Trewin, R. v

Where unproved allegations are admitted as bad-character evidence, the jury should consider each allegation separately. They should use an allegation as propensity evidence only if sure of its reliability and accuracy. The direction should identify the allegations, require unproved allegations to be disregarded, and warn against undue weight.

Criminal Justice Act 2003 section 120(2) governs the use of a previous statement once admitted to rebut fabrication. It permits use of the statement for its truth, but does not itself govern admissibility. A good-character direction should make clear that good character has evidential significance for both credibility and propensity.

Following a retrial at Truro Crown Court, the appellant was convicted of nine historic sexual offences against two boys. He denied all sexual conduct.

The Crown relied on evidence from three further young men as bad-character evidence of a propensity to molest adolescent boys. It also adduced hearsay evidence from persons to whom the five young men had made complaints. The appellant challenged the admission and summing-up of that evidence, the absence of a contamination direction, the directions on proof, and the good-character direction.

The central issue was whether the combined deficiencies in the directions and evidential safeguards rendered the convictions unsafe.

1. Appeal allowed. The convictions were quashed because they were unsafe. A further trial was ordered on all counts of which the appellant had been convicted.

2. The evidence of the three additional witnesses was relevant to the important issue of propensity and had properly been admitted under section 1(1)(d) of the Criminal Justice Act 2003. However, it concerned unproved allegations rather than convictions. The judge should therefore have directed the jury to consider each additional allegation separately, to disregard any allegation not proved to the criminal standard, and to use only a proved allegation for its permitted propensity purpose. The direction instead treated the three witnesses’ evidence compendiously.

3. The defect was material when combined with the substantial evidence of previous complaints. Some of that evidence arguably should not have been before the jury. Although the jury had been told to consider each count and each indicted complainant separately, the absence of equivalent safeguards for the additional allegations meant that the convictions could not safely stand.

4. Section 120(2) of the Criminal Justice Act 2003 does not determine whether a previous complaint is admissible. Once a statement has been admitted to rebut an allegation of fabrication, it permits its use as evidence of the truth of its contents. The admissibility decision must instead be made by applying the relevant pre-existing principles and requires careful scrutiny, which may depend on the complainant and the cross-examination actually advanced.

5. A direction about innocent contamination was not required on the evidence and issues raised at trial. The witnesses had been challenged as liars, rather than as persons whose accounts might have been unconsciously influenced by others’ allegations.

6. The good-character direction was also defective because it left the significance of good character entirely to the jury. Good character has evidential significance both for credibility and for the likelihood of offending. That defect alone would not have made the convictions unsafe, particularly because the judge later described the good-character evidence as powerful.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the convictions and ordered a retrial.
• Crown Court at Truro: Following a retrial before Judge Rucker and a jury, convicted the appellant on nine counts on 2 December 2005.
• Crown Court at Truro: The earlier trial ended with the jury unable to agree.