Bill, R. v

Unconvicted conduct may be admitted as bad-character evidence where it is relevant to an important issue and its admission is fair. Particular care is required where the conduct is ambiguous and may create collateral issues. A trial judge must integrate directions on such evidence with any good-character direction.

A direction that unconvicted bad-character evidence makes an accused less likely to be truthful is improper unless apt to the case. If there is a reasonable possibility that the jury relied on it, the conviction is unsafe. A jury may infer the making of indecent images from compelling evidence of a defendant’s use of the relevant computer. Possession may be transient while an image is displayed on screen.

The appellant faced three related matters arising from convictions in the Crown Court. He appealed against a conviction, after a retrial, for attempting to abduct a child. The prosecution had been permitted to rely on evidence of his earlier conduct near a children’s playground as bad-character evidence.

He also challenged an 18-month consecutive sentence for indecent assault and a term of a sexual offences prevention order. Finally, he renewed an application for leave to appeal convictions for making indecent photographs of children and possessing indecent images. The central issues were the admissibility and jury use of the playground evidence, the propriety of the sentence and order, and whether the computer evidence could sustain the image convictions.

1. The appeal against the attempted-abduction conviction was allowed. The court upheld the admission of the Ty Mawr evidence under section 101(1)(d) of the Criminal Justice Act 2003. The evidence was capable of showing reprehensible conduct and of assisting the jury on the appellant’s intention. It was not used merely to bolster a weak case.

2. The summing-up was nevertheless defective. A judge must carefully reconcile a good-character direction with directions about admissible bad-character evidence. The direction that the Ty Mawr evidence might make the appellant less likely to be telling the truth was not apt or proper. There was a reasonable possibility that the jury relied on it. That possibility made the conviction unsafe, so it was quashed.

3. The sentence appeal succeeded in part. Although the indecent assault involved grooming and a serious breach of trust, its limited physical features meant that 18 months’ imprisonment was excessive. Nine months’ imprisonment was substituted. The challenge to the relevant term of the sexual offences prevention order failed. The court could consider hearsay written evidence in that context, and the interference with Article 8 rights was proportionate to the legitimate aim of preventing crime.

4. The application concerning the indecent-image convictions was dismissed. A jury could infer that the appellant made images from evidence of his computer use, internet activity and control of the relevant accounts. Possession could be transient while an image appeared on screen. The prosecution did not have to exclude every logical possibility inconsistent with guilt; it had to enable a properly directed jury to be sure.

5. The court ordered a retrial on the attempted-abduction count, directed a fresh indictment and re-arraignment within two months, and left any bail application to Mold Crown Court.

• Court of Appeal (Criminal Division): Allowed the appeal against the attempted-abduction conviction, quashed it and ordered a retrial. It substituted nine months’ imprisonment for the 18-month sentence for indecent assault, rejected the challenge to the sexual offences prevention order, and dismissed the application concerning the indecent-image convictions.
• Crown Court: The appellant was convicted after a retrial at Mold Crown Court of attempting to abduct a child on 9 August 2008; convicted at Mold Crown Court of indecent assault on 29 October 2008; and convicted at Mold Crown Court of offences concerning indecent images on 6 February 2009. At Caernarfon Crown Court on 11 March 2009, consecutive sentences were imposed and a sexual offences prevention order was made.