Spencer, R. v

Where evidence on one count is relied on to support another, cross-admissibility is governed by the Criminal Justice Act 2003, not the former common-law rules. The jury must be directed that it may use such evidence only if satisfied that it demonstrates a propensity to commit offences of the kind charged. The direction must also address the risk of undue reliance and relevant possibilities of collusion or influence.

For a previous complaint to be evidence under section 120, the jury must decide whether it was made as soon as could reasonably be expected. A judge must not determine that condition for the jury. Material misdirections on both matters rendered the convictions unsafe.

The appellant was convicted at Bristol Crown Court on 1 October 2007 of two rapes and three indecent assaults alleged by three complainants. The allegations concerned sexual conduct towards girls aged 13 to 17, occurring between 1990 and 1999. The appellant denied all allegations and contended that the complainants had collaborated after an acrimonious separation from his long-term partner.

At trial, the judge directed the jury that evidence on one count could support another if the complainants had not jointly made false allegations. He also gave a brief direction on the complainants’ earlier complaints. The appeal challenged the cross-admissibility direction and the treatment of recent-complaint evidence.

1. Appeal allowed. The convictions were unsafe because of material misdirections concerning cross-admissibility and recent complaint evidence. The court quashed all convictions and ordered a retrial.

2. Following R v Chopra [2007] 1 Cr App R 16, cross-admissibility between counts had to be determined under the Criminal Justice Act 2003. The former common-law rules, exemplified by DPP v P [1991] 2 AC 447, had been abolished by section 99(1).

3. Under sections 101(1)(d) and 103(1)(a), the jury could use evidence on one count in support of another only if satisfied that it showed a propensity to commit offences of the kind charged. The trial judge instead permitted mutual support merely if the jury concluded that the complainants were not all lying. That direction removed the necessary propensity question from the jury. The jury should also have been warned against placing undue reliance on evidence relating to one count when deciding another.

4. The judge’s direction on complaint evidence was also wrong. Section 120 required the jury to determine whether a complaint had been made as soon as could reasonably be expected after the alleged conduct. By telling the jury that the complaints had been made “pretty soon after”, the judge effectively decided that issue and treated the complaints as supporting evidence without leaving the statutory condition to the jury.

5. The combined errors required the convictions to be quashed. A fresh indictment was ordered, with re-arraignment within two months; the appellant was to remain in custody pending any application to the appropriate court.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the convictions and ordered a retrial.
• Bristol Crown Court: On 1 October 2007, convicted the appellant of two rapes and three indecent assaults. No citation was stated in the judgment.