Miller v R

A single previous conviction may be capable of establishing a propensity to commit offences of the kind charged, although its weight will depend on its circumstances. Differences in age, setting and offending pattern do not prevent that conclusion where both allegations disclose an underlying abuse of power. Youth sentencing principles do not alter that evidential question.

In sexual cases, a judge may give an uncontroversial and fact-sensitive direction against stereotypical assumptions about delayed complaint. The judge must not introduce unproved expert material. A lengthy direction does not render a conviction unsafe where it is balanced and leaves the factual assessment to the jury.

The appellant was convicted at Wood Green Crown Court of five counts of rape of a child under 13. He received indeterminate sentences of imprisonment for public protection, with minimum terms of seven years.

The prosecution relied on the appellant’s 1997 conviction for rape as evidence of propensity under the Criminal Justice Act 2003. The appellant contended that the earlier gang rape of a teenager, committed when he was 16, could not demonstrate a propensity to rape his 11-year-old niece.

He also challenged the trial judge’s summing-up concerning the complainant’s delayed disclosure. The central issues were whether the prior conviction was capable of amounting to propensity evidence and whether the direction on delay made the convictions unsafe.

1. Appeal dismissed. The appellant’s convictions were safe.

2. Under the Criminal Justice Act 2003, there is no minimum number of prior events required to establish propensity. A single conviction will often be weak evidence, but may be capable of demonstrating propensity where its circumstances have real probative force. Applying the approach in R v Hanson [2005] 2 Crim. App. R. 21, the court held that the 1997 conviction was capable of doing so. Although the earlier offence was a gang rape of a teenager and the charged offences concerned an alleged rape of a child, both involved an underlying abuse of power and non-consensual sexual conduct.

3. The appellant’s youth when he committed the previous offence was relevant to weight, but did not prevent the conviction from being capable of evidencing propensity. The court did not decide whether the lapse of time rendered admission unjust under section 103(3), because the defence had not sought such a ruling and had intended to agree admission under section 101(1)(a).

4. A judge may warn a jury against stereotypical assumptions about how a complainant in a sexual case would behave or when a complaint would be made. Following R v D [2008] EWCA Crim 2557, any comment must be uncontroversial, must not introduce unproved expert learning, and should be tailored to the evidence. The direction was longer and more illustrative than necessary, but it was balanced, made clear that the issues were for the jury, and did not exceed those limits.

5. It would have been preferable for the judge to discuss the proposed directions with counsel before speeches. That omission did not create unfairness or undermine the safety of the convictions.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2010] EWCA Crim 1578.
• Wood Green Crown Court: The appellant was convicted by a majority of five counts of rape of a child under 13 and sentenced to imprisonment for public protection.