R v Berry

A previous complaint admitted under Criminal Justice Act 2003, section 120 is evidence of its truth if the statutory conditions are met. A jury should ordinarily be reminded that such evidence comes from the complainant rather than an independent source. The absence of that reminder does not make a conviction unsafe where that point is obvious and a further direction would overcomplicate the case.

Where complainants’ evidence has been presented and directed as mutually supportive, convictions remaining after another complainant’s convictions are quashed are unsafe if the jury may have relied on that now-discredited evidence when reaching its verdicts.

Brian Berry was convicted at Canterbury Crown Court in February 2009 of sexual offences concerning EG and three sisters, R, K and L. He received a total sentence of 13 years’ imprisonment.

On an earlier appeal, this court quashed the convictions concerning EG and reduced the total sentence to 10 years’ imprisonment: [2010] EWCA 2317. The other convictions were then unchallenged.

Following a reference by the Criminal Cases Review Commission, the appellant challenged the judge’s direction on complaint evidence under section 120 and contended that the quashing of the EG convictions made the remaining convictions unsafe. The central issue was whether the jury might have used EG’s evidence as cross-admissible support for the evidence of the three sisters.

1. The appeal was allowed in part. The challenge to the section 120 direction failed. The convictions concerning the three sisters were unsafe, however, because the jury might have relied on EG’s evidence as support for them after accepting EG as a credible witness. Those convictions were set aside.

2. Section 120 of the Criminal Justice Act 2003 makes a qualifying previous complaint admissible as evidence of its truth. The court accepted the direction stated in R v AA [2007] EWCA Crim 1779: when assessing its weight, a jury should bear in mind that the complaint comes from the same person who testifies and not from an independent source.

3. That direction was not a formula to be given regardless of context. Here, it was obvious that the mother’s and family friend’s evidence of the sisters’ complaints originated with the sisters. The evidence was only supporting evidence. An express independence direction would have overcomplicated the summing-up and its absence did not render the convictions unsafe.

4. The prosecution had advanced EG’s and the sisters’ accounts as mutually supportive. The judge directed that, if the complaints were independent, the evidence of each complainant could support the others. The jury’s guilty verdicts on the EG counts showed that it accepted EG as reliable. Since those convictions were later quashed, the court could not exclude the possibility that EG’s evidence had contributed to the verdicts concerning the sisters. Those verdicts were therefore unsafe.

5. The Crown sought a retrial of the counts concerning R. Despite the history of the proceedings and the appellant’s age, the court held that a retrial was in the overwhelming interests of justice and would give further directions for it.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court rejected the complaint-direction ground but held that the convictions concerning the three sisters were unsafe. It set them aside and held that a retrial of the counts concerning R was in the overwhelming interests of justice.

• Court of Appeal (Criminal Division): The earlier appeal quashed the convictions concerning EG and reduced the total sentence to 10 years’ imprisonment: [2010] EWCA 2317.

• Crown Court at Canterbury: The appellant was convicted in February 2009 and sentenced to a total of 13 years’ imprisonment, less time on remand.