Alan V, R. v

A late decision to permit mutual support between complainants does not by itself make convictions unsafe. The appellate court must assess whether the issue of collusion or contamination was sufficiently explored at trial and whether the defence would realistically have conducted the trial in an essentially different way had it received earlier notice.

Where similar-fact evidence may support one complainant’s account by another’s, the jury must receive clear directions on both deliberate collusion and innocent contamination. A real possibility of deliberate collusion prevents reliance on the evidence as mutual support. A possibility that a complainant was consciously or unconsciously influenced requires the jury to consider what weight, if any, to give it. Unclear directions on these matters may render convictions unsafe.

The appellant was convicted at Kingston upon Thames Crown Court of sexual offences against his daughter and his niece, alleged to have occurred many years apart. The prosecution initially opened the case on the basis that the evidence relating to each complainant was to be considered separately.

After the evidence had closed, the judge ruled that each complainant’s evidence could support the other’s allegations and directed the jury on mutual corroboration or similar fact. The appellant appealed, first contending that the late ruling had unfairly taken the defence by surprise, and secondly contending that the resulting directions were defective.

1. Appeal allowed. The court held that the convictions were unsafe because the directions on mutual corroboration or similar-fact evidence lacked the clarity required in this case.

2. The late emergence of the issue did not itself create an unfair trial. Although the prosecution had initially disavowed mutual corroboration, the possibility of collusion or contamination had been explored sufficiently in the evidence. The court was not persuaded that, with earlier notice, the defence would have conducted the trial in an essentially different way.

3. The summing-up was nevertheless defective. The jury should have been told clearly that, if there was a real possibility that the complainants had deliberately colluded to make false allegations, their evidence could not provide mutual support. The wording used did not convey that requirement with sufficient clarity.

4. The judge also failed to give adequate guidance on innocent contamination. The jury needed to consider whether either complainant might consciously or unconsciously have been influenced by hearing another complaint, whether as to making an allegation at all or as to its detail, and then decide the weight, if any, to give the evidence. That possibility was important given the family relationship between the complainants.

5. The allegations were old, the case was difficult, and the similar-fact issue arose only after the evidence. In those circumstances the directions needed to be especially clear. They were not, and the appeal against conviction therefore succeeded. The court deferred any application by the Crown for a retrial.

• Court of Appeal (Criminal Division): The appeal against conviction was allowed because the convictions were unsafe. The question whether the Crown would seek a retrial was adjourned.
• Crown Court at Kingston upon Thames: Before His Honour Judge Hucker and a jury, the appellant was convicted of sexual offences against two complainants and sentenced to terms totalling eight years’ imprisonment.