N(H) v R.

Where allegations by several complainants are not treated as cross-admissible, each allegation must be assessed on its own evidence. A warning about collusion or innocent contamination is not required merely because complainants have discussed their allegations.

If complaints are cross-admissible, the jury must exclude collusion and innocent contamination before treating their similarity as support. Otherwise, a warning is required only where the evidence reveals a real possibility that contamination has affected reliability. A fair general direction on whether inconsistencies go to the root of reliability need not identify every particular discrepancy.

The appellant was convicted at Chester Crown Court of sexual offences against two young complainants. The prosecution did not invite the jury to use one complainant’s evidence as support for another. The trial judge directed the jury to consider each count and each complainant separately.

On appeal, the appellant contended that the judge should have warned expressly of collusion and innocent contamination because the complainants had discussed the allegations before police interviews. He also complained that the judge had not specifically identified an inconsistency about a telephone conversation between two complainants. The central issue was whether those omissions rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe. The jury had been directed to decide each allegation separately and had not been invited to treat similarities between the complaints as mutually supporting evidence.

2. Where evidence is cross-admissible, a jury must exclude collusion or innocent contamination before using the similarity of complaints to reason that they are unlikely to be coincidentally false. Save in an obvious case, a tailored warning will be needed. This follows the approach in H [1995] 2 AC 596 and is consistent with the statutory regime in the Criminal Justice Act 2003.

3. Where complaints are not cross-admissible, a warning is required only if the evidence reveals a real possibility that deliberate collusion or innocent contamination has affected a complainant’s reliability. The need depends on the evidence and the case advanced at trial. Here, the defence case was deliberate fabrication, motivated by loyalty and support for another complainant. The witnesses’ conversations were explored in detail. There was no sensible evidential route to innocent contamination as an alternative to deliberate lying.

4. The judge’s general direction on inconsistencies was sufficient. He accurately summarised the evidence and instructed the jury to decide whether discrepancies were peripheral or went to the root of reliability. He was not required to isolate the particular inconsistency concerning which complainant first disclosed sexual touching during their telephone conversation.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2011] EWCA Crim 730.
• Crown Court at Chester: following trial before HH Judge Dutton DL and a jury, the appellant was convicted on six counts; the jury did not reach a verdict on a seventh count.