Farquharson v R.

Where evidence of an uncharged earlier sexual allegation is admitted in a trial for sexual offences, the jury must receive a separate and tailored direction about its relevance to the sexual counts. The direction should identify any material similarities, address delay and resulting prejudice, and explain whether the evidence is capable of proving a propensity to commit further sexual offences.

Directions must not convey partiality towards a witness or undermine the burden of proof. A conviction is unsafe where the appellate court cannot be sure that the jury used such evidence properly, even if the jury returned different verdicts on separate counts.

The appellant was tried at Wood Green Crown Court on allegations of attempted rape, sexual assault and harassment putting the complainant in fear of violence. The jury acquitted him of attempted rape but convicted him of sexual assault and harassment. He appealed only against the sexual-assault conviction.

At trial, the prosecution adduced evidence from a former partner, XT, including a disputed allegation that the appellant had sexually assaulted her several years earlier. The trial judge directed the jury on the evidence alongside extensive evidence of alleged harassment.

The central issue was whether the directions adequately explained the limited and specific relevance of XT’s sexual allegation to the sexual counts.

1. Appeal allowed. The court could not be satisfied that the conviction for sexual assault was safe.
2. The evidence of XT’s alleged sexual assault required a distinct direction directed to counts 1 and 2. If the prosecution relied on similarities between XT’s and the complainant’s accounts, the judge should have identified the relevant similarities. The jury also required separate guidance on the effect of delay and on whether one disputed incident in 2005 could establish a propensity to commit sexual offences in 2010.
3. The directions instead allowed the sexual allegation to become subsumed within extensive evidence of harassment. The judge did not clearly distinguish the alleged sexual misconduct from the harassment allegations, or explain the particular relevance of XT’s evidence to the sexual counts.
4. The judge’s suggestion that the jury should not fail XT, coupled with the omission of the defence response to the alleged false impression created in interview, had an unintended appearance of partiality. Those directions also tended to reverse the burden of proof.
5. The differing verdicts on attempted rape and sexual assault did not resolve the defect. The court could not determine the use made by the jury of XT’s sexual allegation, and there was a real danger that it had been given undue importance. The conviction on count 2 was therefore unsafe.

• Court of Appeal (Criminal Division) — Allowed the appeal against the conviction on count 2: [2011] EWCA Crim 2168.
• Wood Green Crown Court — The jury acquitted the appellant on count 1 and convicted him on counts 2 and 3. Only the conviction on count 2 was challenged on appeal.