Lowe v R

Where allegations of prior misconduct are admitted as bad-character evidence, the jury must receive a direction tailored to their permitted use. The judge should identify each incident, require proof to the criminal standard, direct that unproved allegations be disregarded, explain the relevance of proved incidents, and warn against excessive weight or an adverse conclusion based merely on bad character. Treating such evidence as part of the general relationship history does not remove that need. A material failure to give the direction may render a conviction unsafe.

The appellant was convicted at Croydon Crown Court of raping his former partner. The jury did not reach a verdict on a second rape count, on which the prosecution offered no further evidence.

Before trial, the prosecution obtained a ruling admitting allegations of earlier conduct towards the complainant as bad-character evidence. The judge did not give a specific direction on the jury’s use of that evidence, considering it part of the relationship history. The appeal principally concerned whether that omission made the conviction unsafe.

1. The appeal against conviction was allowed. The judge erred by declining to give a direction on the use of the incidents admitted under his bad-character ruling. Their relationship to the general history between the parties did not remove their separate evidential status.
2. The jury should have been directed to identify the particular admitted incidents and decide, in respect of each, whether the prosecution had proved it so that they were sure. Any incident not proved had to be put aside.
3. For any proved incident, the jury should have been told its limited potential significance: it could shed light on the relationship and therefore on the complainant’s potential consent to sexual advances. They also required a warning that an alternative interpretation might undermine the prosecution’s case and that too much weight should not be attached to the evidence.
4. The court applied the tailored-direction guidance in R v Campbell [2007] EWCA Crim 1472. It also drew an analogy with the two-stage approach of a Lucas direction: proof of the prior event must precede assessment of its significance.
5. The omission was material and rendered the conviction unsafe. The conviction was quashed. The renewed application concerning sentence was consequently otiose. The court declined leave on the appellant’s remaining conviction grounds.

The court additionally observed that bad-character applications and rulings should identify the alleged incidents specifically. A broad, unspecific application risks obscuring the evidence admitted and the consequent need for a jury direction.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed the conviction: [2007] EWCA Crim 3047.
• Croydon Crown Court The appellant was convicted by an 11–1 majority of rape on 13 November 2006. The jury did not reach a verdict on a second count, on which a not-guilty verdict was entered after the prosecution offered no further evidence. On 22 December 2006 he was sentenced to five years’ imprisonment and a recommendation for deportation was made.