Rabheru, R. v

Evidence of a defendant’s earlier conduct may be admitted under section 101(1)(c) of the Criminal Justice Act 2003 where it is important explanatory evidence that enables the jury to assess a co-accused’s claim of fear and non-participation. Its unsolicited emergence does not require discharge of the jury if it could properly have been admitted.

Where bad-character material ought not to have been adduced, discharge remains a discretionary question for the trial judge. A deficient direction about such material will not render a conviction unsafe if, viewed with the other directions and the evidence as a whole, the omission had no significant effect on the verdict.

The appellant was convicted unanimously at Leicester Crown Court, before HHJ Pert QC, of controlling prostitution for gain contrary to section 52(1) of the Sexual Offences Act 2003. He was sentenced to four years’ imprisonment.

During the trial, a co-defendant volunteered that the appellant had formerly been her pimp. The judge refused to discharge the jury, considering the evidence potentially admissible as explanatory bad-character evidence under section 101(1)(c) of the Criminal Justice Act 2003. The appellant appealed by leave of the single judge.

The issues were whether the jury should have been discharged and whether the summing-up gave adequate guidance about the volunteered evidence so that the conviction was safe.

1. Appeal dismissed. The trial judge was entitled to refuse to discharge the jury. Although a formal application should ideally have preceded admission, the co-defendant’s evidence was potentially important explanatory evidence under section 101(1)(c) of the Criminal Justice Act 2003. It assisted the jury in assessing whether her acts were participation in the plan to control the complainant or acts done through fear of the other defendants.

2. The judge’s reasoning plainly concerned section 101(1)(c), not section 101(1)(e). Since the evidence could properly have been admitted, its volunteered introduction did not justify the drastic course of discharging the jury.

3. Alternatively, even if the evidence should not have been adduced, discharge was a discretionary matter requiring consideration of all the circumstances and the nature of the evidence. Following Weaver [1968] 1 QB 353, the court would not lightly interfere with that exercise of discretion. The fact that the evidence came from a co-accused, rather than an independent witness, supported the refusal to discharge.

4. The summing-up should more clearly have warned the jury to treat the assertion that the appellant had been the co-defendant’s pimp with caution. The omission was nevertheless not grave. The judge had given an appropriate bad-character direction concerning other evidence, had warned that the co-defendant might have her own interests to serve, and no further direction was sought after the summing-up.

5. The verdict was safe. The complainant’s core account was strongly supported by the guilty pleas of two co-defendants and by further evidence linking the appellant to the offending. Applying the safety test referred to in Pendleton [2001] UKHL 66, the identified defect did not materially undermine the conviction.

• Court of Appeal (Criminal Division): By [2013] EWCA Crim 137, dismissed the appellant’s conviction appeal.

• Leicester Crown Court: On 20 January 2012, the appellant was unanimously convicted before HHJ Pert QC of controlling prostitution for gain and sentenced to four years’ imprisonment.