Francis, R v

An appeal against conviction succeeds only where an identified trial error renders the conviction unsafe. The exclusion of potentially relevant expert evidence does not meet that test where the jury had the substance of the point and the omitted detail could have had no significant effect on its verdict.

A jury should generally receive an appropriate warning on a complainant’s earlier account where it is not independent evidence of the alleged offence. Its omission will not make a conviction unsafe if the warning could have had no real effect, including where the evidence was deliberately used to test alleged inconsistencies.

Following a retrial at the Central Criminal Court, the appellant was convicted on 26 June 2003 of six counts of rape of his daughter and sentenced to 12 years’ imprisonment. The prosecution alleged repeated sexual abuse between 1995 and 1998. The appellant denied any sexual intercourse.

He appealed against conviction, challenging the refusal to require further particulars of the indictment, the exclusion on re-examination of measurements recorded by a medical expert, and the absence of a full direction on complaint evidence. He also renewed an application for leave to appeal against sentence. The central question was whether any alleged error rendered the convictions unsafe.

1. Appeal against conviction dismissed. The refusal to require further particularisation of the indictment caused no unfairness. Any identifiable incidents would have supplemented, rather than replaced, the existing counts, and the prosecution case could not be confined to a small number of isolated occasions.

2. The court held that the proposed evidence of the appellant’s measurements should have been admitted on re-examination. The Crown’s cross-examination had made the material admissible. In any event, a judge should hesitate before excluding potentially relevant evidence merely because it was not adduced in chief, unless it was deliberately withheld for later introduction or its late production would prejudice the prosecution.

3. That error did not render the convictions unsafe. The jury knew the expert’s opinion that the complainant’s physical condition was inconsistent with repeated full penetration by an adult male before puberty. The omitted measurements would not have made a decisive, or any significant, difference to the issue the jury had to decide.

4. An appropriate warning should generally be given on how to approach earlier complaint evidence. Here, however, the defence had wanted the jury to hear the earlier accounts in order to demonstrate inconsistency. The usual warning would have had no real impact, so its omission did not make the convictions unsafe.

5. The further proposed grounds disclosed no arguable error. The video evidence was properly admitted under the Youth Justice and Criminal Evidence Act 1999. The renewed application for leave to appeal against sentence was also dismissed because the 12-year sentence was within the applicable guideline range for offences of this gravity.

• Court of Appeal (Criminal Division)—by [2004] EWCA Crim 3156, dismissed the appeal against the retrial convictions and dismissed the renewed application for leave to appeal against sentence.
• Central Criminal Court—at the retrial on 26 June 2003, convicted the appellant of six counts of rape and imposed a total sentence of 12 years’ imprisonment.
• Court of Appeal (Criminal Division)—on 16 December 2002, allowed an earlier appeal from the 1999 convictions and ordered a retrial.