Card, R v

Where bad-character evidence has been admitted, Criminal Justice Act 2003 section 107 imposes a mandatory safeguard. The trial judge must independently assess whether prosecution evidence has been contaminated and whether, given its importance, a conviction would be unsafe. Contamination may arise through collusion or pressure, but also innocently or inadvertently.

If those conditions are satisfied, the judge has no discretion to allow the trial to continue. The jury must be directed to acquit or discharged for a retrial. The ordinary sufficiency of the evidence for a jury does not displace that statutory duty.

The appellant was tried at Norwich Crown Court for two alleged sexual assaults on children under 13. The judge directed an acquittal on the count concerning the younger child but left the count concerning her brother to the jury. The appellant was convicted on that remaining count.

His previous convictions for sexual offences had been admitted as bad-character evidence. At the close of the prosecution case, he submitted both that there was no case to answer and that the witnesses’ evidence had been contaminated for the purposes of section 107 of the Criminal Justice Act 2003. The appeal concerned whether the count should have remained before the jury and whether the statutory duty to stop the case had arisen.

1. Appeal allowed. The conviction was unsafe and was quashed. The Crown did not seek a retrial, and the court held that one would not be appropriate.

2. The judge was entitled to reject the no-case submission on the count concerning Andrew. Although a trial judge may recognise obvious deficiencies in the prosecution evidence, questions of credibility and fact remain for the jury. The judge must not usurp that function. There was no basis for appellate interference with that ruling under R v Galbraith.

3. Section 107 of the Criminal Justice Act 2003 concerns the consequence, rather than the admissibility, of bad-character evidence. After such evidence has been admitted, it requires the judge to make an independent factual assessment of contamination. This is exceptional because contamination and collusion would ordinarily be matters for the jury if the trial continued.

4. Contamination may result from deliberate collusion or improper pressure. It may also arise innocently or through inadvertence. Once the judge is satisfied that there has been important contamination and that, having regard to the importance of the evidence, a conviction would be unsafe, the statutory consequence is mandatory. The trial must be stopped by a direction to acquit or by discharging the jury for a retrial. The existence of a conventional case to answer is immaterial.

5. Here, the children’s evidence, the development of the allegation concerning the younger child, and their evidence that their mother had told them what to say provided plain evidence that one child’s evidence had changed and made it virtually inescapable that the other child’s evidence had also been affected. The section 107 conditions were met. The jury should have been discharged.

6. The court also suggested, obiter, that where a responsible contamination issue is raised when the prosecution seeks to admit bad-character evidence, it will normally be sensible to defer the admissibility decision until the relevant witnesses have given evidence.

• Court of Appeal (Criminal Division): allowed the appeal in [2006] EWCA Crim 1079, quashed the conviction, and ordered no retrial.
• Crown Court at Norwich: the judge directed an acquittal on count 1 at the close of the prosecution case. A jury convicted the appellant on count 2.