RB, R. v

Where alleged misconduct occurred when a defendant was under 14, the protective principles in section 108(2) of the Criminal Justice Act 2003 should also govern non-conviction bad-character evidence offered under section 101(1)(d). In any event, section 101(3) requires exclusion where the proposed propensity inference would be unfair. It was dangerous to infer that an adult had a propensity for sexual activity with children from alleged conduct when he was aged 13 or 14 with a younger relative. If inadmissible bad-character evidence may have affected cross-admissibility between counts, and the available record does not permit confidence in the jury directions, the convictions are unsafe.

The appellant was convicted at Cambridge Crown Court of raping his 13-year-old daughter and of two specimen counts of sexual activity with his young stepson.

The prosecution had been permitted to adduce bad-character evidence from the appellant’s adult nephew. The nephew alleged that, when he and the appellant were children, the appellant had performed sexual acts upon him. The prosecution also relied on an earlier rape conviction and evidence from the appellant’s niece.

On appeal against conviction, the principal issue was whether the nephew’s evidence was admissible and, if not, whether the three convictions remained safe. The court also gave obiter guidance on joinder and the proposed use of other bad-character evidence at the retrial.

1. Appeal allowed. The court quashed all three convictions and ordered a retrial. The evidence of JB, the appellant’s nephew, ought not to have been admitted.
2. Although section 108(2) of the Criminal Justice Act 2003 expressly concerns convictions for offences committed when the defendant was under 14, its principles should be applied when the prosecution seeks to rely under section 101(1)(d) on unconvicted misconduct committed at that age. Otherwise, the prosecution could rely on the conduct underlying a conviction that section 108(2) itself prevented it from adducing. On the material before the trial judge, the alleged offence disclosed by JB’s statement was triable either way, so the statutory condition was not met.
3. Even assuming that the appellant was 14 when the alleged conduct occurred and section 108 did not therefore apply, admission was unfair under section 101(3). The proposed inference was that the adult appellant had a propensity for sexual activity with children because of alleged conduct when he was 13 or 14 with a nine-year-old relative. That was a dangerous basis for a propensity finding.
4. The Crown accepted that counts 4 and 5 were unsafe. Count 3 was also unsafe. Although the judge directed separate consideration of each count, the incomplete record of the summing-up did not show clearly how cross-admissibility had been left to the jury. The directions appeared capable of inviting a global assessment of the allegations.
5. Obiter, for the retrial: the counts were capable of joinder under rule 9 of the Indictment Rules, since they alleged sexual abuse of children in the appellant’s care. The previous rape conviction was capable of admission under section 101(1)(d). However, it was unfair to use the appellant’s answer to a direct police question about sexual interest in children or young girls as a false impression triggering section 101(1)(f).

• Court of Appeal (Criminal Division) — by [2008] EWCA Crim 1850, allowed the appeal, quashed the convictions on counts 3, 4 and 5, and ordered a retrial.
• Crown Court at Cambridge — on 23 January 2007, convicted the appellant of rape and two counts of sexual activity with a child.