Sutton v R

Whether a jury needs a warning about unsupported allegations of sexual abuse, and the terms of any warning, are ordinarily matters for the trial judge’s judgment. An appellate court should not interfere merely because it might have framed the warning differently.

In a delayed prosecution, the jury must consider whether the passage of time has caused a real disadvantage to the defendant and must scrutinise the evidence carefully while preserving the prosecution’s burden of proof. The prospect, expectation, or later pursuit of compensation does not of itself make a complainant’s evidence unreliable. Inconsistent verdicts warrant intervention only where no reasonable jury could have reached them.

The appellant, a former care worker and manager in children’s homes, was convicted at Liverpool Crown Court of 32 sexual offences against four former residents. He received a total sentence of 14 years’ imprisonment.

He appealed on grounds concerning directions on unsupported evidence and delay, disclosure connected with the police investigation known as Operation Care, compensation claims, improper cross-examination, alleged inconsistent verdicts, and fresh evidence. The fresh evidence included a purported retraction by one complainant, JA, who declined to attend the appeal to confirm or deny it.

The central question was whether any of those matters rendered the convictions unsafe.

1. The appeal was allowed in part. The convictions relating to JA were unsafe and were quashed. The remaining convictions were upheld, and the total sentence was reduced from 14 years to 10 years’ imprisonment.

2. The trial judge’s warning on the need for care before relying on unsupported complainants was comprehensive and adequate. Whether such a warning is required, and its strength, is generally a matter for the trial judge: R v Makanjuola [1995] 2 Crim App Rep 469. The appellate court should not criticise an adequate warning merely because another formulation might have been used.

3. The direction on delay was also adequate. It properly required the jury to consider whether delay had prejudiced the appellant and linked that issue to the prosecution’s burden to prove guilt. A general direction was sufficient because the allegedly missing records and witnesses had not caused identifiable prejudice to the convictions under challenge. The judge’s observation that delayed complaints may sometimes be understandable did not dilute the direction; read as a whole, it required the jury to take any real disadvantage to the appellant into account.

4. There was no evidence that police had improperly primed any complainant about compensation. A complainant’s hope, expectation, or later claim for compensation does not itself establish that the evidence is false or unreliable. It remains for the jury to assess whether any financial motive affects reliability.

5. The conviction on one specific count concerning PH was not inconsistent with acquittals on later specimen counts. A conviction may stand where the jury accepted evidence of one incident but considered later allegations exaggerated or insufficiently definite. The appellant had not shown that no reasonable jury could have returned those verdicts.

6. The court admitted evidence that JA had made a post-trial retraction, but JA would not attend to support or deny it. In the unusual circumstances, that left complete uncertainty on the reliability of his trial evidence. The court could not be sure that the convictions founded on that evidence were safe. That uncertainty did not affect the separate convictions concerning the other complainants, since there was no alleged collusion or cross-support between their allegations.

• Court of Appeal (Criminal Division) Granted leave and allowed the appeal in part, quashing the convictions relating to JA while upholding the remaining convictions: [2005] EWCA Crim 190.
• Crown Court at Liverpool Convicted the appellant of 32 sexual offences and imposed a total sentence of 14 years’ imprisonment.