Bright, R v

An out-of-court statement tendered solely to prove that it was made, rather than the truth of its contents, is not hearsay. Its admission still depends upon relevance. Allegedly false complaints made by a non-witness will not ordinarily assist an assessment of the credibility of witnesses at trial merely because collusion is alleged. A trial judge may exclude collateral material lacking sufficient relevance, particularly where it would create peripheral disputes and distract the jury.

Where a defendant’s previous convictions are before the jury, a proper direction ordinarily addresses both credibility and propensity. The jury must be warned against using convictions as propensity evidence. The Court of Appeal upheld the convictions but reduced the aggregate sentence under the totality principle.

The appellant was tried before HHJ Haworth and a jury at Cambridge Crown Court for historic sexual offences against young girls, including relatives and children known through family friends and the Girls Brigade. Ten convictions for indecent assault and indecency with a child followed; he was acquitted on one count. The court imposed a total sentence of seven years’ imprisonment.

On appeal, the appellant challenged rulings and directions concerning a non-attending complainant’s witness statement, specimen counts, an asserted alibi, delay, and his previous convictions. He also appealed his sentence. The central issue was whether any alleged error rendered the convictions unsafe and whether the aggregate term was excessive.

1. The appeal against conviction was dismissed. The court held that the trial judge had mischaracterised the proposed evidence from Lynne Herbert’s statement as hearsay. The defence sought to prove that certain complaints had been made, rather than their truth. It was neither desirable nor realistic to require the defence to introduce her entire statement under section 23 of the Criminal Justice Act 1988.
2. The exclusion ruling was nevertheless correct because the material lacked sufficient relevance. Whether Lynne Herbert had made false allegations was not probative of whether the complainants who gave evidence were truthful. The evidence did not establish collusion, and it would have invited a peripheral inquiry into selected passages from a non-witness’s statement. The court applied the flexible approach to collateral evidence in private sexual cases stated in R v Summers [1999] Crim LR 745 and R v Funderburk (1990) 90 Cr App Rep 466. The judge’s discretionary decision was neither wrong in principle nor plainly wrong.
3. No alibi direction was required on the evidence. The use of a specimen count for Helen Wing created no realistic risk that the jury convicted on an incident other than the one clearly recalled. The summing-up, including its treatment of inconsistencies and delay, did not undermine the burden of proof or render the verdicts unsafe.
4. Although the judge inaccurately said that the appellant’s previous convictions had been adduced because he attacked the complainants’ credit, the convictions were before the jury through the appellant’s own evidence. The judge properly gave directions on both credibility and propensity and adequately warned against propensity reasoning.
5. The appeal against sentence was allowed. Applying totality, the court held that seven years was excessive. The long delay, the separate Cardiff convictions, and the fact that the offences were not at the highest level of seriousness justified reducing the aggregate sentence to four and a half years’ imprisonment.

1. Court of Appeal (Criminal Division) The appeal against conviction was dismissed. The appeal against sentence was allowed and the total term was reduced from seven years to four and a half years’ imprisonment.
2. Cambridge Crown Court (HHJ Haworth) On 27 September 2001, the appellant was convicted of ten historic sexual offences and acquitted on one count. He received a total sentence of seven years’ imprisonment.