SB, R. v

Where prosecution evidence is weak or inconsistent but its strength depends on a witness’s reliability, the case should remain with the jury if a properly directed jury could properly convict. A trial judge has a wide discretion over cautionary directions. No formula is required where the summing-up fairly identifies the reliability issue and the need for care.

A sentence of imprisonment for public protection should not be imposed merely because an offence is grave or the offender denies it. The statutory dangerousness threshold under the Criminal Justice Act 2003 requires a sufficient evidential basis for future risk.

The appellant was convicted at Chelmsford Crown Court of rape of a 15-year-old psychiatric in-patient. He was acquitted of four counts of sexual activity with a child. He admitted sexual activity but denied penetration and maintained that it had been initiated by the complainant.

He appealed against conviction and sentence. The conviction appeal challenged the refusal of a submission of no case to answer and the absence of a specific cautionary direction about the complainant’s uncorroborated evidence and alleged unreliability. The sentence appeal challenged imprisonment for public protection and the minimum term. The central questions were whether the conviction was unsafe and whether the statutory dangerousness criterion justified an indeterminate sentence.

1. The appeal against conviction was dismissed. Applying R v Galbraith (1981) 73 Cr App R 124, the court held that this was properly a case for the jury. The complainant’s reliability, the competing psychiatric evidence and the alleged inconsistencies in her account were matters for the jury to assess. There was evidence capable of supporting conviction, including her account and forensic evidence. R v Cannings [2004] 2 Cr App R 7 was far removed from the facts because this was not a case turning exclusively or almost exclusively on a serious expert dispute at the frontiers of knowledge.
2. The summing-up was fair and lucid. Under R v Makanjuola [1995] 2 Cr App R 469, the trial judge had a wide discretion as to a cautionary direction and no prescribed words were required. Although the judge had not repeated the particular wording foreshadowed when rejecting the no-case submission, he had squarely directed the jury to the complainant’s alleged unreliability and the conflicting expert evidence. There was therefore no material omission, Wednesbury error or resulting unsafety.
3. The appeal against sentence was allowed. The court accepted that the rape was serious and that, if a determinate sentence were appropriate, eight years’ imprisonment was not manifestly excessive. But imprisonment for public protection was a draconian measure of last resort. Applying section 225(2)(b) of the Criminal Justice Act 2003, the court was not satisfied that the dangerousness criterion had been met. The judge had relied solely on the offence; the pre-sentence report gave no supporting reasoning, and denial of the offence did not logically establish dangerousness. The sentence of imprisonment for public protection was quashed and replaced with eight years’ imprisonment, less 585 days already served.

• Court of Appeal (Criminal Division): By [2010] EWCA Crim 2620, dismissed the appeal against conviction but allowed the appeal against sentence to the extent of quashing imprisonment for public protection and substituting a determinate sentence of eight years’ imprisonment.
• Crown Court at Chelmsford: On 21 October 2009, the appellant was convicted of rape by an 11:1 majority and acquitted of four counts of sexual activity with a child. On 8 January 2010, he received imprisonment for public protection with a minimum term of two years and 145 days.