Kinsey, R. v

Where evidence from several complainants is relied on as mutually supportive, the jury must be directed to consider whether the witnesses may have collaborated or been influenced by others. If that issue has fairly been raised, the absence of direct evidence of collusion does not remove the need for a direction requiring the jury to be sure that there was no collaboration.

A failure to give that direction can render convictions unsafe where the jury may have used the evidence of potentially collaborating complainants to support other allegations.

The appellant was convicted at the Crown Court at Worcester of seven counts of indecent assault involving three former pupils of a school adjoining the abbey where he had been a novice monk. He was acquitted on the remaining counts.

On appeal, he contended that the judge had misdirected the jury on similar-fact evidence. Although the defence suggested that the timing of complaints by two complainants was suspicious, the judge told the jury that the witnesses had not collaborated rather than requiring them to be sure of that fact. A further ground alleged an inadequate summing-up of the evidence concerning the third complainant.

1. Appeal allowed. The convictions were unsafe and were quashed. A retrial was ordered.

2. The defence had sufficiently raised the possibility of collusion between two complainants. Their complaints were made close together after many years, and the defence had expressly relied on that timing before the judge and in its closing speech. Direct evidence of collusion was not required before the issue had to be left to the jury.

3. Following R v H [1995] 2 Cr App R 437, the judge should have directed the jury that, if collusion was in issue, they had to be sure that the witnesses had not put their heads together. Instead, the summing-up wrongly stated that the witnesses had not collaborated and that this was accepted by the defence. That was a material misdirection affecting the convictions concerning those two complainants.

4. The misdirection also affected the convictions involving the third complainant. The jury had been invited to use the evidence of the first two complainants as support for his evidence. It might therefore have relied on that evidence when assessing the timing and age-related aspects of the allegations against him.

5. The separate criticisms of the summing-up concerning the third complainant did not independently make the convictions unsafe. In a short trial, a judge may focus on the central issues rather than rehearse every item of cross-examination, provided the summing-up remains balanced. The identified omissions concerned background matters and were not central.

6. Despite the age of the allegations, the public interest justified a retrial. The appellant was to be arraigned again in the Crown Court.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed all convictions and ordered a retrial: [2005] EWCA Crim 1871.
• Crown Court at Worcester: Convicted the appellant on seven counts of indecent assault and imposed concurrent sentences of five years' imprisonment.