Tinsley, R v

Evidence is admissible only if it is logically probative or disprobative of a fact in issue. That common-law requirement remains a condition of admissibility under the statutory hearsay provisions and under the provision governing proof of convictions.

Proof that a complainant made true allegations of abuse against other persons does not, without a relevant connection to the defendant, make it more likely that the complainant is telling the truth about the defendant. It is inadmissible if its sole purpose is to bolster the complainant’s credibility. Such use is impermissible oath helping.

The appellant was convicted at Liverpool Crown Court of two counts of indecent assault and received concurrent sentences of five years’ imprisonment.

The prosecution had placed before the jury a deceased grandfather’s police interview admitting abuse of the complainant, and evidence that the complainant’s step-grandfather had been convicted after pleading guilty to offences against her. The evidence was admitted under sections 114 or 116 of the Criminal Justice Act 2003 and section 74 of the Police and Criminal Evidence Act 1984.

On appeal, the central issue was whether the truth of allegations against other men was relevant to the appellant’s alleged abuse, or was merely evidence intended to support the complainant’s credibility.

1. Disposition. The appeal was allowed and a retrial was ordered. The evidence concerning the grandfather and step-grandfather had been wrongly admitted.
2. Relevance. The common-law requirement of relevance remained applicable. Under section 114(3) of the Criminal Justice Act 2003, hearsay must be relevant before it is admissible. The same requirement applied to section 116(1)(a), because oral evidence from the unavailable maker would itself have to be admissible, and to section 74 of the Police and Criminal Evidence Act 1984.
3. Credibility evidence. The admissions and conviction could not prove whether the appellant abused the complainant. There was no suggestion of joint activity or another connection between the appellant and the other men. Their only possible use was to invite the jury to infer that, because the complainant had been truthful about them, she was truthful about the appellant. That was not logically probative of the fact in issue and amounted to impermissible oath helping.
4. Important explanatory evidence. The court did not exclude the possibility that the material might have been capable of being important explanatory evidence under section 100 of the Criminal Justice Act 2003. The Crown had not sought leave on that basis, however, and the court could not assume that the trial judge would have admitted it after considering the statutory conditions.
5. The judge had also failed to give the intended direction on the permissible use of the evidence. That omission might not alone have made the convictions unsafe, but the erroneous rulings on admissibility required the appeal to be allowed.

• Court of Appeal (Criminal Division)—allowed the appeal, set aside the convictions through the appeal, and ordered a retrial: [2006] EWCA Crim 2006.
• Liverpool Crown Court—the appellant was convicted before Her Honour Judge Steele of two counts of indecent assault and sentenced to concurrent terms of five years’ imprisonment.