Shukla v R.

A warning about possible contamination of a complainant’s evidence is required where the evidence or the defence case raises a realistic possibility that an allegation, or its detail, was influenced by what the complainant heard from others. It is not required where the issue at trial is simply whether the allegations were wholly fabricated.

Evidence of a recent complaint is not independent proof that the complaint was true. It may show consistency with the complainant’s account. Section 34 of the Criminal Justice and Public Order Act 1994 concerns a failure to mention facts later relied upon, not a defendant’s change of account. Where it is engaged, the judge must decide whether an adverse inference is permissible and direct the jury accordingly.

The appellant, a general practitioner, was convicted at Harrow Crown Court of two counts of indecent assault on two teenage part-time employees. He was acquitted of a third count and the jury did not reach a verdict on a fourth, more specific allegation.

He appealed against the two convictions. He contended that the judge should have warned the jury about possible contamination arising from discussions between the complainants; that the direction on recent complaints was defective; and that the judge improperly invited adverse inferences from differences between his police interview and trial evidence.

The central issue was whether any of those directions, or the absence of a direction, rendered the convictions unsafe.

1. Appeal dismissed. The convictions on counts 1 and 3 were safe.

2. The court held that no warning about innocent contamination was required. The defence had alleged complete fabrication, rather than that the complainants had innocently misunderstood, exaggerated, or influenced each other’s accounts. The jury had in any event shown a careful assessment of the evidence by acquitting on one count and failing to agree on the most serious allegation.

3. The direction on recent complaint was adequate. Although it could have dealt with each complainant separately, it correctly conveyed that a complaint, if made, was not independent evidence of its truth but was capable only of demonstrating consistency.

4. Section 34 of the Criminal Justice and Public Order Act 1994 was potentially engaged by the appellant’s failure in interview to mention the handyman and neighbour later relied upon in relation to count 4. It was not engaged by differences between his interview account and his trial account concerning the girls’ work and their alleged dismissal. A changed account was an ordinary matter of credibility for the jury, without a special statutory warning.

5. Where section 34 is potentially engaged, the judge must rule whether an adverse inference may properly be drawn. If so, the jury must receive the full direction; if not, they must be told that no adverse inference may be drawn. The judge erred by leaving the jury free to draw an inference about count 4 without either course. That error did not undermine counts 1 and 3, since the jury did not convict on count 4 and the separate inconsistencies bearing on the appellant’s credibility in relation to the convictions were substantially stronger.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction.
• Crown Court at Harrow: convicted the appellant by majority verdicts on two counts of indecent assault; acquitted him on one count and discharged him after the jury failed to agree on a further count.