PD, R. v

Where a defendant has no previous convictions for sexual offences but has admitted other misconduct, the proper course will ordinarily be to give a qualified character direction on propensity. The jury must decide what weight to give the absence of relevant convictions. A judge should not withhold the direction merely because the prosecution evidence may substantially reduce its weight.

The omission may render a conviction unsafe where the case turns on whether the complainant or defendant is believed. This is especially so where the trial judge had considered that a qualified direction could properly be given.

The respondent was convicted at the Inner London Crown Court of four assaults occasioning actual bodily harm, seven counts of anal rape of his wife, and intimidation. He denied the rapes, while admitting some violence during the marriage. The prosecution case included an article written by him which described anal rape as a punishment.

The alleged rapes were initially said to have occurred in October 2007. During cross-examination, the complainant accepted that they must instead have occurred in October 2006. The appeal concerned the trial judge’s failure to give an agreed modified character direction concerning the absence of previous sexual convictions, and the late amendment of the indictment to reflect the earlier dates.

1. The appeal was allowed in respect of the convictions for anal rape. The court held that those verdicts were unsafe because the judge had failed to give any character direction, despite having indicated that a modified direction would be appropriate.

2. The appellant was not entitled to an unqualified direction on credibility. His admissions of violence and other aspects of the evidence meant that he could not rely on absolute good character. However, he was entitled to a qualified propensity direction: the jury should have been told that the absence of previous convictions for sexual offences was capable of making it less likely that he had committed the alleged rapes.

3. The fact that the prosecution evidence could diminish the force of that consideration did not justify withholding the direction. It was for the jury, rather than the judge, to assess its weight. The court applied the principles concerning qualified character directions derived from The Crown v Vye [1993] 97 Cr App R 134, R v Aziz [1996] AC 41, and R v Gray [2004] EWCA Crim 1074.

4. The omission was a serious misdirection. Although the prosecution case was strong, the central issue was whether the complainant or the appellant was to be believed. In such a case character directions have particular importance. The court could not conclude that the rape verdicts remained safe despite the omission, particularly as the trial judge himself had considered that a qualified direction could be given without absurdity or charade.

5. The court did not need to determine the second ground. It nevertheless stated that the amendment of the indictment after the complainant’s evidence had caused no unfairness. It invited written submissions on whether a retrial should take place on the rape counts.

• Court of Appeal (Criminal Division) — allowed the appeal in [2012] EWCA Crim 19, holding the convictions for anal rape unsafe because of the omitted modified character direction.
• Inner London Crown Court — the respondent was convicted of assaults occasioning actual bodily harm, anal rape, and intimidation following trial before His Honour Judge Roberts.