Leaver, R. v

A jury may use previous-conviction evidence only for an issue to which it has a real evidential bearing. Where it is admissible to show a propensity to degrade or insult women for sexual gratification, it cannot also be used to assess the defendant’s truthfulness or intention to cause really serious injury unless the earlier offending rationally bears on those issues.

A serious and unclear bad-character direction may make convictions unsafe. This is so where the jury may have used the wrongly directed evidence on one count and then relied on that conclusion when considering another count.

The appellant was convicted at Liverpool Crown Court of rape and causing grievous bodily harm with intent. The sexual activity initially took place consensually. The prosecution alleged that consent to intercourse was later withdrawn. It was also alleged that the appellant subsequently punched the complainant, causing serious facial injuries.

Before trial, evidence of the appellant’s earlier conviction for indecent exposure was admitted as bad-character evidence. In summing up, the judge directed the jury that it could bear on the appellant’s truthfulness and on the use of violence, as well as on propensity. The appeal challenged those directions and the safety of both convictions.

1. Appeal allowed. The court quashed both convictions as unsafe and ordered a retrial on a fresh indictment.
2. The earlier conviction could properly be put before the jury as evidence bearing on whether the appellant had a propensity to degrade and insult a woman for his sexual gratification. A direction confined to that purpose would have attracted no valid complaint.
3. The judge wrongly extended the evidence to the truthfulness of the appellant’s police account. The earlier indecent exposure had no rational bearing on whether his account of the present events was truthful. The direction was also wrong to the extent that it suggested relevance to the issue concerning the use of violence. The violence was admitted; the only issue on count 2, charged under section 18 of the Offences Against the Person Act 1861, was whether the appellant intended really serious bodily harm. The earlier offence did not bear on that intention.
4. The direction risked suggesting that the earlier offence involved violence, although it did not. Its reference to a similarity in sexual words used in the two incidents did not explain a legitimate evidential use to the jury.
5. Although the jury were told to consider the counts separately, the judge had suggested that they consider count 2 first and use their conclusion to assist with count 1. There was a real risk that the jury wrongly used the previous conviction on count 2 and that this infected its later consideration of count 1. The strength of other evidence did not remove that risk.

• Court of Appeal (Criminal Division)— Appeal against conviction allowed; both convictions were quashed and a retrial ordered: [2006] EWCA Crim 2988.
• Crown Court at Liverpool— On 19 August 2005, the appellant was convicted of rape and causing grievous bodily harm with intent, and received concurrent sentences of 14 years’ imprisonment.