Boulton v R.

A witness may be absent through fear for the purposes of section 116(2)(d) of the Criminal Justice Act 2003 even where avoiding the trauma of giving evidence is an additional reason for absence. The court must assess the witness’s state of mind against the full history, including intimidation directly or indirectly attributable to the accused.

Similar-fact bad-character evidence may remain admissible under section 101 despite an earlier acquittal concerning that conduct, where the alleged incidents have sufficiently similar features. A jury direction treating that acquittal as wholly irrelevant is erroneous, but will not make a conviction unsafe if it could not have affected its safety.

The appellant was convicted at Lewes Crown Court before His Honour Judge Rennie of three counts of rape, false imprisonment, putting persons in fear of violence, and conspiracy to intimidate witnesses. He appealed, by leave, against the convictions on counts 1 to 5.

The first ground challenged the admission of the complainant’s statements after she concealed her whereabouts and did not attend trial. The judge found that she was absent through fear and permitted the statements to be read under section 116 of the Criminal Justice Act 2003.

The second ground challenged the admission of evidence from two witnesses concerning the appellant’s bad character. It also alleged that the combined effect of the absent complainant’s evidence and that bad-character evidence denied the appellant a fair trial.

1. Appeal dismissed. The trial judge was entitled to find that the complainant was absent through fear within section 116(2)(d) of the Criminal Justice Act 2003. The evidence established continuing fear of repercussions if she testified and entitled the judge to attribute the threats, directly or indirectly, to the appellant.

2. The complainant’s wish to avoid the emotional trauma of giving evidence did not resolve the issue in the appellant’s favour. That wish could coexist with fear. Her reluctance to identify those making threats, and the absence of further police inquiries into them, were relevant matters but did not displace the ample evidence of her fear. The history of violence, intimidation, efforts to locate her, and threats to other witnesses formed the proper context for assessing her state of mind.

3. Once those findings were properly open to the judge, he was entitled to permit the edited statements to be read. The appellant had denied the allegations in interview, gave evidence at trial, and was able to challenge the prosecution case. There was no resulting unfairness under Article 6.

4. The evidence of D was admissible bad-character evidence under section 101. The earlier acquittal on charges arising from D’s allegations did not prevent admission. Applying Z [2000] 2 AC 483, the court held that the alleged prior conduct had sufficiently similar features to the complainant’s allegations. There was no evidence of collusion, and the cumulative admission of D’s evidence and the complainant’s statements did not render the trial unfair.

5. The judge should not have directed the jury that D’s earlier acquittal was completely irrelevant. The preferable direction was that it meant no more than that the earlier jury had been unsure of D’s evidence. Any error could not possibly have affected the safety of the convictions.

The court added that trial judges should give full reasons when deciding whether fear permits the admission of absent-witness evidence, particularly because such rulings are difficult and may be appealed.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction: [2007] EWCA Crim 942.
• Lewes Crown Court His Honour Judge Rennie convicted the appellant of the offences charged following a jury trial.