Thomas v Regina

Offences may be joined as a series of the same or similar character only where a sufficient nexus makes them a series. A charge of perverting the course of justice based on pressure to withdraw uncharged earlier rape allegations was not sufficiently connected with later, discrete rape allegations.

Where the evidence permits the possibility that an accused sought to persuade a witness believed to be false to tell the truth, the jury must be directed that this does not necessarily constitute an attempt to pervert the course of justice. Even a proper end may be pursued by improper means. Directions must also prevent a jury from treating earlier untried allegations as proof of later allegations without deciding their truth. Confusing directions rendered the rape convictions unsafe.

Thomas v Regina was an appeal against convictions at Snaresbrook Crown Court for three rapes contrary to section 1 of the Sexual Offences Act 2003 and attempting to pervert the course of justice. The appellant received concurrent eight-year sentences for rape and a consecutive two-and-a-half-year sentence for the perverting offence.

The perverting count alleged that, while remanded in custody on earlier rape allegations, the appellant pressured the complainant to withdraw them and say they were false. The rape counts concerned alleged conduct several months later. The appeal challenged the joinder of those counts and the adequacy of the jury directions, including directions on the earlier allegations and on the possibility that the appellant believed them false.

1. Appeal allowed. The court quashed all four convictions and directed a retrial.

2. Count 4, alleging an attempt to pervert the course of justice, was misjoined with the three April 2006 rape counts. Applying the nexus requirement explained in R v Ludlow [1971] AC 29, the court held that there was no sufficient connection between alleged pressure to withdraw uncharged rape allegations from 2005 and allegations of rape occurring months later. The two groups did not form a series of offences of the same or similar character.

3. The direction on count 4 was independently unsatisfactory. The appellant's case was that he believed the earlier allegations were false and wanted the complainant to tell the truth. The jury should therefore have been directed in accordance with R v Kellett (1975) 61 Cr App 240: persuading a witness who is, or is believed to be, false to speak the truth does not necessarily amount to attempting to pervert the course of justice. The means used must nevertheless be proper. There was evidence capable of raising that possibility, and the conviction on count 4 was quashed.

4. The rape convictions were unsafe. The jury were told that they need not decide whether the complainant had been raped in December 2005, but they were not told that the mere making of those earlier complaints was not evidence that rape occurred in April 2006. There was a real risk that the jury treated the complaints as supporting the later allegations without resolving their truth. The directions also treated falsity as an essential element of count 4 while telling the jury not to decide the question on which falsity depended. This was apt to confuse the jury on all counts.

5. The lack of a separate direction on the alleged earlier “fantasy rape” did not itself render the convictions unsafe, given the different circumstances and relationship in April 2006. The court expressed no view on the proper course at any retrial.

• Court of Appeal (Criminal Division)—allowed the appeal, quashed the convictions, and directed a retrial: [2008] EWCA Crim 183.
• Snaresbrook Crown Court—convicted the appellant of three counts of rape and one count of attempting to pervert the course of justice, and imposed a total sentence of 10½ years’ imprisonment.