Benabbou, R. v

Where properly joined counts concern allegations whose evidence is cross-admissible, severance under section 5(3) of the Indictments Act 1915 will be exceptional. Clear cautionary directions can avoid unfairness.

Bad-character evidence may be technically admissible to show propensity but must be excluded under section 101(3) of the Criminal Justice Act 2003 if its limited probative value is outweighed by a highly prejudicial effect on trial fairness. A previous rape does not necessarily constitute unusual behaviour for propensity purposes. Where a defendant makes a substantial attack on prosecution witnesses’ character, evidence of the defendant’s bad character may properly be admitted under section 101(1)(g).

The appellant was convicted of sexual assault and assault by penetration, and received extended sentences totalling eight years’ imprisonment, including four years’ custody. The offences had initially been charged separately. The trial judge joined the indictments, declined severance, and admitted evidence of earlier convictions for rape and robbery.

The appellant appealed against conviction. He challenged the refusal to sever, the admission of both earlier convictions, and the adequacy of the jury directions on the relationship between the two allegations. The central issue was whether the admission of the rape conviction had rendered the convictions unsafe.

1. Appeal allowed. The previous rape conviction was technically admissible as potential propensity evidence, but it should have been excluded. Its similarities to the charged offences were limited, so its probative value was limited. Its circumstances created a highly prejudicial effect which could distract the jury from, or blind it to, the real issues. The convictions were therefore unsafe.

2. A rape does not necessarily amount to the unusual behaviour contemplated in Hanson and others [2005] 2 Cr.App.R 21. Whether one previous sexual offence has sufficient probative force depends on the facts and degree of the particular case.

3. The judge had been entitled to refuse severance. The counts were properly joined, and the evidence on the two allegations was cross-admissible. In those circumstances severance under section 5(3) of the Indictments Act 1915 would be exceptional. Appropriate cautionary directions could remove any resulting unfairness.

4. The robbery conviction was properly admitted under section 101(1)(g) of the Criminal Justice Act 2003. The appellant had made a substantial attack on the character of two prosecution witnesses. The jury was entitled to know the character of the person making that attack. The prior admission of the rape conviction did not alter the conclusion, because the appellant’s account had already impugned those witnesses’ character.

5. The jury should expressly have been directed that evidence on one allegation was not to be used in deciding the other, and that guilt on one count had no bearing on the other. The late direction to consider the counts separately was inadequate, but this defect alone would not have justified allowing the appeal.

6. A retrial was ordered at Southampton Crown Court unless the presiding judges of the Western Circuit directed otherwise. A fresh indictment was to be served and the appellant arraigned within two months. The appellant was to remain in custody, subject to any application to the Crown Court if circumstances changed.

• Court of Appeal (Criminal Division): allowed the appeal against conviction and ordered a retrial: [2012] EWCA Crim 3088.
• Crown Court: the appellant was convicted on 25 October 2011 of sexual assault and assault by penetration. On 1 December 2011 he received extended sentences totalling eight years’ imprisonment.