Loftus & Anor, R. v

A conviction is not unsafe merely because later research narrows the possible period for historic offences, where the particular offences proved could still have occurred and the change does not materially affect the reliability issues explored at trial.

Evidence remains bad character evidence even if relevant to the facts charged. It may nevertheless be admitted under Criminal Justice Act 2003 section 101(1)(e) where a co-accused needs it to advance a relevant defence. A reviewing court should not substitute its view of witnesses’ credibility for that of a jury which heard them and fully examined the reliability issues.

Loftus and Comben appealed convictions arising from allegations of historic sexual abuse within a dysfunctional family in the late 1970s. Loftus was convicted of a particular oral-sex incident involving both children and of rape of the elder child. Comben, their mother, was convicted of wilful neglect connected with the oral-sex incident and of an unrelated assault.

Loftus contended that later records substantially reduced the available period in which the offences could have occurred. He also challenged the handling of social-services material, bad-character evidence, severance and the refusal to obtain further medical evidence. He appealed his concurrent 12-year sentence for rape. Comben’s appeal depended on the safety of Loftus’s convictions.

1. Both conviction appeals were dismissed, as was Loftus’s appeal against sentence. The newly established custody dates reduced the possible period for offending, but did not make either specific incident of which Loftus was convicted impossible. The jury had convicted only where there was either an admitted incident or compelling particularised evidence. The reliability and dating difficulties had been fully explored at trial.
2. The court rejected complaints concerning the use of social-services records, cross-examination and the absence of medical records. The alleged additional material did not materially affect the issues the jury had to decide. Dr Pillai’s proposed evidence added nothing: it did not establish the nature of penetration alleged and would not have afforded a ground for allowing the appeal.
3. The court held that evidence of Loftus’s alleged non-consensual sexual conduct towards Comben was bad character evidence. It was not excluded by section 98(a) of the Criminal Justice Act 2003 merely because it related to facts in issue. However, the judge’s alternative ruling was correct: it was admissible under section 101(1)(e) because Comben was entitled to advance relevant evidence in her defence. That route was not subject to a residual discretion under sections 101(3) or 103(3). The directions adequately confined the evidence to what it could show about each defendant’s behaviour and attitude towards the children, and warned against prejudice. Refusal of the late severance application was correct.
4. A court of review should not replace the jury’s assessment of complainants whom it has not heard or seen. The jury had considered the long delay, missed opportunities to complain, inconsistencies and expert evidence concerning recovered memory. Its selective verdicts showed a rational distinction between allegations.
5. For sentence, the applicable early-release regime did not create a striking disparity requiring a reduction. The 12-year rape sentence was not wrong in principle or manifestly excessive. The seriousness of the offending, its exploitative nature and Loftus’s criminal history outweighed the scant mitigation arising from the passage of time.

• Court of Appeal (Criminal Division): dismissed Loftus’s and Comben’s appeals against conviction, and dismissed Loftus’s appeal against sentence.
• Trial court: a jury convicted Loftus of the specified oral-sex incident and rape, and convicted Comben of wilful neglect and assault. Loftus received two years for gross indecency and 12 years’ imprisonment for rape, concurrently.