 2004 convictions allowed on referral from the Criminal Cases Review Commission
R v France CCA 15/12/09
On a referral from the Criminal Cases Review Commission, the Court of Appeal allowed an appeal against convictions on six counts of rape and indecent assaults following the appellantâs trial in 2004.
Moses LJ held that evidence of the defendantâs longstanding congenital penile curvature, which was clearly available to defence counsel at the original trial but had not been adduced before the jury, was likely to have had a significant effect upon the course of the trial and the jury verdicts.
The complainant had confirmed in cross examination that he had observed nothing unusual in the appearance of the appellant's genitalia; despite this response, no evidence of the significant curvature was subsequently adduced. Efforts to obtain an explanation for the omission from trial counsel had failed to shed any light on the issue.
Given that medical evidence was now available to support the significant visible curvature and the duration of the condition, and given that the appellant could not be blamed for not volunteering evidence where he had never been asked about it, the Court held that they could find no rational explanation for the failure to adduce this evidence and the convictions were unsafe.