GJB v R.

In an historic sexual-abuse trial, the summing up must remain even-handed and must not assume the defendant’s guilt. A judge must not endorse unsupported psychological assertions about trauma, memory or later behaviour, or place an effective burden on the defendant to explain evidence. A Lucas direction requires the jury first to decide whether the relevant statement was incorrect before considering whether it was a deliberate lie and, if so, its only innocent explanation. A good-character direction must be tailored to the substantial period without further similar allegations. A direction on delayed complaint must fairly state the defence case and make any suggested explanation conditional on the abuse having occurred. The cumulative effect of material defects may render a conviction unsafe.

The appellant was convicted at the Crown Court at Chester on 31 October 2007 of buggery contrary to section 12(1) of the Sexual Offences Act 1956 and four counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960. He received a total sentence of eight years’ imprisonment.

The allegations concerned historic sexual abuse of his two nephews between 1989 and 1991. His defence was that the allegations were fabricated amid family hostility. The Full Court granted an extension of time and leave to appeal against conviction. The principal issue was whether defects in the trial judge’s summing up, considered cumulatively, rendered the convictions unsafe.

1. Appeal allowed. The court quashed all convictions. The cumulative effect of the defects in the summing up meant that the trial had not been fair to the appellant and the convictions were unsafe.
2. The judge should not have given credence to the unsupported suggestion that the complainant’s detailed recollection of a bedroom resulted from abuse having scarred his memory. The jury could assess whether the recollection was accurate, but it could not properly infer the occurrence of abuse from that recollection without evidential support. The later suggestion that the appellant could not explain the recollection effectively reversed the burden of proof.
3. The Lucas direction was defective. Before considering whether the appellant had deliberately lied about where he had lived, the jury had first to be clearly directed to decide whether his account was incorrect. The direction instead assumed that it was incorrect.
4. The good-character direction was insufficiently tailored. In a historic sexual-abuse case, the ordinary propensity direction should address the significance of the long period without a further similar allegation. The court applied the reasoning in Small [2008] EWCA Crim 2788.
5. A judge may properly comment on the difficulty a victim of sexual abuse may have in making a complaint after a long delay. But the comment must not assume that abuse occurred and must fairly set out the defence case that the allegations are untrue. The direction approved as a model in Miller [2010] EWCA Crim 1578 did so; the present direction did not.
6. The judge should also have cautioned the jury against relying on speculative evidence of a later change in the complainant’s behaviour. The recollection concerned childhood perceptions many years earlier, and there was no proper basis for inferring that a single alleged incident caused the asserted change.
7. The formal admissions of earlier complaints were properly made. Although a direction that they were not independent evidence of the offences would have been appropriate, they were capable of damaging the defence of fabrication and did not require a direction that they could not amount to corroboration.

• Court of Appeal (Criminal Division) — granted an extension of time and leave to appeal, allowed the appeal and quashed the convictions: [2011] EWCA Crim 867.
• Crown Court at Chester — on 31 October 2007 convicted the appellant and imposed a total sentence of eight years’ imprisonment.