Cross, R. v

In a cross-admissibility case, one complainant’s account may support another’s only if the jury concludes that the accounts are genuinely independent. Independence requires the jury to exclude not only deliberate joint fabrication but also deliberate or unintentional influence by one complainant upon the other.

A judge may explain the direction by reference to the evidence. However, where there is an evidential basis for an account having been unconsciously influenced, the jury must be left to consider that possibility. A direction reducing the issue to a choice between truth and malicious joint lies removes a legitimate defence case and may make the convictions unsafe.

The appellant was convicted at a retrial of four counts of inappropriate kissing of two sisters when each was under 16. He was acquitted of further counts concerning alleged escalating conduct towards the elder sister.

There had been conversations between the sisters about their allegations before the matter was reported. The trial judge directed the jury that either sister’s evidence could support the other’s if the accounts were independent, but later summarised the issue as whether they had made up malicious lies together or were telling the truth.

The appellant appealed on alleged inconsistency of verdicts, an erroneous cross-admissibility direction, and unfairness in the summing-up. The central issue was whether the direction wrongly excluded an evidentially available case of unintentional influence between the sisters.

Appeal allowed; convictions quashed.

1. Although a proved incident concerning one complainant falls within the statutory definition of bad character in relation to another under section 112(2) of the Criminal Justice Act 2003, this was not an ordinary propensity case. The practical question in cross-admissibility is whether the separate sources of complaint make each account more likely to be accurate. The ordinary bad-character propensity direction was irrelevant and unhelpful. Nothing in R v Chopra required a different approach.

2. Evidence from one complainant may support another only where their accounts are genuinely independent. The jury must be sure that there was neither joint fabrication nor influence by one complainant upon the other. Influence may be deliberate or unintentional. Mere discussion between complainants does not necessarily deprive their accounts of independence, and the judge was entitled to leave that factual issue to the jury.

3. The initial direction correctly stated those principles. However, the later gloss reduced the issue in substance to whether the sisters had invented wicked lies together or whether the allegations were true. It did not fairly retain the distinct possibility that one sister honestly believed an allegation which had been unconsciously influenced by the other.

4. That possibility had an evidential basis and was part of the defence case. By repeatedly presenting only the alternatives of truth or joint malicious fabrication, the summing-up removed a legitimate issue from the jury. The resulting convictions were unsafe.

5. The acquittals on other counts did not make the guilty verdicts inconsistent. The complaint of general lack of balance in the summing-up added nothing material beyond the erroneous cross-admissibility direction. The Crown did not seek a retrial, and the court accepted that course.

The judgment does not identify the lower court or provide a citation for the retrial judgment.

• Court of Appeal (Criminal Division): By [2012] EWCA Crim 2277, allowed the appeal and quashed the four convictions.
• Trial court (not identified): At a retrial, convicted the appellant of four counts involving inappropriate kissing and acquitted him of further counts concerning the elder sister.
• Earlier trial: The appellant had been acquitted of additional counts concerning the younger sister after she had reached 16.