Braithwaite, R. v

A trial judge may explain that a complainant’s withdrawal of allegations in a domestic relationship can have causes other than their falsity. The explanation must be proportionate and even-handed. A summing-up becomes vulnerable where it over-emphasises possible reasons for withdrawal so as to undermine the defence case or reinforce the prosecution case.

Nevertheless, a conviction remains safe where the misdirection could not realistically have affected the jury’s assessment of compelling independent evidence. The appellate court will assess the summing-up in the context of the whole case, including the verdicts on other counts and the absence of evidence supporting an alternative explanation.

The appellant was convicted at Blackfriars Crown Court on 14 July 2011 of making threats to kill, contrary to section 16 of the Offences Against the Person Act 1861. He was acquitted of two allegations of assault by beating.

Threatening text messages had been sent to the complainant from a pay-as-you-go telephone found in the appellant’s flat and accepted to be his. The complainant had later sought to withdraw her allegations. Her accusatory and withdrawal statements were read to the jury because she did not attend trial.

On appeal, the appellant contended that the judge’s lengthy discussion of possible reasons for her withdrawal made the summing-up unfair. He also sought permission to appeal a four-year sentence, contending that it had been artificially extended to overlap with his prospective release on licence for an earlier robbery sentence.

1. The appeal against conviction was dismissed. The judge was entitled to tell the jury that a complainant’s withdrawal of allegations in a domestic relationship may have explanations other than that the original allegations were false. That was relevant to the defence reliance on the withdrawal statements.

2. The judge nevertheless went too far. The discussion extended over several pages and over-emphasised alternative explanations for the withdrawal. Its general thrust undermined the defence case and appeared to underline the Crown’s submissions. Such matters should have been addressed more lightly and without displacing the jury’s assessment of whether the allegations might have been untrue.

3. The excess did not render the conviction unsafe. The threatening texts were unquestionably sent to the complainant from the appellant’s telephone. There was no evidence that another person had access to it or had sent the messages. The jury acquitted on the assault counts, where there was no supporting evidence, but convicted on the text-message count, where no rational alternative explanation arose on the evidence. The summing-up therefore could not have affected the fairness of the jury’s verdict on threats to kill.

4. Permission to appeal sentence was refused. A sentencing judge must impose a sentence appropriate to the offence and must not artificially lengthen it because of another sentence or prospective licence period. On the facts, however, the gravity and language of the threats, the appellant’s previous convictions, his hopeless defence, and the complete absence of explanation, apology or contrition justified the four-year sentence.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 2053, dismissed the appeal against conviction and refused permission to appeal against sentence.
• Blackfriars Crown Court: On 14 July 2011, convicted the appellant of making threats to kill contrary to section 16 of the Offences Against the Person Act 1861, acquitted him of two counts of assault by beating, and imposed a four-year sentence.