JD, R v

Where delayed or absent complaint is relied on to challenge a rape complainant’s credibility, a judge may give an uncontroversial, fact-sensitive direction that sexual trauma, shame and guilt may inhibit prompt reporting. A judge must not, however, introduce unproved expert learning or give an extended and emotive account that resembles a prosecution closing speech.

The summing-up must fairly put the defence case on the significance of delay. An excessive and unbalanced comment does not itself require a conviction to be quashed if, on review of the evidence and the summing-up as a whole, the appellate court is satisfied that the verdict is safe.

JD was convicted at Wolverhampton Crown Court on 8 June 2007 of six counts of rape and one count of sexual assault by penetration against his former partner.

He denied non-consensual sexual activity. His defence relied substantially on the complainant’s failure to report the alleged sexual assaults when police attended the home on 13 January 2006. She first made the allegation two days later.

JD appealed against conviction, contending that the judge’s summing-up on delayed complaint, shame and rape within a relationship was unfairly favourable to the prosecution. The central issue was the permissible extent of judicial comment in a rape summing-up.

Appeal dismissed. The judge’s comments went further than was proper, but the convictions were safe.

1. A judge may comment on how evidence should be approached where, without an appropriate warning, a jury may reach an unjustified conclusion. The court treated delay relied on to undermine a rape complainant’s credibility as an area in which comment may be needed to ensure fairness to the complainant. This was analogous in principle to the purpose of the directions in Turnbull and Lucas.

2. The comment must be uncontroversial and tailored to the facts. A judge could properly say that rape trauma may cause shame and guilt which inhibit complaint. The judge could also refer to the particular shame and embarrassment that may arise where the alleged sexual assault is by a partner, and to the complainant’s own explanation of how her complaint emerged.

3. A judge could not place uncalled expert material before the jury. Nor should the judge give a lengthy and emphatic account of the effects of rape within a relationship. Here, the impugned passage resembled a prosecution closing speech. Most importantly, it did not fairly and fully set out the defence submission that the delay supported an inference that the allegation had been fabricated to remove the appellant from the home.

4. Despite that error, the court reviewed the evidence and the summing-up as a whole. The defence case had otherwise been fully and fairly put. Its account required the jury to accept that the complainant both encouraged vigorous sexual activity and was simultaneously seeking to get rid of the appellant. The court considered that account so unlikely that the jury must have rejected it. The verdicts were therefore safe.

• Court of Appeal (Criminal Division) — dismissed JD’s appeal against conviction and held that, despite excessive and unbalanced judicial comment, the verdicts were safe: [2008] EWCA Crim 2557.
• Crown Court at Wolverhampton — convicted JD on 8 June 2007 of six counts of rape and one count of sexual assault by penetration.