L, R v

Where one complainant’s account may have influenced another’s, the jury should not use one account to support the other unless satisfied that it is independently true. The direction must be tailored to the real issues. It need not use a formula where the only realistic explanation for a false account is an attempt to support the other complainant.

Criminal Procedure Rules require active and fair trial management. A judge may control time, focus cross-examination, and ask whether proposed evidence remains relevant. Robust management does not make a conviction unsafe unless it prevents a fair presentation of the defence. A failure to call evidence which adds virtually nothing will not undermine the safety of a conviction.

The appellant was convicted at Warwick Crown Court of offences including rape, gross indecency with a child, sexual assault and indecent assault arising from allegations that he had sexually abused his nieces over a lengthy period. He was acquitted on one count.

He appealed against conviction, with leave, on grounds concerning the direction on possible witness influence, the failure to call two young relatives, the trial judge’s management of defence evidence and cross-examination, and judicial comments following his explanation for a no-comment police interview. He also appealed against sentence because two sentences exceeded the maximum available at the time and an extended licence period had been imposed without a clear statutory basis.

1. Convictions upheld. The court held that the convictions were safe. Although a direction is generally required where one witness’s evidence may unconsciously influence another’s, the judge had adequately directed the jury to use BL’s evidence in support of EB’s only if sure that BL’s account was true. In the circumstances, that necessarily addressed the only realistic concern: that BL had fabricated her allegation to support her sister. The direction was properly tailored and did not require further formulaic elaboration.

2. The evidence of SK and RM was admitted de bene esse under section 23 of the Criminal Appeal Act 1988. It was capable of belief but added virtually nothing. Even if the decision not to call them at trial had been negligent, it was not flagrant incompetence and did not cast doubt on the safety of the convictions.

3. The trial judge had acted within proper limits in actively managing the trial. The court applied the guidance in R v Chaaban [2003] EWCA Crim 1012, R v Jisl, Tekin, Konakli [2004] EWCA Crim 696, and R v K & others [2006] EWCA Crim 724. The judge could prevent repetition, keep cross-examination focused, and invite counsel to reconsider evidence already covered by other witnesses. The transcript disclosed no improper pressure to abandon the defence case. If counsel wished to call evidence despite a judicial indication that it was irrelevant or inadmissible, counsel should seek a ruling; a ruling excluding the evidence could then be challenged on appeal.

4. The judge’s comments about the appellant’s allegations concerning the police interview could more appropriately have been discussed first in the jury’s absence. However, the judge directed the jury to disregard the episode and later left the relevant issue fairly to them. The intervention did not affect the verdicts.

5. Sentence varied. The four-year sentences on counts 6 and 13 exceeded the maximum then available. They were quashed and replaced with concurrent sentences of 21 months. The extended licence period was also quashed because the judge had found the appellant unlikely to reoffend and the applicable statutory basis could not be identified.

• Court of Appeal (Criminal Division): Conviction appeal dismissed. The sentences on counts 6 and 13 were quashed and replaced with 21-month concurrent sentences; the extended licence period was quashed: [2007] EWCA Crim 764.
• Warwick Crown Court: The appellant was convicted on 13 April 2005 of multiple sexual offences and sentenced to concurrent custodial terms, with an extended licence period.