M, R. v

A conviction is not unsafe merely because the jury were not given the usual direction to consider each count separately. The question is whether, in the circumstances and on the evidence, the direction created a real risk of an unsafe verdict. Where two allegations depend on the opposing credibility of the complainant and defendant, the evidence may properly be inseparable in practice.

Alleged failures by trial counsel require a reliable basis for concluding that the omitted evidence or enquiry would probably have assisted the defence. The Court must assess the asserted defects cumulatively and decide whether the convictions are unsafe overall.

The appellant was convicted at the Crown Court at Inner London of two counts of rape of his wife and received concurrent sentences of three years’ imprisonment. He appealed against conviction with leave of the single judge.

The appeal raised three grounds. First, the judge had not given the usual full direction requiring separate consideration of each count, despite differences in the complainant’s accounts of the two alleged incidents. Secondly, the appellant alleged that his trial lawyers had failed adequately to investigate or deploy evidence bearing on the parties’ relationship and the complainant’s credibility. Thirdly, he contended that prosecuting counsel’s closing speech improperly introduced hearsay material.

The central issue was whether, separately or cumulatively, those matters rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe.

2. The trial judge would have been wiser to give the usual direction that each count in an indictment must receive separate consideration. However, the case turned on the competing credibility of the complainant and appellant. Given the nature of the evidence, it was inherently unlikely that a jury would accept one allegation while rejecting the other. The jury could not realistically assess the first count without considering the evidence and discrepancies relating to the second. The judge’s observation reflected that reality and did not render either conviction unsafe.

3. The complaints about trial representation did not establish that the defence had been conducted incompetently in a manner affecting safety. Several matters had not been put to the complainant because counsel had received the relevant instructions or material only after she had given evidence. There was no reliable basis for concluding that further enquiries about the alleged earlier police complaint or the timing of a police telephone call would have assisted the defence.

4. The affectionate card sent while the complainant was in India was not sufficiently important to require counsel to reopen the defence case. Its provenance was doubtful, and its language was consistent with a recently married person hoping that the marriage would succeed. The omission to adduce it did not render the convictions unsafe.

5. The prosecutor’s brief reference in closing speech to a telephone conversation did not convey the inadmissible detail alleged by the appellant. In any event, the judge reminded the jury of the evidence actually given. Considering all matters cumulatively, the Court was not persuaded that the convictions were unsafe.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2006] EWCA Crim 1622.
• Crown Court at Inner London: The appellant was convicted on two counts of rape by a majority of 11 to 1 and sentenced to concurrent terms of three years’ imprisonment.