Simmons [2018] EWCA Crim 2534

This case was a referral from the CCRC on the basis that the prosecution failed to disclose relevant and admissible material and misled the defence in their response to defence disclosure requests.

The defence asked for any material relating to previous allegations made against the complainant’s grandfather and a summary of any decision to withhold material. A DC was asked to review the material for secondary disclosure and provided a report which was not sent to the defence. The prosecutor responded to defence letters setting out certain information but adding that there was nothing more to disclose. The Crown were subsequently directed to carry out a review of social services files for material of potential relevance. The CCRC were unable to establish whether prosecuting counsel had reviewed the files as directed but concluded there was a strong inference they had not.

Material was unearthed by the CCRC that the Crown generally accepted should have been disclosed, in all around 20 items that were capable of undermining the Crown’s case. The appeal was approached firstly on the basis whether the material should have been disclosed and, secondly, whether the defence would have wished to deploy it.

The Court of Appeal echoed the Crown’s concerns that it was important when reviewing material that one “does not fall into the trap of equating unsubstantiated allegations with false allegations and of assuming from unsubstantiated allegations that a child who has responded with a cry for help has been guilty of unjustified attention-seeking.”

Held: it was accepted that had the defence known of the material they may have tried to obtain the judge’s permission to use it. It was the next stage that caused difficulties, ultimately, the only issue to cause concern was whether the general picture put before the jury was a sufficiently accurate one, and the Court was satisfied that it was. They were not satisfied, therefore, that the failure to disclose the material undermined the safety of the convictions and the appeals were dismissed.