Jeneson, R v

A trial judge may leave a count to the jury where the prosecution evidence has serious weaknesses but its reliability remains capable of assessment by a properly directed jury. In historic sexual-abuse cases, that assessment must be undertaken with particular care.

Unproven allegations against a witness may be explored where they are relevant to possible partiality, rather than as proof that the witness committed them. The jury must be clearly directed not to assume that the allegations are true.

Similar-fact evidence requires careful, individual assessment. Cross-support is available only where the supporting evidence is accepted as truthful, is independent, and has sufficiently specific similarities to exclude coincidence or influence. A general propensity to homosexual conduct cannot provide cross-support.

The appellant was convicted at Stafford Crown Court of five counts of indecent assault on a male, two counts of buggery and one count of assault with intent to commit buggery. The allegations concerned historic sexual abuse of boys in children’s homes where he had taught.

He appealed on three principal grounds. He contended that there was no case to answer on the buggery counts because of the deficiencies in one complainant’s evidence. He challenged the cross-examination of a defence witness about unproven allegations made against that witness. He also contended that the judge had wrongly directed the jury on similar-fact evidence and had failed to identify what evidence was capable of cross-supporting other allegations.

1. Appeal dismissed. The convictions were safe.

2. The trial judge was entitled to leave the two buggery counts to the jury. Although the complainant’s evidence had substantial shortcomings, the defects went to reliability and credibility, which were ordinarily matters for the jury. The judge had seen the witness and could properly conclude that the evidence was not incapable of belief on essential matters. The brief and informal ruling was not a model to follow, but there was no real risk that the judge had failed to apply the test in Galbraith 73 Crim App R 124. Gallo [2005] EWCA Crim 242 was distinguishable because the deficiencies there concerned the very subject matter of the indictment and there was a possible misdirection as to the applicable test.

3. Cross-examination of Greensill concerning unproven allegations against him was permissible because its proper purpose was to explore whether he had an ulterior motive to give evidence favourable to the appellant. It was not tendered to prove that the allegations were true or merely to attack his credit. The principle in Maxwell v DPP [1935] AC 309, concerning the unfair use of unproven allegations, did not prevent such questioning on the distinct issue of partiality. The judge made sufficiently clear that the prosecution was bound by Greensill’s denials and that the allegations could not be treated as true.

4. Evidence on one count did not become admissible on another merely because all counts were tried together. The jury directions nevertheless gave adequate protection. The jury were told to use cross-support only if sure that the supporting witness was truthful and accurate, that there had been no collusion or influence, and that the similarities were sufficiently specific to go beyond coincidence. The judge also correctly excluded any use of a general propensity to homosexual conduct as cross-support.

5. Although a more detailed count-by-count capability exercise might, in theory, have been possible, it would have been unhelpful and disproportionate in this case. The pragmatic and illustrated directions prevented inappropriate use of similar-fact evidence. There was no danger that the jury had treated unproven, materially dissimilar, or collusive allegations as mutually supporting.

• Court of Appeal (Criminal Division): Dismissed the appeal and held that the convictions were safe: [2005] EWCA Crim 1984.
• Stafford Crown Court: The appellant was convicted by a jury on 25 November 2004 of offences including indecent assault, buggery and assault with intent to commit buggery.