Lamb, R. v

Where allegations on separate counts are cross-admissible as bad-character evidence, the jury must receive a clear warning about both dishonest collusion and the risk that complainants have consciously or unconsciously influenced each other’s accounts. A direction confined to collusion is inadequate where the evidence reveals a real possibility that later discussions caused a complainant to reinterpret events or altered the detail of an allegation.

The jury must take that risk into account when deciding the weight, if any, to give the cross-admissible evidence. The judge need not stop the case unless satisfied that the evidence is contaminated and that a conviction would be unsafe under section 107 of the Criminal Justice Act 2003. However, failure to give the necessary warning may itself render convictions unsafe.

The appellant, a teacher and head of sixth form, was convicted at Chelmsford Crown Court of two offences of sexual activity with a child by a person in a position of trust, contrary to section 16(1) of the Sexual Offences Act 2003. Each count concerned a different 17-year-old pupil and an incident at the end of a school leavers’ ball.

The prosecution evidence on each count was treated as cross-admissible. The two complainants had learned of each other’s allegations and had extensive discussions before making their joint report. One complainant said that learning of the other incident caused her to reassess her own experience.

The appeal concerned whether the trial judge’s direction sufficiently addressed the risk of innocent contamination, rather than dishonest collusion, when inviting the jury to use one allegation in support of the other.

1. Appeal allowed; convictions quashed. The judge’s omission of a warning about innocent contamination was a material misdirection which went to the heart of the case and rendered both verdicts unsafe.

2. Under the Criminal Justice Act 2003, evidence tending to prove one of several counts may constitute bad-character evidence in relation to another count and may be cross-admissible through the section 101 gateway. The statutory scheme displaced the former common-law rules. The issue was not the admissibility ruling, which had become common ground, but the use the jury could properly make of the evidence.

3. Section 107 distinguishes a case in which the judge is satisfied that evidence is contaminated and a conviction would be unsafe, when the case must be stopped or the jury discharged, from a case in which collusion or suggestion is merely a live possibility. In the latter case the issue is ordinarily one of weight for the jury, with an appropriate warning.

4. Here, the evidence gave rise to a clear possibility of conscious or unconscious influence. The complainants had discussed their accounts at length; one had initially regarded the event as a drunken mistake, then reassessed it after hearing of the other allegation; and the other had reported only after extended discussions and persuasion. The jury should have been directed to take those matters into account in deciding the weight of the allegations.

5. The judge repeatedly directed on dishonest fabrication, although collusion had not been alleged, but did not connect the later reminder about the discussions with the cross-admissibility direction. That incorrectly encouraged the jury to give the evidence full mutual support once collusion was rejected. The directions about similarities also did not assist: any account of similarities must be balanced and confined to matters capable of supporting a propensity inference. As R v Chopra [2006] EWCA Crim 2133 and Hanson had emphasised, sufficient similarity and the likelihood of innocent coincidence are relevant considerations.

• Court of Appeal (Criminal Division): Allowed the appeal in [2007] EWCA Crim 1766 and quashed both convictions.
• Chelmsford Crown Court: On 9 August 2006, convicted the appellant on two counts under section 16(1) of the Sexual Offences Act 2003. On 25 October 2006, imposed concurrent suspended sentences of 40 weeks’ imprisonment and unpaid-work requirements.