BL, R v

Evidence of an earlier consistent complaint may be admitted to rebut an allegation of recent fabrication where the defence case raises a real inference that the account was invented after the relevant events. The statement must be sufficiently early, and sufficiently similar to the witness’s evidence, rationally to answer that inference.

Such evidence has a strictly limited use. Clear directions may confine it to the date at which the account was first made, rather than proof of its truth. In sentencing historic sexual offending, seriousness remains central, but advanced age, infirmity and personal circumstances may make an otherwise appropriate custodial term manifestly excessive.

The appellant was convicted at St Albans Crown Court of four counts of indecent assault and two counts of indecency with a child against his granddaughter. The alleged offending occurred when she was aged between seven and 13. More than 20 years later, she reported the allegations to police.

At trial, the complainant’s mother gave evidence that the complainant had made a limited complaint when she was 13 or 14. The evidence was admitted after cross-examination as rebutting an allegation of recent fabrication. The appellant appealed against conviction, challenging both its admission and the judge’s directions on its use. He also appealed against concurrent sentences totalling five years’ imprisonment, relying on his age and chronic ill-health.

1. The appeal against conviction was dismissed. The defence case, including the appellant’s police interview and the challenge to the alleged confrontation in the 1980s, raised a real inference that the complainant had fabricated her account only after contact with the appellant had ceased. The judge was therefore entitled to admit her earlier complaint to her mother under the exception identified in Oyesiku [1972] 56 Cr. App. R 240. The complaint was sufficiently early to rebut that inference and was not admitted as proof that the allegations were true.
2. The judge’s summing-up adequately confined the evidence to its limited purpose. Unlike Islam [1999] 1 Cr.App.R 22, the jury were repeatedly told that the evidence established only when the complainant first made an allegation. An express statement that it could not itself prove the complaint true would have been preferable. However, the directions given left no real possibility that the jury would treat it as corroborative proof of the allegations.
3. The appeal against sentence was allowed. Applying the approach in Harold Nicholas S [1978] 1 Cr. App R (S) 261, sentence had to reflect the seriousness and prolonged nature of the offending while taking account of the appellant’s age, infirmities and circumstances. Although a substantial sentence would ordinarily be required, five years’ imprisonment was manifestly excessive for this 83-year-old appellant with chronic illnesses. The five-year terms were quashed and replaced by concurrent terms of two and a half years on counts 1, 3 and 5, and 18 months on counts 2 and 6, producing a total sentence of two and a half years.

• Court of Appeal (Criminal Division) — In [2004] EWCA Crim 303, dismissed the appeal against conviction but allowed the appeal against sentence, substituting concurrent sentences producing a total of two and a half years’ imprisonment.
• Crown Court at St Albans — The appellant was convicted by a jury on 10 September 2003 of four counts of indecent assault and two counts of indecency with a child. On 6 October 2003, Judge Cripps imposed concurrent sentences of five years’ imprisonment for the indecent assaults and two years for the offences of indecency with a child.